R v Richards - [2016] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RICHARDS
[2016] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)
28 July 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
CRIMINAL LAW - PROCEDURE - VERDICT - POWER OF JUDGE TO DIRECT VERDICT
Appeal against conviction.
The appellant was charged on an Information with three counts of aggravated making a child amenable to a sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA'). The Information did not charge any alternative offences.
The charges were based on online communications made by the accused to a police officer posing in the course of his duties as a 13 year old girl. The offences were said to be aggravated by the appellant’s knowledge that the victim was under the age of 14 at the time of the offence, pursuant to s 5AA(1)(e) of the CLCA.
At the close of the prosecution case, the appellant made a no case to answer submission. The Judge ruled that there was no case to answer on all three charged aggravated forms of the offences, however that there was a case to answer on the basic forms of the offences.
The Judge rejected the appellant’s submission that upon finding that the appellant had no case to answer in relation to each of the aggravated offences, the Judge was bound to immediately acquit the appellant of those charges.
The trial proceeded on the basis that the only offences in issue were the basic forms of the three offences. The Judge found the appellant not guilty of the charged aggravated offences in relation to the first two counts, but guilty of the basic offences for those counts. The Judge found the appellant not guilty of both the aggravated and basic forms of the offence in count 3.
The appellant appeals against his convictions on the grounds that the Judge erred in failing to enter a judgment of acquittal at the end of the prosecution case when there was no evidence of the aggravating circumstance and in allowing the trial to proceed for the purpose of determining the appellant’s guilt of the basic offence. The appellant complains that the Judge erred in the construction and application of the term ‘sexual activity’ in s 63B(3)(b) of the CLCA.
Held per Kourakis CJ (Nicholson and Lovell JJ agreeing), dismissing the appeal:
1. It is a rule of common law trial procedure that a charge alleges not only the offence expressly pleaded but also any lesser offence.
2. The Judge was not required to enter a judgment of acquittal when the prosecution failed to make out a case to answer on the major offence but led evidence on which a verdict of guilty could properly be returned on its common law alternative.
3. The Judge was correct to find that exposure of underwear worn by one person so that it can be viewed by another through electronic transmission of the image for the sole purpose of satisfying the sexual interest of that other person is a ‘sexual activity’.
Criminal Law Consolidation Act 1935 (SA) ss 5AA(1), 63B(3), 281; Juries Act 1927 (SA) s 57, referred to.
R v McLaren (1996) 189 LSJS 466; R v Prasad (1979) 23 SASR 161, applied.
R v Richards [2015] SADC 44; R v Richards (No 2) [2016] SADC 2; R v Carson (1991) 92 Cr App R 236; R v Livesey [2007] 1 Cr App R 35, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Sexual Activity"

R v RICHARDS
[2016] SASCFC 79
Court of Criminal Appeal: Kourakis CJ, Nicholson and Lovell JJ

KOURAKIS CJ: The appellant was charged with three counts of the aggravated form of making a child amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). On 20 January 2016, the appellant was found guilty after a trial by judge alone of two counts of the basic form of the offence of making a child amenable to sexual activity.[1] The appellant appeals against his convictions on four grounds which make two essential complaints. First he complains that the learned trial Judge erred in failing to enter a judgment of acquittal at the end of the prosecution case when there was no evidence of the aggravating circumstance, and in allowing the trial to proceed for the purpose of determining the appellant’s guilt of the basic offence. Secondly, the appellant complains that the Judge erred in the construction, and application to the facts of this case, of the term ‘sexual activity’ in s 63B(3)(b) of the CLCA. The first complaint affects the conviction on both counts. The second complaint is made only with respect to the conviction on count 1.
[1] R v Richards (No 2) [2016] SADC 2.
I would dismiss the first complaint because it is a rule of common law trial procedure that a charge alleges not only the offence expressly pleaded but also any lesser offence, all of the elements of which are comprised in the charged offence. I would dismiss the second complaint because the Judge was correct to find that exposure of underwear worn by one person so that it can be viewed by another through electronic transmission of the image for the sole purpose of satisfying the sexual interest of that other person is a sexual activity.
My reasons follow.
The proceedings
The offending in this case occurred after the appellant entered into online communications with a police detective who was posing as a 13 year old girl from Western Australia. The appellant was charged on an Information dated 14 April 2014 with three counts of aggravated making a child amenable to sexual activity contrary to s 63B(3)(b) of the CLCA. The offences were said to be aggravated by the appellant’s knowledge that the victim was under the age of 14 at the time of the offence.[2] The Information did not charge any alternative offences.
