R v Tilley - [2009] SASC 277

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TILLEY
[2009] SASC 277
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Layton)
4 September 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - DIRECTION TO JURY
Appeal against conviction and sentence – defendant convicted of aggravated threatening life – matter of aggravation was alleged use of offensive weapon – whether Information was defective for failure to properly separate the basic offence from the aggravated offence – whether trial Judge improperly combined elements of "use" and "threatened use" of an offensive weapon in directions to jury on aggravation – whether Judge erred in failing to direct jury on the alternative basic offence of threatening life – whether Judge erred in failing to properly direct the jury as to the relevance of the absence of the alleged offensive weapon.
Held: appeal allowed – Judge erred in failing to direct jury on the alternative offence of threatening life – the question of an alternative verdict was directly raised by the evidence in the trial and by the Judge during summing up – alternative offence was reasonably open, viable and a rational result on the evidence – trial judge should have left the alternative offence for the jury’s consideration even if counsel objected – Information not defective – Information provided necessary particulars of charge – no error in directions to jury regarding aggravation.
Criminal Law Consolidation Act 1935 (SA) s 5, s 5AA, s 19, s 19B, s 20, s 32B, s 75, s 277, Sch 3; Juries Act 1927 (SA) s 57, referred to.
R v Coutts [2006] 4 All ER 353; R v King (2004) 59 NSWLR 515; Benbolt v The Queen (1993) 60 SASR 7; R v Trewartha (2001) 123 A Crim R 259, applied.
Gilbert v The Queen (2000) 201 CLR 414; Pemble v The Queen (1971) 124 CLR 107, discussed.
R v Perdikoyiannis (2003) 86 SASR 262; Gillard v The Queen (2003) 219 CLR 1, considered.

R v TILLEY
[2009] SASC 277
Court of Criminal Appeal: Bleby, Gray, and Layton JJ
THE COURT:
The Issues

This is an appeal by the defendant, Daniel Bernard Tilley, against both conviction and sentence.
Following permission to appeal being granted amended grounds of appeal against conviction were filed in the following terms:
-The Judge erred in failing to give further directions to the jury as requested by the defendant’s counsel concerning the missing Stanley knife.
-The Judge should have directed the jury about returning a verdict in respect of the alternative offence of threaten life in accordance with section 57(3) of the Juries Act 1927 (SA).
The defendant’s written outline of appeal as filed before this Court, implied arguments additional to those set out in support of the above grounds of the appeal against conviction. The Director of Public Prosecutions did not oppose the amendments of the grounds of appeal to include:
The information was defective in that it did not comply with s 5AA(3) of the Criminal Law Consolidation Act 1935 (SA) such as to lead to a miscarriage of justice.
The Judge erred in that he did not properly direct the jury about the elements of the offence that required proof that the appellant threatened to use an offensive weapon while threatening life.
The major issues raised by this appeal are as follows: whether the Information was defective thereby giving rise to a miscarriage of justice; whether the Judge failed to direct the jury on elements of the alleged aggravation; a matter which is linked to the above two issues, namely whether the Judge was required to leave to the jury by way of alternative verdict the lesser basic offence of threatening life either because it was required by section 5AA of the Criminal Law Consolidation Act 1935 (SA) in any event or because it arose on the evidence; and finally, whether the Judge gave a deficient direction to the jury about the possibility that the reason the Stanley knife was not found was because it did not exist and that this was relevant to the reliability of the alleged victim’s evidence and could be used to support the defendant’s denial that he had a Stanley knife at the scene.
Background
The defendant was charged on Information with the offence of “Aggravated Threatening Life”.
The charge on the Information was set out as follows:
Statement of Offence
Aggravated Threatening Life. (Section 19(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Daniel Bernard Tilley on the 15^th day of June 2007 at Cavan, while threatening to use an offensive weapon namely a Stanley knife and without lawful excuse, threatened to kill [LD] intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
The defendant was convicted by majority verdict of this offence.
The circumstances of offending were that at about 7.30am on 15 June 2007, LD and the defendant were each driving their vehicles along Salisbury Highway and then Port Wakefield Road. They were involved in a minor collision on Port Wakefield Road. Shortly after that, both the defendant and LD stopped their vehicles on the side of a slip road, adjacent to Montague Road. LD parked his vehicle immediately behind the vehicle driven by the defendant. The defendant exited his vehicle and approached LD who was still seated in his own car.
LD’s evidence was that the defendant pushed the door of LD’s car shut and was screaming at him saying, “It’s fucking your fault”. The defendant produced a Stanley knife in his left hand and kept on repeating, “It’s fucking all your fault”. He slid the blade of the knife out of its casing using one hand and put the knife up to his throat. LD then locked his car with central locking. The defendant then made swiping motions at his own throat with the knife while shouting, “If you call the cops or go to the police I’ll fucking kill you”. The defendant then returned to his vehicle and drove away.
LD went straight to a petrol station in order to record the details of what had happened. He wrote out the registration number of the defendant’s vehicle . He went directly to the Holden Hill Police Station where he reported the incident and gave a detailed description of the defendant. This included that the defendant had dark overalls, a black jumper and a black beanie partly covering long orangey/ginger sideburns and a full beard.
