1 I have had the considerable advantage of reading in draft the respective reasons for judgment of Whelan JA and Priest JA. Their Honours have comprehensively described the course of events at the trial and have clearly exposed the legal issues raised by the grounds of appeal, in particular by ground 1 (concerning the judge's failure to leave alternative and lesser counts to the jury).

2 Like Whelan JA, I have concluded that the appeal should be dismissed. I would reject ground 2, concerning consciousness of guilt, for the reasons which his Honour gives. As to ground 1, I respectfully agree with Whelan JA's analysis of the course of the trial and with his reasons for concluding that the ground fails. As appears from what Priest JA has written, however, this ground raises an important issue of principle. The following additional considerations are relevant, in my view, as supporting the conclusion that ground 1 fails.

3 On the view taken by Priest JA, the fundamental right to a fair trial means that no conduct on the part of defence counsel can deny an accused the possibility of conviction for a lesser alternative offence, provided that it was a realistic possibility on the evidence.[1] In the present case, his Honour holds, the appellant was entitled to have the lesser alternatives[2] put - and the judge was obliged to put them - to the jury, notwithstanding the 'calculated abstention' of his counsel from requesting that the lesser alternatives be left.[3]

4 With great respect, I do not think that such an absolute proposition can be sustained on the current state of the law. On the contrary, it seems to me to be inconsistent with a series of decisions in the High Court and in this Court, to which I will refer. Those decisions emphasise that, in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to informed decisions made by defence counsel about the best way to conduct the trial in the interests of the accused. As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.

5 A convenient startingpoint is the recent decision of the High Court in Patel v The Queen.[4] The Court there had to consider whether there had been a substantial miscarriage of justice because of the admission at the appellant's criminal trial of highly prejudicial evidence. The prosecution contended that there had been no lack of fairness to the appellant because the relevant evidence had not been objected to by his counsel. In their joint judgment, French CJ, Hayne, Kiefel and Bell JJ said:

Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel's decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.[5]

6 Their Honours here cited passages from a number of earlier High Court decisions, which spell out very clearly what is meant by a 'rational, tactical decision' and explain the link between the making of such decisions and the right of an accused to a fair trial. The first was a passage from the judgment of McHugh J in Suresh v The Queen,[6] where his Honour said:

Having regard to the way in which the case was conducted, it is impossible to conclude that the admission of the complaint evidence constituted a miscarriage of justice. The evidence was admitted without objection because it was perceived to be highly supportive of the defence theory of the case. Other counsel may have elected to fight the case on a different basis from that selected by the appellant's counsel, but no one could reasonably say that a competent counsel would not have run the case in the way that defence counsel ran it at the trial.

The appellant wanted the evidence of the complaint to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the complainant's statement to her school friends therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the statement and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.[7]

7 The plurality in Patel also cited the joint judgment of Callinan and Heydon JJ in Ali v The Queen,[8] where their Honours had said:

It will frequently be difficult to make a confident judgment, after the event, of the actions taken and decisions made by counsel in the conduct of a long criminal trial before a jury. It is also difficult to make an assessment of the likely impact of them upon the deliberations of the jury. ... The evaluation that has to be made [on appeal] is whether the conduct in question produced a miscarriage of justice, that is, whether it deprived the accused of a chance of acquittal that was fairly open. As Gaudron J in T K W J v The Queen said:

[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that as fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.

One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test.[9]

8 Reference was also made in Patel to the following passage from the judgment of Gleeson CJ in Nudd v The Queen.[10] This passage is of particular importance, in my respectful view, because it draws attention to the significance which must necessarily be attached, in an adversarial system of criminal justice, to rational forensic choices made by defence counsel:

Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In T K W J v The Queen, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.[11]

9 There is longstanding authority in this Court to similar effect. In 1974, in Re Ratten,[12] the Full Court said:

Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and, if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice.

In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present ... then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice.