[2] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(e)(i).
The trial commenced in the District Court on 27 January 2015. Before empanelling a jury, the Judge put the prosecution on notice that it may have some difficulty proving the aggravating factor when the child was, in fact, a police officer posing as a child under the age of 14. Surprisingly, the prosecution informed the Judge that it proposed to argue that the aggravating factor could be made out despite that difficulty. Defence counsel elected for a trial by judge alone, which was granted.
The prosecution opened its case and, with the consent of defence, proceeded by way of the tender of written statements and other exhibits. At the close of the prosecution case, the appellant made a no case to answer submission on the basis that there was no evidence capable of proving beyond reasonable doubt the aggravated element of the offence. His Honour reserved his decision.
On 23 March 2015, the Judge delivered a written ruling that there was no case to answer in respect of all three charged aggravated forms of the offences.[3] However, the Judge ruled that there was a case to answer on all three counts in relation to the basic forms of the offence. In reaching his decision, the Judge rejected the defence submission that a basic offence under s 63B(3)(b) of the CLCA is separate from its cognate aggravated offence but ruled that even on the premise that the basic and aggravated forms of the offence were discrete offences, it was open to proceed with the trial on the basic offences, as common law alternatives to the aggravated offences, even though they had not been expressly charged.
[3] R v Richards [2015] SADC 44.
On 10 April 2015, the Judge heard further argument in relation to this latter ruling. Defence counsel submitted that upon a finding that the appellant had no case to answer in relation to each of the aggravated offences, the Judge was bound to immediately acquit the accused of those charges. It was further argued the verdicts could only be given on common law alternatives if there was a case to answer on the charged offences. In response, the prosecution applied to amend the particulars of the Information dated 14 April 2014 to reflect the basic offence, pursuant to s 281 of the CLCA. On 24 April 2015, the Judge rejected the defence submissions, ruling:
In my view, the charge of the basic offence remains alive. In my view, I have the power to delay delivering a verdict of acquittal for the aggravated offence until after all the evidence has been presented and counsel have delivered their closing addresses preserving my ability to return a verdict, whatever it might be, on the basic offence...
Furthermore, in my opinion, even if I were to immediately enter a verdict of acquittal for the aggravated offence, such a verdict would operate only as a partial verdict and not as a general verdict...
The Judge therefore did not need to consider the prosecution’s application to amend the Information.
The trial continued, and the defence case opened, on 5 June 2015. The appellant gave evidence.
The evidence
It is now necessary to say something of the prosecution and defence case at trial. Between 5 May 2013 and 19 June 2013, a police officer of the Western Australian Online Child Exploitation Squad was accessing online chat sites in the course of his duties to discover persons using those sites to groom children for sexual purposes. The police officer assumed the identity of a 13 year old female named ‘Emma’. The relevant online chat sites enabled two users to communicate by exchanging instant messages seen only by the sender and the recipient. The case for the prosecution was that on six occasions between those dates the appellant communicated with Emma over the internet using these sites.
On 5 May 2013, the appellant initiated communication with Emma by instant messaging on an internet chat site called ‘ICQ Chat’. The appellant suggested that Emma add him to her list of contacts on the chat site ‘Skype’ and thereafter they communicated using that site. The appellant appeared on the chat site with the username ‘James P’ and the police officer with the username ‘emma sharpe’. Skype enables two users to speak to, and view each other on the computer screen (webcam), and also allows for the exchange of instant text messages. The appellant communicated with Emma on two further occasions: 8 May 2013 and 15 May 2015.
It was on 22 May 2013 that the conversation the subject of count 1 took place. About 50 minutes into the conversation the following exchange took place:
James P:Would you show me your undies on cam if I were to ever ask?
emma sharpe: u mean from my draw
James P:Yes... or you wearing them?
The appellant later asked ‘Game to show me something from your draw?’ and after a brief discussion about the whereabouts of Emma’s mother the appellant said ‘Show me your panties please Em?’ He invited her to start the ‘cam call’ and Emma agreed to. The police officer manipulated the camera on his computer so that the appellant was not able to see anything, but so the police officer could see the appellant. Prosecution alleged that this part of the conversation was a request by the appellant for Emma to reveal herself on camera in her underwear.
Counts 2 and 3 arose from communications between the appellant and Emma on 19 June 2013. As this appeal does not concern the facts of these counts, it is not necessary to outline them.