At about 8.40am, a little over an hour after the incident, the police attended the home of the defendant. The defendant had a bath towel around him and his face was clean shaven. The nephew of the defendant who was in the defendant’s car at the time agreed that the defendant had a beard at the time the incident occurred. There was therefore evidence from which the jury could conclude that the defendant had changed his appearance since the incident by shaving his beard.
When the police attended the defendant’s home, they did not conduct a search. The reason they gave for not conducting a search was that the defendant’s partner was arrested for hindering police and that they had to take her into custody at the same time as they took the defendant in for questioning. There were only two police vehicles in the patrol area and both the defendant and his partner had to be taken into custody at the same time and this prevented the search.
The police subsequently interviewed the defendant. He stated that he had not left the house and he denied every aspect of the offending.
Subsequently at trial, the defendant admitted that he was the driver of the vehicle, that there had been a collision and that he had approached LD and sworn at him. He denied making the threat. He denied that he had been holding a knife. He also denied making any gestures across his throat. Instead, he claimed that he had been holding a mobile phone and keys. His evidence was that, as is his usual practice, he pulled the car keys out but that as he emerged, his mobile phone dropped out of his right pocket. He said he bent down and picked it up. He admitted in evidence that he owned a Stanley knife, which he used in the course of his work. However, he said on the day of the offence he was not driving his usual work vehicle in which he kept his tools, he was using his partner’s car to drive his nephew who was going to do some work on his behalf.
In relation to his appearance, the defendant also admitted in evidence that he anticipated that the police might attend at his house at some time.
The defendant called his nephew, Benjamin Tilley. His evidence was that he did not see anything in the defendant’s hands while he was in the vehicle. He did not see the defendant drop anything. He did not see the defendant carrying anything in his hand when he came back to the vehicle and he did not see a Stanley knife in the car that day. Whilst he said he had used a Stanley knife owned by the defendant when he was doing some work for him, he added that the tools were usually kept in the defendant’s work vehicle. He also verified that the defendant was driving him to work in a different vehicle.
The Judge in his summing up did not give any direction to the jury on an alternative verdict of threatening life, being the “basic offence” under section 19(1) of the Criminal Law Consolidation Act. There was no suggestion by either counsel for the prosecution or counsel for the defence during the trial that an alternative verdict should be put. The topic was not raised at any time by the Judge.
The first two arguments of the defendant involve a consideration of whether the Information is deficient and whether or not the Judge adequately articulated the circumstances of the aggravated offence as distinct from the basic offence.
The Validity of the Information
The overarching submission on the first issue was that the Information was deficient in not specifying the circumstances of the aggravation in the instrument of charge contrary to section 5AA(3) of the Criminal Law Consolidation Act. For the purposes of considering this argument it is necessary to consider also section 19 of the Criminal Law Consolidation Act and relevant definitions.
Section 19 of the Criminal Law Consolidation Act provides:
Unlawful threats
(1)     A person who—
(a)     threatens, without lawful excuse, to kill or endanger the life of another; and
(b)     intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
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.
(2)     A person who—
(a)     threatens, without lawful excuse, to cause harm to the person or property of another; and
(b)    intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 5 years;
(b)    for an aggravated offence—imprisonment for 7 years.
(3)    This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct.
(4)     In this section—
"harm", in relation to a person, has the same meaning as in section 21.
Section 5 of the Criminal Law Consolidation Act, being the definition section of the Act, defines offensive weapon as follows:
offensive weapon means—
(a)an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including—
(i)     a firearm or imitation firearm (ie an article intended to be taken for a firearm); or
(ii)    an explosive or an imitation explosive (ie an article or substance intended to be taken for an explosive); or
(b)     an article or substance that a person has—
(i)    for the purpose of causing personal injury or incapacity; or
(ii)     in circumstances in which another is likely to feel reasonable apprehension that the person has it for the purpose of causing personal injury or incapacity;
That section also provides the following interpretation for “aggravated offence” and “basic offence”:
aggravated offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);
basic offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA);
Section 5AA of the Criminal Law Consolidation Act provides as follows:
(1)Subject to this section, an aggravated offence is an offence committed in the following circumstances:
…
(b) the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;
…
(3)If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
(4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established.
Counsel for the defendant submitted that there was a failure specifically to identify and particularise the aggravated offence as distinct from the basic offence and that there was a failure to make clear what the circumstance of aggravation was asserted to be. Attention was drawn to section 5AA(1)(b) of the Criminal Law Consolidation Act and that it contained a number of variables as to what could comprise the aggravated offence:
·the offender used an offensive weapon;
·the offender threatened to use an offensive weapon;
·the use or threatened use of an offensive weapon was to commit the offence; or
·the use or threatened use of an offensive weapon occurred “when committing” the offence.
Section 5AA of the Criminal Law Consolidation Act requires that the Information should state the circumstances alleged to aggravate the offence.
In this case the Information referred specifically to the offence as being “while threatening to use an offensive weapon… [the defendant] threatened to kill [LD] intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.”
[emphasis added]
In short it was submitted that the particulars of the offence set out in the Information rolled up the basic offence and the aggravated offence together. There was no separation of the “aggravated offence” and no particulars were given of the aggravated offence. It was therefore submitted that this was an invalid Information as it did not fulfil the requirements of section 277 of the Criminal Law Consolidation Act, Rule 4(3) and (4) of Schedule 3 of the Criminal Law Consolidation Act or section 5AA of the Criminal Law Consolidation Act.