But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above.[13]

10 More recently, in R v Miletic,[14] the Court of Appeal (Winneke P, Charles and Callaway JJA) noted that these passages from Ratten had been 'restated and reaffirmed ... on a number of occasions'.[15] Their Honours continued:

As [these passages] demonstrate, in our system of law a criminal trial is adversarial in its nature and counsel is entitled, on behalf of the accused, to contest such issues as he believes ought to be contested and to do so in such manner as he believes the circumstances warrant. No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise will not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial.

An appellate court will nevertheless intervene if it is satisfied that something occurred at the trial which has led to a miscarriage of justice. It may be that the material before the court will demonstrate that there has been such defect of judgment or neglect of duty on the part of trial counsel that the court, on appeal, is left with the view that justice has miscarried. As Brooking J said, in his dissenting judgment in R v Sarek, at 987, there may be circumstances which make it appropriate for the court to 'interfere to protect an accused man from his own counsel'. Each case must, of course, depend upon its own facts and it is not possible to lay down, in advance, any precise formula which will provide the answer in any given case as to what conduct by counsel will have caused a trial to miscarry.[16]

11 The Court in Miletic concluded that the decision of trial counsel (to press for the inclusion of the record of interview)

was a calculated decision made by experienced counsel in the hope of gaining a forensic advantage. ... It was a decision based upon the hope and expectation that such advantage would outweigh the anticipated risk that attended the applicant's inability to adequately explain the untruths contained in the record of interview. As we have already said, decisions of that kind are constantly made by counsel as part and parcel of the adversarial system.

There can be no suggestion that there was a departure from the rules of proper practice and procedure, in the sense that the applicant did not have a fair trial according to law. On the contrary the decision made by counsel took advantage of the rules of procedure available to him. The fact that, in hindsight, the decision did not work the advantage for which counsel and the applicant hoped is not to the point. Decisions made during the course of a trial as to the best tactics to follow are decisions which 'depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions'.[17]

12 In none of the cases to which I have referred was the appellate court concerned with the present question, of whether an alternative offence should have been left to the jury despite defence counsel's deliberate decision not to request that that be done. The statements of principle are nevertheless expressed quite generally, and are of general application, founded as they are on the basal concept of a fair trial in an adversarial system.

13 In any case, as both of my colleagues have pointed out, in successive decisions dealing with the question of alternative offences this Court has expressed the view that (outside the murder/manslaughter category) a rational forensic decision by counsel - not to request that an alternative be left - is likely to be very significant in determining whether the failure to leave the alternative offence produced a miscarriage of justice.[18] Those decisions can be seen to be entirely in conformity with the principle to which I have referred, that rational forensic judgments made by defence counsel constitute an exercise, rather than an infringement, of the accused's right to a fair trial. That principle likewise reinforces the conclusion reached by the Court in Saad, that the principle in Gilbert v The Queen[19] and Gillard v The Queen[20] should be confined to cases in which the offence charged is murder.[21]

14 As explained by Gaudron J in T K W J, the objective test to be applied is 'whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage'.[22] Applying that test to the present case, it can readily be seen that the decision of defence counsel - not to request the judge to leave the lesser alternatives - was a rational one. It was a decision properly made in his client's best interests, as it carried with it the most important of forensic advantages, namely, maximising his prospect of acquittal. (The fact that he was convicted does not affect this analysis.)

15 As appears from the exchange with counsel set out in Priest JA's reasons,[23] the trial judge herself recognised this. Her Honour responded to the prosecutor's 'query' about the possible introduction of the lesser alternatives by saying:

... I think to introduce that at this stage would deprive the accused man of the possibility of an acquittal on that basis.