On 19 July 2013, South Australian police attended the appellant’s residence and questioned him. He admitted communicating with Emma but claimed that he did not believe that the person he was speaking to was aged 13 because of the way she spoke.
The appellant gave evidence that although Emma said she was born in 1999 he suspected that she was in fact an adult female posing as a 13 year old. In relation to each count, the appellant made admissions to the effect that the relevant discussions were conducted by him for a prurient purpose. In relation to count 1 he said:
Q. And, in saying that to her ‘Show me your panties please Em’, that’s what you wanted, you wanted to see [her] in a state of undress, didn’t you.
A. I wanted the woman who had assumed that identity to do that, yes.
Q. To stand visible to you naked.
A. Yes.
Q. And that was the ultimate goal really, wasn’t it.
A. Yes.
The appellant agreed that he wanted Emma to show him what she looked like in underwear and possibly naked, that the idea of her masturbating on camera had crossed his mind but that he didn’t expect it to happen, and that the possibility of having sex with Emma had not crossed his mind.
On 20 January 2016, the trial Judge delivered his verdicts. He found the appellant not guilty of each aggravated offence, guilty of the basic offence in relation to counts 1 and 2, and not guilty of the basic offence in relation to count 3. On 5 April 2016, the appellant was sentenced to imprisonment for 15 months, and a non-parole period of seven months was fixed.
Sexual activity
Section 63B(3) of the CLCA provides:
63B—Procuring child to commit indecent act etc
…
(3)A person who—
(a)     procures a child under the prescribed age in relation to that person or makes a communication with the intention of procuring a child under the prescribed age in relation to that person to engage in, or submit to, a sexual activity; or
(b)     makes a communication for a prurient purpose and with the intention of making a child under the prescribed age in relation to that person amenable to a sexual activity,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 12 years.
I make the following observations about the provision in s 63B(3)(b). First, the conduct it proscribes is the making of a communication for a prurient purpose and with an intention of making a child amenable to a sexual activity. To make a child amenable is to influence the child to yield, submit or cooperate. The conduct must be deliberate and must be accompanied by the additional prurient purpose. A prurient purpose is one which is lustful or lewd.
The respondent contends that the meaning of sexual activity in s 63B(3) of the CLCA extends to any activity in which the defendant has a prurient interest. The Director of Public Prosecutions (the Director) emphasises the mischief to which the provision is addressed and that the purpose of the offence is to protect children from sexual offending by prohibiting grooming by predators with that end in mind. That purpose can be accepted but the aim of the provision is probably even more far reaching than that. The provision addresses not only the risk that sexual activity will take place but also aims to protect children from lewd communications which may be harmful in themselves.
It can be accepted that these are reasons to give the term sexual activity a wide meaning. However, if the meaning of sexual activity is any activity perceived by the accused to be sexual the provision would suffer from radical uncertainty. On the respondent’s construction the words ‘sexual activity’ are left with no work to do. Furthermore if the prurient interest is in an activity which, objectively considered, is not at all sexual, then it is unlikely that the communication would cause any harm in itself and it would pose little risk of any actual harm being inflicted. A testing example might arise where an accused has a particular fetish such as, for example, a shoe fetish.
Whether or not an activity is a sexual one is a question of fact which will be informed by the life experience of the tribunal of fact. The context in which the activity occurs will be important. That context includes all of the manifestations of the conduct which are perceptible by the parties to the communication or any one of them. The context, importantly, includes the absence of circumstances which provide a valid reason for the communication, like a genuine medical or parenting reason. In that respect, the context will also include the prurient purpose of the accused. That purpose is likely to be a very important factor but it will not be determinative.
As is so often the case there are activities which are plainly sexual in whatever context they take place and other activities that are just not sexual irrespective of the surrounding circumstances. However there is much activity which may be characterised as sexual activity or not depending on the surrounding circumstances. For obvious reasons activities involving complete or partial exposure, or touching of, erogenous zones will often, but not necessarily, be sexual activity. In particular exposure or touching displayed to another for no apparent purpose other than his or her prurient interest in the display is likely to be sexual activity. On the one hand parenting or medical care conducted in private will generally not be a sexual activity.