While it may have been preferable for the Information to articulate specific circumstances of aggravation in a discrete sentence, there was no deficiency in the description of the aggravated offence or the particulars. The Information did contain a statement of the specific offence with which the defendant was charged which was “Aggravated Threatening Life”. It also provided particulars necessary to give reasonable information as to the nature of the charge. The section of the relevant statute was referred to in the Information. It was also stated in ordinary language. There was no failure to comply with section 277 of the Criminal Law Consolidation Act or Rule 4(3) and (4) of Schedule 3. It was clear from the Information that the circumstance of the aggravation stated that the defendant was “threatening to use an offensive weapon” when he “threatened to kill” LD.
This particular of the aggravated offence was set out in the Information. We therefore reject the defendant’s argument as to the alleged invalidity of the Information by reason of section 5AA of the Criminal Law Consolidation Act.
The Summing up as to Aggravation
In relation to the summing up by the Judge on the elements of aggravation, the prosecution presented its case on the basis that the threat to kill comprised the words of the defendant and that the aggravation was the production of the Stanley knife and gesturing with it against his throat on more than one occasion. The Judge indicated that the prosecution case was that a threat had been made directly by the defendant to LD, partially by words and partially by conduct.
In our view nothing turns on the different characterisation by the Judge of the threat to kill. In the circumstances of this case, the threat to kill was inextricably linked with the circumstance of aggravation. That is, when verbally threatening to kill LD, the defendant at the same time was “threatening to use an offensive weapon”. Thus this was a case in which the conduct relied upon for the purposes of the “threat to kill” was intimately connected with the circumstance of aggravation.
The Judge in the course of his summing up separately identified the elements necessary to prove the aggravated offence. He referred to four elements being required to be proved. The Judge read out the charge and the Information with all its detail.
The Judge then identified the first element as being that “the prosecution must prove beyond reasonable doubt that the [defendant] threatened to kill [LD]”. Second, the Judge directed that:
the prosecution must prove beyond reasonable doubt that, when the accused made that threat, he intended to arouse a fear in somebody… that the threat was likely to be carried out or [that the accused] was recklessly indifferent as to whether such a fear was aroused.
The third element upon which the Judge directed, was that the “prosecution must prove beyond reasonable doubt that when the defendant made that threat he used or threatened to use an offensive weapon to commit, or when committing, the offence”. The fourth element was that “the threat was made without lawful excuse”.
Following a jury question, the Judge repeated these elements. The foreperson then asked the Judge for further clarification:
FOREPERSON: Yes. On the third point, is there anything further you can add to that?
HIS HONOUR: Nothing really, apart from me saying that the third element is that the prosecution must prove beyond reasonable doubt that, when the accused made that threat, he used or threatened to use an offensive weapon. I told you that a Stanley knife would constitute an offensive weapon and, if necessary, I can refer you specifically to the section of the law, the law of the Criminal Law Consolidation Act which defines what an offensive weapon is.
Section 5 states: ‘Offensive weapon means an article or substance made or adapted for use for causing or threatening to cause personal injury or incapacity, including a firearm -’, a further explanation is given: ‘- an explosive or an article or substance that a person has for the purpose of causing personal injury or incapacity, or in circumstances in which another is likely to feel a reasonable apprehension, that the person has it for the purpose of causing personal injury or incapacity’.
They are a lot of legal words, ladies and gentlemen, and, out of a desire to help and without in any way intending to hold anything back from you, I summarised it as far as I could, and I said to you that a Stanley knife would constitute an offensive weapon in the circumstances of this case, in the circumstances of the allegation here.
There were further matters raised by the foreperson which are not relevant at this point, and we deal with them later in these reasons.

It is apparent that the Judge specifically directed the jury on the circumstance of aggravation in his third element. While the prosecution case in the Information had referred only to “threatening to use an offensive weapon” the fact that the Judge used both descriptors of an aggravation namely “he used or threatened to use” does not in the circumstances of this case lead to any lack of clarity or miscarriage of justice. It was a moot point, in the overall factual circumstances as described by LD, as to whether the action of producing and gesturing with the Stanley knife could be characterised as “threatening to use” or whether it indicated that the defendant had “used” the Stanley knife while committing the offence. The defendant did not physically direct the knife at or towards LD but instead, on LD’s evidence, drew the knife figuratively across his throat at the time when making the verbal threat.
In our view there was no real lack of clarity for the jury about the elements that they were required to be satisfied about before they could convict the defendant of the aggravated offence. The alternative differing words used by the Judge may in another factual circumstance have caused some problem, but not in this case.
The Direction as to the Existence of the Stanley Knife
The final argument addressed by the defendant in relation to the conviction was an alleged failure by the Judge to direct the jury that the possibility that the reason the Stanley knife was not found was because it did not exist; that this was relevant to the reliability of LD; and that this could be used to support the defendant’s denial that he had a Stanley knife at the scene.
Reliance for this submission was made on the approach which the Judge took to the questions asked by a jury foreperson.
After the foreperson had asked for clarification on the third element set out earlier in these reasons, the foreperson in response as to whether there were any other queries then said the following:
FOREPERSON: I do not know whether I am out of order in asking this question, but as to what importance we place on the weapon not being available as an exhibit.