Defence counsel, by his silence, concurred. Plainly enough, defence counsel had concluded that his client's prospects of acquittal would be maximised if only the more serious charges (intentionally or recklessly causing serious injury) were before the jury. As Whelan JA points out,[24] the defence case was that there had been no intention on the appellant's part to make any contact with the victim, and that he was instead trying to take evasive action because of his fear of being attacked by the victim. Had the lesser alternatives been left, the jury might have preferred 'to take a middle course which is offered to them', rather than to acquit altogether.[25]

16 There is a related consideration, no less important, which concerns the obligation of a judge when instructing a jury. In her response to the prosecutor's query about the alternative offences, her Honour said:

This perfectly correct statement - which neither counsel challenged - reflected both the unfairness which would flow from the prosecution's changing its case at the last minute and also her Honour's obligation to frame the charge to the jury by reference to - and only to - the real issues in the trial.

In any given trial, the scope of the direction on these topics [the relevant law and the relevant evidence] will be defined - and limited - by the trial judge's identification of the matters in issue.

Axiomatically, it is the responsibility of the trial judge in every jury trial:

(a) to decide what are the real issues in the case;

(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;

(d) to explain to the jury how the law applies to the facts of the case; and

(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.

These propositions are of long-standing and of high authority. They have often been repeated in this court. If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.[26]

18 In 2012, the High Court in R v Getachew[27] emphatically reaffirmed the importance of trial judges shaping their directions by reference to 'the real issues in the trial':

The directions to be given to a jury on a trial for rape are to be moulded in the light of the proper construction of the relevant provisions of the Crimes Act and, no less importantly, having regard to the real issues in the trial. As this Court has repeatedly pointed out, the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues.[28]

19 If I may say so with respect, the trial judge in the present case discharged this obligation in exemplary fashion. As appears from the reasons of Whelan JA, her Honour was astute throughout the trial to ensure that the 'real issues' were identified, and she instructed the jury accordingly. Nothing occurred at any stage of this trial to suggest that there was an issue about whether the appellant had committed one or other of the lesser offences.

20 Of course, much of the responsibility for defining the 'real issues' in a criminal trial falls to defence counsel. As the Full Court said in Ratten, the right of an accused to make choices about which issues to contest is 'fundamental to the conception of fair trial under our system of criminal justice'.[29] In short, the considerations to which I have referred - about the significance of decisions made by defence counsel, and the need to define the 'real issues' - are closely linked.

21 This nexus is helpfully illustrated by the last of the passages cited by the plurality in Patel.[30] In Tully v The Queen,[31] Callinan J (with whom on this point Heydon J agreed) said:

No matter what the proper characterisation of the evidence of the uncharged acts was here, the fact is the appellant did not object to it, and sought to make forensic capital out of the self-contradictions in it, and generally, its incredibility because of its excessiveness. Furthermore, the appellant sought no redirection as to the way in which the trial judge dealt with it. This was almost certainly because the trial judge emphasised more than once the necessity for the jury to be satisfied beyond reasonable doubt that the complainant's evidence about the offences charged was true, and repeated the submission on the appellant's behalf that there were inconsistencies in the evidence of the complainant. The trial judge's directions were certainly spare, but not quite to the point of insufficiency in the circumstances. It would no doubt have been better if close attention had been paid to the nature and admissibility of the evidence of the uncharged acts, and the possibility of the desirability of different directions concerning them from those which were given. But, as the trial was conducted by the parties, and the issues joined, there was no error which could have led to a miscarriage of justice.[32]

22 I have read the reasons of Priest JA in draft. I agree with him that ground 3 is without substance and I have nothing to add. I am unable to agree with him in relation to grounds 1 and 2.

23 Priest JA has said something about the course of the trial and has summarised

the evidence. In order to deal with the two grounds upon which I find I am unable to agree with him, it is necessary that I review the course of the trial in relation to each of them. There are also some aspects of the evidence which I need to add to the summary Priest JA has set out.

24 I will review the course of the trial in relation to the issue of alternative 'injury' verdicts, set out the additional matters in the evidence to which I wish to refer, and then deal with ground 1. I will then set out the course of the trial in relation to the consciousness of guilt issues and deal with ground 2.