In this case, the activity the appellant desired to bring about was, in context, sexual. The appellant sought to have a child display an erogenous zone (albeit covered by underwear) so that an electronic image of her doing so could satisfy his prurient interest in that display. It should be observed here that the argument before the Court proceeded on the basis that the appellant’s intention went only so far as to procure a display of a child wearing her underwear. However, on the appellant’s own admission, it was open to find that his intention extended to a naked display.
It is not necessary on this appeal to finally determine the metes and bounds of the concept of sexual activity. It is sufficient to say that the conduct to which the appellant sought to make the ‘child’ amenable fell within that concept.
A case to answer
The appellant accepts that the basic offence is a common law alternative to the charged offence against s 63B(3) of the CLCA.
The general principle with respect to common law alternatives was stated in R v McLaren[4] to be that an accused may be found guilty of an alternative, lesser, offence, if it is an offence of the same character as the offence charged and if the definition of the offence charged necessarily includes the definition of the postulated alternative offence. The proviso to the principle is calculated to ensure procedural fairness and is not a limitation on the power. The rule itself is a rule of trial procedure, the effect of which is that an accused is put on trial not only on the count expressly pleaded in the Information or Indictment but also for such alternative lesser offences comprised within it. It is in the nature of a pleading rule which has the effect that an Information charging a count of a greater offence is to be taken to plead in the alternative those lesser offences which fall within the major offence.
[4] R v McLaren (1996) 189 LSJS 466, 468 (Cox J).
It is in those terms that the rule as to common law alternatives is described in Kenny, CS, Outlines of Criminal Law (15^th ed, 1945):[5]
As a logical rule, the evidence should of course establish, and the conviction also be for, the actual offence stated in the count which it concerns. But ... even by common law, “averments are divisible”; so that if the words in which a count states an offence involve the statement of some minor offence, the petty jury can reject part of the averment and convict of the minor offence alone, though it was not stated separately. Thus a statement of murder will be a statement of manslaughter if the words “of malice aforethought” be omitted; whilst similarly every statement of aggravated larceny includes one of simple larceny. And the legislature has gone still further, in two ways. For … in some cases it has enabled juries to convict of the crime which has in fact been proved, although it is not the crime charged in the indictment.
[5] Kenny, CS, Outlines of Criminal Law (15^th ed, 1945) at 553.

The question on this appeal is whether a trial judge is required to direct a jury to acquit of the major offence, or enter the acquittal directly on a trial by judge alone, when the prosecution has failed to prove an element of the major offence charged but has led evidence on which a verdict of guilty of a lesser offence at common law, which has not been expressly charged, may be returned. Accepting that the rule as to common law alternatives is a pleading rule of the kind described by Kenny, the answer to that question must be: No, the trial may continue as to the lesser offence. A consideration of the nature of the no case to answer procedure confirms that answer.
The no case procedure is explained by Kenny in these terms: [6]
Then, the Crown evidence being thus completed, the prisoner’s counsel sometimes submits that it is not such as could reasonably satisfy any jury that the accusation is established; and he therefore asks the judge to withdraw the case from the jury. If the request be refused or not made, then comes the defence of the person accused. Where the judge refuses to withdraw a case from the jury, evidence for the defence may supplement the evidence of the prosecution.
[6] Kenny, CS, Outlines of Criminal Law (15^th ed, 1945) at 569-70.
Kenny’s Outlines of Criminal Law is based on lectures delivered in the University of Cambridge in 1902. The 15^th edition of the book was first published in 1936 but reprinted in 1942, 1944 and 1945. Whether the procedure was, in 1902, as it was explained in the 15^th edition is not clear. As we shall shortly see as late as 1965, it was regarded as a relatively modern procedure by Glanville Williams. For now it is sufficient to observe that Kenny described the procedure as one of ‘withdraw[ing] the case from the jury’. That is to say it was a departure from the ordinary course of leaving the matter to be determined by jury verdict as the last step in the completion of the trial, after the accused had led evidence, counsel had addressed and the judge had summed up.
Kenny also explains the alternative procedure for determining objections in law to the entry of a conviction, that of a motion in ‘arrest of judgment’, which was then falling into disuse, as follows:[7]
On being convicted of felony or treason, the prisoner is asked if he has anything to say why the court should not give judgment against him. The inquiry contemplates only objections of law; i.e. grounds for a motion in arrest of judgment (now practically unknown). The question might well be abandoned, as not only useless but also apt to elicit irrelevant and mendacious protestations of innocence.
[7] Kenny, CS, Outlines of Criminal Law (15^th ed, 1945) at 573.