HIS HONOUR: Certainly not out of order, you are in order. And I attempted, in my summing up, to explain that there is an absence of actual evidence, direct evidence, of that weapon. There was no evidence that it was located, it was not tendered, so you do not have the benefit of looking at that thing and using that in assessing all the evidence that is before you. It is for you to judge as to whether the absence of that Stanley knife has importance and has any impact on your decision.
Let me try to help you in this case. You have no doubt heard of cases, cases of a different kind, murder cases, for instance, where the body of the deceased is not located. In fact, there can be (and there sometimes is) a criminal trial charging somebody with murder when there is no evidence of the body of the deceased person being before the court and being available for inspection or consideration. One dramatic recent case of that that comes to mind is the Falconio case in the Northern Territory where a man was tried, ultimately convicted and ultimately his conviction, though appealed against, was upheld in circumstances where the body of Mr Falconio was never found.
Now, no doubt in that case the fact that there was no evidence of the body, or any indirect evidence of the body like DNA, or pieces of a skeleton, or bones, or something, no doubt that was considered and before the jury in that case. There is no direct parallel between that situation and the present, but sometimes a jury may conclude that they do not feel satisfied beyond reasonable doubt, they do not feel satisfied to the necessary extent, to reach a conclusion of guilt, reach a conclusion that each of the elements has been established, without such evidence. I say to you that there are many cases in which, in the absence of direct or even indirect evidence of a thing such as a weapon alleged to have been used, juries reach a verdict of ‘Guilty’ appropriately.
Now I am not telling you what I think; my views on the matter are immaterial, and they are not appropriate for me to share with you. All my duty requires me to do is to direct your attention to that topic, to give it some consideration, but, at the end of the day, it is for you to assess whether you see any importance in the fact that you did not have placed before you, for instance, the so-called Stanley knife, or a photograph of it, or some other indirect evidence of its existence.
I am sorry to say that, if you are seeking some more blunt explanation from me, then you will not be getting it; all I can say is that just as you are required to do your duty to the best of your ability, I must do mine: and so I refrain from seeking to persuade you to any particular view on that topic.
I invite you, ladies and gentlemen, to go on deliberating.
This was then followed by a submission made by counsel for the defendant in relation to that question and answer:
[Counsel]: As I understand his question, perhaps paraphrasing, he has asked you what importance is to be placed with the weapon not being an exhibit. Now my point is, obviously, that that is a sticking point, or a possible sticking point, with one or more members of the jury. It is of importance, otherwise they would not have raised it. What I would ask you to consider is raising with them the fact that it is important in light of the attack by defence on police that they not only had an early opportunity, but the power to strike a search of the vehicle and/or the house. That was not done and that could well have assisted the jury on the question of whether there was even a knife or a Stanley knife found or not, and the accused was not given that opportunity in the absence of police not going to that search program pursuant to their powers.
Just rounding off, it is perhaps somewhat trite, if I have got it right, it was not tendered, obviously it was not tendered because there was never a search for it and that is no fault of the accused; if anything, it could be the subject of a fault, and I do say it is the subject of a fault of lack of police investigation.
…
[Counsel]: Could I just ask you to consider one final point? You gave the example of the Falconio, Northern Territory, murder case, and I accept it is just an example. You made certain points about it, for the juror, not to take it as a spot-on guiding point, so to speak, but I am wondering if you would clarify or consider clarifying, in that example, of course, the body was not found, but to my understanding, say I mean in a murder trial, it can often be questionable that if a body has not been found, of course that, in itself, is a point that has to be looked at because there could be a reasonable explanation that body has been (sic) found. For example, the accused could argue that the accused believed that the person deliberately disappeared and was avoiding jurisdiction and things of that nature, but still be accused of murder.
Having heard those submissions the Judge declined to give any supplementary directions.
Counsel for the Director submitted that this was not a case of an inadequate search being undertaken by police for the knife and the knife not having been found. This was a case of no search by police for the knife because their attention was drawn to more demanding issues. Also, even if a search had been conducted, the absence of a knife would not in itself have demonstrated in a positive way that the defendant did not have a knife at the time of the alleged offending. The defendant had admitted that he was anticipating the police to come to his house. The evidence indicated that he had shaved off his beard and moustache. This would suggest an attempt by the defendant to disguise himself. It would therefore be unsurprising for the defendant also to have hidden the knife in order to avoid being linked in any way to the circumstances of the alleged offending. Finally, as counsel pointed out, the fact that LD described the knife as being a Stanley knife, which just happened to coincide with the admission by the defendant that he used a Stanley knife in the course of his work, was a great coincidence indeed.
In our view, the response by the Judge to the issues raised by the jury foreperson was appropriate in the circumstances. By reason of the way in which counsel for the defendant had couched his client’s defence, there was a significant issue about the delay of the police to conduct any search and that, on the defence case, the lack of production of a knife meant that they could not be satisfied that the defendant had a knife. The particular aspects now sought to be addressed on this appeal, which were a refinement of that argument, were not raised so explicitly before the Judge.
However, it was clear from the way in which the trial was run and the summing up by the Judge that the jury was faced with a contradictory scenario. As the Judge said in summing up:
What [LD] described as having occurred is, you might well conclude, clearly an incident of violent road rage, one incident of the accused making a threat to kill whilst holding and gesturing with a Stanley knife, one offence of aggravated threatening to kill.