Course of the trial - 'injury' alternatives - what was in issue and what was open

25 The prosecution case was that Mr James had deliberately driven his car into Mr Sleiman. The injuries which Mr Sleiman suffered were serious on any view.[33]

26 Mr James was initially arraigned before Lasry J on a presentment containing one count of the offence of intentionally causing serious injury and an alternative count of recklessly causing serious injury. The trial before Lasry J began in January 2010 but the jury was discharged before verdict.

27 On 29 August 2011 Mr James was arraigned on the same presentment before Williams J. At the outset Williams J advised counsel that she proposed to give the jury two sheets of paper with the elements of the two offences on the presentment set out. She observed that Lasry J had only given the jury a sheet with the elements of the offence of intentionally causing serious injury but that she proposed to give the jury the elements of the alternative count as well. Counsel agreed with that course. In the course of that discussion counsel for Mr James said: 'Serious injury is conceded your Honour'. Counsel subsequently advised her Honour that they were happy with the elements as she had set them out on the sheets which were to be given to the jury.

28 The sheets upon which the elements were set out do not seem to have been retained on the file. It is clear from the transcript that the elements of each count were briefly listed in a way identical to, or very close to, what is set out in the Victorian Criminal Charge Book.[34] The elements for the offence of intentionally causing serious injury are set out and numbered as follows:

1. that the complainant suffered a serious injury; and

2. that the accused caused the complainant's serious injury; and

3. that the accused intended to cause serious injury to the complainant; and

4. that the accused acted without lawful justification or excuse.

29 On the alternative count of recklessly causing serious injury only the third element is different. On the alternative count the prosecution must prove that at the time the accused did the acts that caused the serious injury he was aware that those acts would probably result in the complainant being seriously injured.

30 In the course of the trial the matters in issue were canvassed by counsel both before the jury and in their absence. Sometimes reference was made to the alternative reckless count on the presentment and sometimes it was not. No-one ever lost sight of that alternative, but it was not seen as necessary to make reference to it whenever the third element was the subject of discussion.

31 After the Crown opening, defence counsel outlined to the jury what the defence perceived to be the issues in the case.

32 Defence counsel told the jury that there were 'three real issues'. The first of those issues concerned the credit of Mr Sleiman. Counsel said that Mr Sleiman had lied when he told Police that he had taken a knife to his meeting with Mr James because he used it 'for cutting fruit'. Counsel contrasted Mr Sleiman's credit with that of Mr James who had answered police questions without a lawyer, when told he did not have to, and who had told the police that Mr Sleiman ' ... came at me with a knife'.

33 The second matter addressed by counsel was that the jury should be careful not to allow sympathy for Mr Sleiman to confuse the issue. Counsel said:

... do not confuse the fact that he was seriously injured with there must be fault elsewhere. If he'd succeeded in stabbing my client, Mr Sleiman would be down the back and my client would be either in Springvale Cemetery or in the witness box.

34 The third issue which counsel put to the jury concerned the disputed debt and related again to Mr Sleiman's credit.

35 Counsel then made reference to Mr Sleiman's prior convictions and said:

You start trying to stab someone through a car with a knife, you're taking your chances, and my client is entitled to do what he needs to do to get away from a situation that could have ended in his death.

36 The way defence counsel put the matter to the jury was that Mr James reacted to an attack upon him with a knife by Mr Sleiman and that he was entitled to 'do what he needed to do to get away'. In his record of interview Mr James had said that Mr Sleiman came to the door of his vehicle with a knife, a big knife, and that he drove off trying to avoid him. He had said he 'just avoided him and kept going'. He had maintained that he did not know that he had hit Mr Sleiman or injured him.

37 After defence counsel had told the jury what he said the issues were, the trial judge sought to clarify the issues with him in the absence of the jury. Defence counsel then said:

The two issues are intent, in that the jury will need to be satisfied he had an intention in relation to his actions, and obviously the intention to cause serious injury, but also they will then need, if they get to that stage, which is obviously the first step, and if they didn't get to that stage the verdicts would be not guilty. They will then need to be satisfied beyond reasonable doubt there was no lawful excuse in relation to those actions, if they're satisfied that the requisite intent was formed to do the actions and to cause a serious injury.