Kenny’s advice has been acted on in South Australia where the allocutus now invites submissions as to sentence, rather than objections to the entry of the judgment of conviction.
In his article, ‘The Application for a Directed Verdict’,[8] Glanville Williams discussed the power of a judge to withdraw a case from the jury at different points in a criminal trial.
[8] 1965 Crim.L.R. 343.
He described as ‘well settled’ a procedure whereby, at the conclusion of a trial on indictment, a judge would withdraw the case from the jury unless the judge was of the opinion that there was evidence on which a reasonable jury could convict. At the time of that article, there was some doubt in England as to whether the test to be applied by the judge at that time was the more limited question as to whether there is no case in law or whether the test was the wider test applied by the Court of Criminal Appeal under the standard form provisions on a ground that the verdict is unreasonable. In South Australia that question was finally decided in favour of the no case as a matter of law test in R v Prasad.[9] Glanville Williams observed that a direction to acquit at the close of the prosecution case may obviate the cost, expense and burden of proceeding with a trial only to have the conviction set aside on appeal. However, as this Court observed in Prasad, that approach wrongly conflates the function of the trial judge and the Court of Appeal.
[9] (1979) 23 SASR 161: The question in Prasad concerned the power of the Judge to direct an acquittal at the close of the prosecution case when there was a case to answer in law. The English Court of Appeal decision in R v Mansfield (1977) 65 Cr App R 276 to the opposite effect was not followed. The approach sanctioned in Mansfield followed a change in England of the appeal ground from unreasonable and unsupported by the evidence to one of unsafe and unsatisfactory.
Glanville Williams expressed some doubt about the rule of procedure that was said to allow the judge to direct an acquittal earlier, at the close of the prosecution case. The practice was one known at that time in Canada as a motion for a directed verdict, or a motion to dismiss. In the United States, it was known as a motion for acquittal.
Glanville Williams described the advantages of this procedure in this way: [10]
The significant feature of the procedure is that it enables the defendant to defeat a prosecution where the Crown is relying in important measure on admissions that may be extracted from the defence. Not only does a successful application protect the defendant from going into the witness-box, where he might be compelled to make damaging admissions, but it also prevents the prosecution from making good deficiencies in its own evidence by cross-examining the other witnesses for the defence. As Abbot CJ put it, “no person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him in the absence of explanation or contradiction”.
[10] (1965) Crim L.R. 343, 345.
Glanville Williams observed that the procedure had little practical utility until late in the 19^th century because before then an accused was not competent to give evidence in his or her own defence. He also observed that some counsel feared making the application because, as a matter of previous practice, it was heard in front of the jury. They worried that the jury might understand the rejection of the submission to be an indication of the judge’s view that the accused was guilty. On the other hand, other defence counsel took the view that it gave them an opportunity to make two speeches before the jury. Glanville Williams identified the increasing legal representation of defendants as yet another reason for the greater frequency, post-war, of the no-case submissions at the end of the prosecution.
Glanville Williams also linked the increasing use of directed verdicts at the end of the prosecution case to an appreciation of the important procedural elements of the common law criminal trial of proof beyond reasonable doubt and the right to silence.
Be that as it may it is now settled that, leaving aside cases in which there is an alternative offence which is not expressly charged, a judge should direct a jury to return a verdict of not guilty at the conclusion of the prosecution case if there is no case in law.
However, there is every reason not to bring a trial to a premature end when there is a legal case to answer on a common law alternative because of the long standing rule of common law criminal procedure that the accused is taken to be charged with both the pleaded count and its alternatives. No good purpose would be served by requiring prosecutors to plead every statutory and common law alternative to meet the contingency that even though there may be no case in law on the charged count, there may be a case to answer on an alternative. That process would be unnecessarily cumbersome in the many cases in which pleas are entered to the major offence. In those cases in which there is a plea of not guilty to the major offence it may be that for one reason or another the common law alternatives never need to be considered. There are no good legal policy reasons to require Informations to be loaded up with alternatives.