…
So, in the end, there was a complete conflict. Either what [LD] told you was true or what he said happened in the slip lane on Montague Road is a fabrication or made-up story or a false reconstruction or exaggeration or misinterpretation of what the accused said at the door of the Colt sedan whilst carrying keys and a mobile phone.
…
On the defence case, this was a false story (as opposed to a true account) that [LD] told. The defence has emphasised that, even if you cannot go that far, that is to say to conclude that it was false, you should find that there is a reasonable possibility that [LD] made up his story or, by way of reconstruction, misunderstood what the accused said at the door and misunderstood an act of merely holding keys and a mobile phone, misunderstood that to be the holding of a Stanley knife.
You should take into account all the evidence that has been placed before you. You should remember that the accused denied the allegations when giving evidence from the witness box.
The clarification given by the Judge in response to the jury question having regard to these matters, was entirely appropriate. The issue raised squarely for the jury was whether they were satisfied that there was a knife as LD deposed, notwithstanding that there had been no police search for that knife and no knife was produced at trial. The Judge quite rightly left that to the jury.
In short we consider that the Judge did respond appropriately to the question being asked. It was not necessary for the Judge to have provided a more fulsome description of the manner in which the jury could use the absence of the knife in their deliberations. We would therefore dismiss this ground of appeal.
Alternative Verdict
Section 19 of the Criminal Law Consolidation Act creates two offences. Threatening life is an alternative to the offence of aggravated threatening life. Further, as the Director conceded, the offence of threatening life is necessarily included in the aggravated offence.
The defendant submitted that the Judge, regardless of the evidence, was obliged to direct the jury about the alternative offence of threatening life by virtue of section 57(3) of the Juries Act in combination with the provisions in section 5AA of the Criminal Law Consolidation Act. Section 5AA of the Criminal Law Consolidation Act is set out above. Section 57(3) of the Juries Act provides:
(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.
There is nothing in section 5AA which would support the defendant’s submission. There are explicit statutory provisions contained in the Criminal Law Consolidation Act which require that certain alternative offences be put before a jury.[1] There is nothing contained in section 5AA of the Criminal Law Consolidation Act which explicitly or impliedly indicates that there is a mandatory requirement for a basic offence to be put before the jury as an alternative offence when an aggravated offence is charged.
[1] For example, s 19B in relation to dangerous use of a vehicle or vessel; s 32B in relation to throwing objects at vehicles, s 75 in relation to charges of rape.
As a result of section 57 of the Juries Act, in respect of an offence against section 19(1) of the Criminal Law Consolidation Act, the common law still remains a relevant consideration as to whether an alternative verdict should have been put in this case.
In Coutts[2] Lord Bingham reviewed the fundamental principles against which considerations of alternative verdicts arise: [3]
In any criminal prosecution for a serious offence there is an important public interest in the outcome (R v Fairbanks [1986] 1 WLR 1202, 1206). The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge (Von Starck v The Queen [2000] 1 WLR 1270, 1275; Hunter and Moodie v The Queen [2003] UKPC 69, [27]).
[2] R v Coutts [2006] UKHL 39, [2006] 4 All ER 353.
[3] R v Coutts [2006] UKHL 39, [2006] 4 All ER 353 at 359-360.
It has been accepted that manslaughter should be left to the jury as an alternative verdict with respect to a charge of murder. This much has been expressly approved by the High Court in Gillard[4] and Gilbert.[5] In the latter decision, Gleeson CJ and Gummow J recognised the difficulty of knowing whether a misdirection is advantageous to one party or the other, and held:[6]
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
Gleeson CJ and Gummow J noted that an appellate court should not assume that juries adopted a mechanistic approach to the task of fact-finding, oblivious of the consequences of their conclusion. Callinan J, who formed the majority with Gleeson CJ and Gummow J concluded:[7]
The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.
[4]    Gillard v The Queen, [2003] HCA 64, (2003) 219 CLR 1.
[5]    Gilbert v The Queen [2000] HCA 15, [101], (2000) 201 CLR 414, 441.
[6]    Gilbert v The Queen [2000] HCA 15, [101], (2000) 201 CLR 414, 441 at [13], 420.
[7]    Gilbert v The Queen [2000] HCA 15, [101], (2000) 201 CLR 414, 441 at [101], 441.
It has also been recognised in Australia that a trial Judge has a duty to direct the jury on alternative verdicts, where there is evidence to support such a verdict. That obligation is not dependant upon or removed by decisions of trial counsel. As Barwick CJ observed in Pemble:[8]
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part …
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.
[8] Pemble v The Queen (1971) 124 CLR 107, 117-118.
In Coutts, Lord Bingham noted that the above principles are reflected in decisions in the United Kingdom, United States and Canada, and summarised his view in the following terms:[9]
The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.
It is of course fundamental that the duty to leave lesser verdicts to the jury should not be exercised so as to infringe a defendant's right to a fair trial. This might be so if it were shown that decisions were made at trial which would not have been made had the possibility of such a verdict been envisaged. But no such infringement has ordinarily been found where there is evidence of provocation not relied on by the defence, nor will it ordinarily be unfair to leave an alternative where a defendant who, resisting conviction of a more serious offence, succeeds in throwing doubt on an ingredient of that offence and is as a result convicted of a lesser offence lacking that ingredient. There may be unfairness if the jury first learn of the alternative from the judge's summing-up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct. Had this course been followed in the present case there would have been no unfairness to the appellant, and while taking a contrary view the Court of Appeal did not identify the unfairness which it held would arise. It is not unfair to deprive a defendant, timeously alerted to the possibility, of what may be an adventitious acquittal.