38 Her Honour then distributed the sheets containing the elements of the offences to the jury. She told them:

You are the judges of the facts in this case and you have to decide at the end of the case whether the prosecution has satisfied you beyond reasonable doubt of the crime in question, the elements of the crime in question. So you have to decide that.

But there's no issue between the parties about the first two elements of those crimes. You will see that they're both the same. That Mr Sleiman has been seriously injured and that his serious injury was caused by Mr James. There is no dispute between the parties about those two elements.

There are issues, though, as to whether Mr James caused that serious injury intentionally or whether he caused it recklessly and as to whether you should be satisfied that he wasn't acting in self defence. They're the matters in dispute between the parties.

39 There was continuing debate throughout the course of the trial between counsel for the prosecution and counsel for the defence in relation to a number of matters. One of them was tension and ambiguity which the prosecution suggested existed as a result of the defence position that any contact between Mr James' car and Mr Sleiman was accidental and, at the same time, that Mr James had acted in self-defence. In this context, and more generally, the trial judge and defence counsel discussed the issue of intention on a number of occasions.

40 Defence counsel accepted that Mr James intended to drive the car in the way that he did, but did not accept that he deliberately hit Mr Sleiman. At one point the following interchange occurred between the judge and defence counsel:

HER HONOUR: Just hold on. You are going to go to the jury and say, 'Yes, we intended the act but no, we didn't intend to cause serious injury', because that's where the intention comes in.

[DEFENCE COUNSEL]: What I'm going to be saying to the jury is, 'I say that you should accept that [the victim] had a knife in his hand, that he was being threatening about it, that the evidence from Monica Woods of him driving backwards and forwards and him not leaving the area of the car like he appeared to be glued there, I'm paraphrasing now, is consistent with what we say. It's jerky motions with the car going backwards and forwards a metre which clearly couldn't hit anyone in the context of what she's described. He clearly has hit him. He's left the car park in an extraordinary manner of driving over the hedges. Now, do you think that when events happen in such sudden unexpected repetitively because, my friend will hear the truth, to suggest that you're going to meet someone in the circumstances we've heard about.

41 Her Honour interrupted counsel at that point suggesting that he was not really addressing the issue of how the question of intention was to be put.

42 Defence counsel then said: 'There is no doubt that he intended the acts he did in relation to whatever actions he took on the steering wheel of that car'.

The first step is if they're not satisfied - and this is what I said the other day, if they're not satisfied beyond reasonable doubt of intention, and when I use the word 'intention' in this context I mean the intention to cause serious injury or recklessly cause serious injury, not the conscious, deliberate and voluntary doing of actual actions, but the intention to cause those things, they will return a verdict of not guilty. They may well be of the view that in the circumstances there was - they don't accept the explanation, but are of the view that in the circumstances as they find them he was entitled to move the car as he did to defend himself ...

44 There was never any doubt that the prosecution needed to prove an intention to cause serious injury, or that that element was in issue in the trial. But the issue in controversy as to intention did not concern the severity of the injury intended; rather, it concerned whether any injury was intended. The issue was whether the impact between the vehicle and Mr Sleiman was deliberate or not. As noted earlier, the appellant's account at interview was that he had been taking evasive action and had not even been aware of making contact with Mr Sleiman.

45 The appellant's written case on the application for leave to appeal correctly describes what the issues were in the trial. The written case reads [at para 6.6]:

The defence case was, after all, two-fold. Primarily, it was submitted that the applicant had, without knowledge or accidentally, struck KS and caused his injuries. Alternatively, it was submitted that he, under threat from KS and a knife, caused KS's injuries in self defence.

46 It was never suggested, in the course of the many interchanges between counsel and the trial judge as to the third element, that it might be open to conclude that Mr James had struck Mr Sleiman deliberately, causing the serious injuries which he did suffer, but with an intention of causing injury rather than serious injury.