The limited authority identified by the researches of counsel supports the conclusion reached from first principles. There is authority for the procedure when a statutory alternative is available albeit not charged on the Information. In R v Carson[11] the accused was charged with an affray for which there was a statutory alternative. The applicable statutory provision provided that a verdict of guilty could be returned on the alternative if the jury found the accused not guilty of the affray. The Court of Appeal in Carson said:[12]
Once a defendant is put in the charge of a jury upon an indictment in a trial, that person remains in the charge of that jury until the jury has wholly discharged its function. It does not do that until either there have been verdicts returned upon all the offences which the jury may properly consider or there has been good reason for the judge to direct that the jury be discharged because there has been during the course of the trial some supervening event which has caused him to abort the trial and possibly to direct that another trial take place. A trial can only end in the ordinary way by a verdict of the jury. From the moment when a defendant is put in charge of the jury and until it ends in one of the ways I have referred to that person remains in the charge of the jury. Whilst he so remains he is liable to be tried not only upon the count or counts in the indictment but also upon any true alternative. It may be that a judge in his discretion may not leave an available alternative to a jury but that is a matter for him. If he, in his discretion, decides that it is right for the jury to consider an alternative, he is clearly entitled, the relevant law permitting in any particular case, to leave that alternative for the jury's consideration.
[11] R v Carson (1991) 92 Cr App R 236.
[12] R v Carson (1991) 92 Cr App R 236, 238.
In R v Livesey[13] the trial Judge found that there was no case to answer on the charged count of putting a person in fear of violence but ruled that there was a case to answer on an alternative charge of harassment. He did not take the jury verdict at the end of the prosecution case but informed the jury of his decision before the defence opened its case. He left the alternative count to the jury. The trial proceeded on the pleaded count but only for the purpose of considering the alternative charge. Livesey appealed his conviction on the ground that the Judge should have directed the jury to acquit him on the charged count and, by so doing, should then have brought the trial to an end. The Court of Appeal in Livesey dismissed the appeal and upheld the conviction relying on the decision in Carson.
[13] R v Livesey [2007] 1 Cr App R 35.
I would hold that the common law procedure for a criminal trial does not require a judge to direct the jury to return a verdict of not guilty, or to enter directly a judgment of acquittal in a trial by judge alone, when the prosecution has failed to make out a case to answer on the major offence but has led evidence on which a verdict of guilty can properly be returned on its common law alternative.
It remains to consider the submission made by the appellant that that course is precluded by s 57(3) of the Juries Act 1927 (SA) (the Juries Act) which provides:
57—Majority and alternative verdicts
(1)Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least 4 hours and the jurors have not then reached a unanimous verdict—
(a)     if a sufficient number agrees to enable the jury to return a majority verdict—a majority verdict will be returned; but
(b)     otherwise—the jury may be discharged from giving a verdict.
…
(3)Where an accused person is charged with a particular offence (the major offence) and it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of some other offence for which the person has not been charged (the alternative offence)—
(a)     the jury must consider whether the accused is guilty of the major offence before considering whether he or she is guilty of the alternative offence; and
(b)     if the jury reaches a verdict (either unanimously or by majority) that the accused is not guilty of the major offence but then, having been in deliberation for at least 4 hours, is unable to reach a verdict on the question of whether the accused is guilty of the alternative offence—
(i)the accused must be acquitted of the major offence; and
(ii)the jury may be discharged from giving a verdict in respect of the alternative offence; and
(iii)fresh proceedings may be taken against the accused on a charge of the alternative offence.
The appellant contends that by s 57(3) of the Juries Act a jury is only empowered to return a verdict of guilty on a common law or statutory alternative if the charged count has not been withdrawn from them.
The appellant’s reliance on s 57(3) of the Juries Act is misplaced for several reasons. First, rather than limiting the power of the jury, s 57(3) of the Juries Act simply has no application when there is no major offence because there has been a judgment of acquittal consequential on a no case to answer submission. Section 57(3) is calculated to regulate the procedure where both the major offence and its common law alternatives have been left to the jury. Secondly, there is no indication at all that s 57(3) of the Juries Act was intended to abrogate the common law procedures as to common law and statutory alternatives. Thirdly, the manifest purpose of s 57(3) the Juries Act is much more limited. It facilitates the return of a verdict of not guilty of the major offence when the jury has unanimously, or by majority, reached that verdict, even though the jury is not able to agree on a verdict for the alternative offence. Section 57(3) of the Juries Act allows the subsequent trial to be limited to the alternative offence rather than requiring, as would have been the case if s 57(3) were not enacted, the retrial of an accused on the major offence on which the jury had, either unanimously or by majority, decided that it would return a verdict of not guilty.
Conclusion
I would dismiss the appeal.
NICHOLSON J: I agree that the appeal should be dismissed and with the reasons of Kourakis CJ.
LOVELL J: I agree that the appeal should be dismissed and with the reasons of Kourakis CJ.