[Emphasis added].
[9] R v Coutts [2006] UKHL 39, [23]-[24], [2006] 4 All ER 353, 367-368.

Lord Hutton, with whom Lord Mance and Lord Nicholls agreed, considered whether a conviction should be quashed on appeal when the Judge has erred in failing to leave an alternative verdict to the jury:[10]
…save in exceptional circumstances, an appellate court should quash a conviction, whether for murder or for a lesser offence, as constituting a serious miscarriage of justice where the judge has erred in failing to leave a lesser alternative verdict obviously raised by the evidence.
[10] R v Coutts [2006] UKHL 39, [23]-[24], [2006] 4 All ER 353 at [61], 382.
Lord Rodger drew attention to the potential consequence of failing to leave an alternative verdict to the jury:[11]
…by omitting to mention manslaughter in a case where it could apply on a reasonable view of the facts, the judge will misrepresent the position by making the law seem more rigid and less nuanced than it actually is.
…
…in the present case the jury might have regarded the defendant's version of events from quite a different angle if they had been aware that accepting it did not involve his complete acquittal.
[11] R v Coutts [2006] UKHL 39, [23]-[24], [2006] 4 All ER 353 at [82], [90], 388-389, 391.
The circumstances in which an alternative verdict should be left to the jury has been the subject of further extensive judicial consideration.
In Benbolt,[12] King CJ clarified the interpretation of section 57(3) of the Juries Act having regard to the common law position. As he indicated:[13]
[Section 57(3)] applies where "it is possible" for a jury to return an alternative verdict. That must mean possible in the sense that the alternative verdict is open as a matter of law on the charge as laid. In such case the subsection governs the procedure to be followed. I do not think that it requires a judge to leave for the consideration of the jury alternatives for which there is no reasonable basis in the evidence…
[12] Benbolt v The Queen (1993) 60 SASR 7.
[13] Benbolt v The Queen (1993) 60 SASR 7 at 18.
A similar approach was articulated by Duggan J who said:[14]
I agree with the Chief Justice that, as a general rule, the trial judge is required to direct the jury on any alternative verdict reasonably open on the evidence. This requirement will arise where such a verdict is more than a theoretical issue in the case and whether or not the Crown has opened on the issue.
[14] Benbolt v The Queen (1993) 60 SASR 7 at 26.
Although other aspects of the decision were subsequently overruled,[15] these propositions remain sound and similar expressions have later been reflected by this Court in Trewartha[16] and Perdikoyiannis.[17] In particular, Doyle CJ said in Trewartha, of the requirement to give directions on alternative verdicts:[18]
In directing the jury a judge is entitled to and must have regard to the manner in which the case has been conducted, although the approach taken by counsel cannot bind the judge nor excuse the judge from directing the jury on a possible finding if it fairly arises on the evidence … A practical judgment has to be made by the judge, having regard to the issues actually raised, and to the findings or verdicts open as a matter of law and fairly or practically open on the facts.
[Emphasis added].
[15] Gilbert v The Queen [2000] HCA 15, (2000) 201 CLR 414.
[16] R vTrewartha [2001] SASC 264, (2001) 123 A Crim R 259.
[17] R v Perdikoyiannis [2003] SASC 10, [36]-[40], [50], (2003) 86 SASR 262, 268.
[18] R vTrewartha [2001] SASC 264, (2001) 123 A Crim R 259 at 265.
In the New South Wales decision of King[19] the indictment included no alternative counts, only armed robbery. Counsel for the defendant submitted that two alternative verdicts should be left; common law robbery and larceny. The prosecution supported this submission, but the trial judge refused to leave robbery without a weapon to the jury. The defendant was subsequently convicted of armed robbery, and appealed on the ground that it was erroneous for the judge to not leave robbery as an alternative verdict available to the jury. The appeal was successful. Of particular relevance for present purposes, was the issue of fact as to whether or not the defendant actually had a screwdriver in his hand at the time of the incident. Grove J concluded:[20]
[19] R v King [2004] NSWCCA 20, (2004) 59 NSWLR 515.
[20] R v King [2004] NSWCCA 20, (2004) 59 NSWLR 515 at [6]-[13], 517-518.
The issue is whether there was such a viable case, and therefore a requirement for direction in the present circumstances. It is plain that at trial counsel was seeking a verdict of guilty of stealing, that simple larceny claimed to be evidenced in a spontaneous "snatch and grab". Counsel, in address, however did not ignore the more serious alternative. He is recorded as saying: "In my submission to you, you will not be satisfied beyond reasonable doubt, which is the requirement and the standard of proof which the Crown must satisfy, that on the evidence the accused is guilty of either armed robbery or unarmed robbery".
...
I consider that the alternative verdict should, in those circumstances, have been the subject of jury direction. I do not say that a judge is obliged to direct on every alternative lesser offence available at law in every case. Sperling J's caution against a "veritable cascade of lesser offences", is an instructive metaphor. Whether, in any case an alternative or lesser offence should be the subject of direction involves assessment of the way in which the case has been presented in court as well as the evidence. The juxtaposition between a grave offence charged and a technically available alternative which may be so trifling as have potential to distract a jury or, in short, prejudice the interests of justice from the point of view of both prosecution and accused: cf R v Fairbanks [1986] 2 WLR 1202 should also be assessed.
In the present case there was an available basis in the evidence upon which the jury might have convicted of robbery simpliciter rather than armed robbery. The conduct of the case involved a specific challenge to the assertion that the appellant was armed, the need for direction was expressly raised and the decision to refuse to give the direction was founded upon an erroneous view that an additional count in the indictment was essential. That combination of circumstances places the case into the category of those where the absence of direction deprived the appellant of a fair chance of being convicted of the lesser offence.
Smart AJ reasoned as follows:[21]
[21] R v King [2004] NSWCCA 20, (2004) 59 NSWLR 515 at [110]-[116], 534-535.
Having regard to the principles discussed by the majority justices in Gilbert and those same justices in Gillard (with whom Kirby J in substance agreed in Gillard on the points now under discussion) these principles emerge on the authorities:
(a)Where on a trial for murder, there is a viable case of manslaughter to be left to the jury, the refusal to do so constitutes a wrong decision on a question of law: Gillard v The Queen (at 70 [26]; 209 [26]); (at 71 [32]; 210 [32]); (at 79 [85]; 222 [85]); (at 82 [106]; 225 [106]).
(b)This raises the question of the proviso. It is not an answer to such refusal or failure that the jury were correctly instructed on the elements of murder and that since they convicted the accused (appellant) of murder there is on that account alone, no miscarriage of justice. The jury were deprived of the opportunity to consider an intermediate position.
(c)The principle stated in Gillard is not limited to instances of murder and manslaughter, but applies where a serious offence is charged and there is a lesser alternative offence, the conviction for which would be a viable outcome on the evidence, that is, the evidence is such that a conviction for the lesser alternative offence would represent a rational result. See R v Fairbanks, R v Maxwell, Gillard and R v Elfar (see at 516 [5] supra). Where this is the position it is in the interests of justice for the alternative count to be left. However, there are limits to the principle earlier stated in this sub-paragraph, including:
(i) where there is no dispute that the full offence charged was committed and the issue is whether the Crown has proved that the defendant committed it (R v Fairbanks (at 1206); R v Maxwell (at 1269)),
(ii) where the principal offence is grave and the alternative alleged is comparatively trifling and remote from the real point of the case (R v Fairbanks (at 1206); R v Maxwell (at 1269)).
(d)If the Crown wishes the jury to consider the alternative offence in the event of them finding the accused not guilty of the principal offence the Crown must open the alternative offence to the jury.
(e)The judge should leave the lesser offence where conviction on that is a viable outcome even if the accused does not seek that where it is in the interests of justice and in the interests of the accused to do so. This transcends adversarial and tactical considerations.
In deciding whether to leave the lesser offence the state of the evidence is critical as Gillard emphasises. The lesser offence is not left to the jury if the evidence in support of it is flimsy or the prospect of a conviction on the lesser offence rather than the major offence is fanciful.
…
In the present case, on any sensible view of the evidence as to what took place, a conviction for stealing did not adequately represent the appellant's criminal conduct. There was a strong case that the victim had been put in fear, whether or not a screwdriver was produced by the appellant. Robbery is a serious criminal offence and carries a maximum penalty of 14 years imprisonment. As an alternative verdict to robbery while armed with an offensive weapon, robbery also represented a major serious criminal offence with a suitably severe maximum penalty.
An examination of the evidence leads to the conclusion that on the cross-examination of the victim and the evidence of the appellant, it was a viable outcome that the jury, if it had been given a choice of convicting of robbery, might have done so rather than of robbery while armed with an offensive weapon. It is not without significance that one of the early police reports contained the phrase, "possibly armed with a screwdriver". That does not suggest that the witness (or witnesses) were sure that a screwdriver was provided.
The judge erred in not leaving the alternative offence of robbery to the jury. This is not a case in which it can be said that no miscarriage of justice resulted. It was not a case where the jury, if correctly instructed, would necessarily have returned a verdict of guilty of armed robbery with an offensive weapon. Nor is it a case where this Court should substitute a verdict of robbery.
In short, at common law, taking into account section 57(3) of the Juries Act, the following propositions emerge from the case law. Merely because an alternative verdict may theoretically be open or possible in the broadest sense, this is not enough to require an alternative verdict to be left. It must be a “reasonably open” or “fairly and practically open” or a “viable rational result” on the evidence before the jury. The duty to put an alternative verdict lies with the trial Judge, regardless of whether or not the prosecution or defence raise the issue. Third, the putting of an alternative verdict to the jury must not result in a miscarriage of justice.
In the present proceeding, the question of an alternative verdict was directly raised by the evidence in the trial and by the Judge during his summing up.
As earlier discussed, the defendant challenged the evidence of LD as to his identification of the defendant and as to his account of the circumstances. In particular, LD was challenged about the assertion that a Stanley knife had been used. It was put to LD that all the defendant held were keys and a mobile phone. The defendant gave sworn evidence in which he deposed to not having a Stanley knife in his hand at the time of the incident and that he was holding a mobile phone and keys. Evidence was also led that the police made no search for a Stanley knife at the defendant’s premises at the time of his arrest.
This broad review of the evidence demonstrates that a significant issue in the trial was whether the defendant had a Stanley knife in his hand at relevant times, or whether he was carrying a mobile phone and keys. As the use of a Stanley knife was an essential element of the aggravated offence, it was an element on which the prosecution carried the burden of proof beyond reasonable doubt.
In the course of summing up, the Judge directed the jury that the determination of the facts was their responsibility and that in their consideration of the evidence of the witnesses, they were entitled to accept the whole or any part or none of the evidence of a witness.
The Judge addressed the fact that the alleged weapon was not produced at the trial in the following terms:
I should point out that the Stanley knife alleged to have been held and used in the manner described has not been produced and tendered as an exhibit; indeed, the evidence suggests that it was not even located by the police. You might have expected the police to have done more in an attempt to locate the Stanley knife, if one existed; but perhaps, if it existed, it was hidden or otherwise disposed of. Perhaps you will conclude that the police responsible for placing evidence before the court were content to rely upon the evidence they already had in form of the oral testimony of the witness [LD] and the police who investigated and interrogated.
[Emphasis added].
This topic was also the subject of the question from the jury set forth above as to the importance to be placed on the weapon not being available as an exhibit. That suggested that the presence or otherwise of the Stanley knife at the scene was exercising the mind of the jury. The exhortation of the Juge that:
[i]t is for you to judge as to whether the absence of that Stanley knife has importance and has any impact on your decision
also bore on their conclusion as to whether the knife was used.
The Judge drew the attention of the members of the jury to the fact that there may be room for a mistake on the part of LD and emphasised the submissions made with respect to the eyesight of LD:
You are, ladies and gentlemen, confronted with a case here in which there are two quite conflicting accounts of what happened in that slip lane on Montague Road. There is little room – I do not say “no room” – for mistake. It is for you to say that, of course it is for you to judge, but I suggest that that is how you may well view things, that there is little room for mistake. But bear in mind what [counsel for the defendant] said about the eyesight of the witness, [LD], and his wearing of glasses, and also what he said regarding the failure or inability on the part of [LD] to identify the accused in the folder of photographs.
The Judge directed the jury that they needed to consider the possibility of there being a misunderstanding on the part of LD about the defendant holding a Stanley knife or merely holding keys and a mobile phone.
You should, ladies and gentlemen, give consideration to the possibility that [LD], if he made a mistake in identifying the accused in a folder of photographs, he might have made a mistake in testifying with accuracy as to what happened when his vehicle was approached by the accused in the slip lane on Montague Road. He might have been mistaken regarding what was in the accused’s hands.
[Emphasis added].
When dealing with the defence case, the Judge addressed the evidence and submissions on the topic of the Stanley knife:
The accused, in his evidence, denied the making of any threat, he denied the producing and the using of a Stanley knife, and he maintained that he had a mobile phone in his hand and car keys. …
[Benjamin Tilley] says that he did not see any Stanley knife. That, as far as it goes, supports the defence position, but he did not purport to assist either the prosecution or the defence as to whether the accused had anything in his hands and, if so, what, when he walked back behind the Mercedes to the red Colt car, and approach the driver’s side.
The defence relies on the absence of evidence of any Stanley knife. The defence submits – and I invite you to give due consideration to this – that, if a Stanley knife had been found and produced, you could be more readily satisfied that a Stanley knife had been used by the accused as alleged by the prosecution. In the absence of that evidence, you should consider whether the charge has been proved and proved beyond reasonable doubt.
The defence relies, by implication, upon the fact that the onus of proof rests with the prosecution throughout and that the standard of proof – I am here referring to the first three of the four elements – is proof beyond reasonable doubt. I have spoken about the absence of proof (the absence of the availability) of the Stanley knife, and I have invited you to give consideration to the submission made by the defence, based upon evidence that was adduced and the cross-examination of [LD], that there was a situation regarding his eyesight, the wearing of glasses. And also the defence emphasised the inability of [LD] to correctly identify the accused from amongst the admittedly shaven men in the folder.
It is reasonably possible, so it is argued by the defence, that [LD] was mistaken in his observations of the accused and mistaken with regard to his actions and words. The defence, as it is entitled to do, emphasises that if you, in your deliberations, conclude that you do not know and are not satisfied about where the truth lies, you should give the benefit of the doubt to the accused.
This discussion of the evidence and summing up, demonstrates that the question about whether a Stanley knife was held by the defendant was a significant issue throughout the trial.
In these circumstances, the jury, the ultimate arbiters of fact, were entitled when discharging their obligations as jurors, to consider the charge of the aggravated offence as well as the alternative offence. It was reasonably open to the jury to find that the defendant threatened the life of LD through words and conduct, but that there was a reasonable possibility that he did so whilst holding a mobile phone and keys and not a Stanley knife. Alternatively, it was reasonably open to the jury to consider whether the prosecution had excluded the reasonable hypothesis that the defendant did not hold or use a Stanley knife.
The alternative basic offence of threatening life should have been left to the jury. The evidence before the jury raised for consideration whether the Stanley knife existed or was used. It was a central part of the trial. The alternative offence was legally and factually open and was a viable rational result on the evidence. It would not have been unfair to the defendant. The judge should have left the alternative offence for the jury’s consideration, and should have done so even if counsel had objected.
Conclusion
The appeal against conviction should be allowed and there should be a retrial. In the circumstances there is no need to consider the appeal against sentence.