47 In his final address to the jury when dealing with the issue of intention, defence counsel emphasised that they must differentiate between intention, in the sense of intentionally performing the manoeuvres which Mr James did in his car, and intention in the sense of intending to cause injury 'of any description without lawful excuse'.

48 After defence counsel's closing address the judge confirmed with him that the issue in relation to intention was: 'Whether there was an intention to hit Mr Sleiman, that is drive at him deliberately or accidentally ...'. In the course of a long discussion with the judge about the issue, defence counsel repeatedly confirmed that the only issue as to the third element was whether the impact was deliberate or accidental.

49 Her Honour commenced charging late in the afternoon on the sixth day of hearing.

50 Her Honour dealt with the elements of the two offences on the presentment by reference to the sheets which she had handed out at the outset and which counsel had approved. She told the jury that it was not disputed that Mr James had caused Mr Sleiman serious injury and that Mr James admitted striking Mr Sleiman with his car and causing that serious injury. She told them: 'But he argues that he didn't hit him with his vehicle intending to cause him a serious injury'. She then went on to tell them that if they found that he did hit Mr Sleiman intending serious injury then they would need to consider self-defence.

51 Before adjourning that afternoon, she encapsulated the issues for the jury in the following terms:

So, you can see that there are a number of facts about which you must be satisfied beyond reasonable doubt before you could find Samuel James guilty of the principal offence of intentionally causing serious injury and I will just recap them.

First, that he deliberately hit Sam Sleiman with his vehicle and didn't hit him by accident. Secondly, that Samuel James intended to cause Sam Sleiman serious injury when he hit him deliberately and that he did not act in self defence when he intentionally caused that serious injury.

52 When dealing with the elements of the offences on the presentment that afternoon her Honour did not give the jury the standard directions about what constitutes a 'serious' injury and the direction that an intention to only injure would not satisfy the third element. She addressed the jury as if the only issue on the third element was whether the impact was deliberate or not. As I have explained, this reflected the interchanges with counsel throughout the trial. There were no exceptions to what her Honour said that afternoon.

53 Her Honour charged throughout the following day, the seventh day of hearing, dealing with other matters, including the consciousness of guilt issues to which I will turn below. Her Honour had effectively completed her charge at the end of that day, leaving just a few more formal matters to be addressed the following morning.

54 On the morning of the eighth day of hearing, before the jury came in, the following interchange occurred:

HER HONOUR: I realised last night that I had not told the jury, despite the agreement between the parties that Mr Sleiman suffered serious injury, that it's up to them and I've not told them what a serious injury is and I think I should do that.

[PROSECUTOR]: Yes, your Honour.

HER HONOUR: I also realised that I'd not told them that it would not be sufficient for the intent to be to injure. There must be an intention to seriously injure although it doesn't need to be an intention to inflict that injury.

COUNSEL: Yes.

[PROSECUTOR]: I agree with that, your Honour, and then the combination of injuries.

HER HONOUR: Yes, and then the combination of injuries. Yes, I'll read the serious injury description in full and the same with the intention, which I hadn't done.

55 When the jury entered the court her Honour then gave them the standard directions from the charge book in relation to 'serious' injury. Amongst other things, in accordance with those standard directions, she told them:

So this element will not be satisfied if he only intended to injure Mr Sleiman, but happened to seriously injure him. He has to have intended to seriously injure him.

56 The jury retired to consider their verdict very soon after that further direction.

57 Approximately an hour and a half after the jury had retired, they returned with three questions. The third question was as follows: 'Need further clarification between the third elements of each charge, that is, difference between intent and being aware that his acts would probably cause serious injury'.

58 The trial judge discussed that question with counsel. The issue which had been often canvassed during the trial - as to the difference between intending to manoeuvre the car in a particular way and intending to cause the serious injuries -was again addressed. The following interchange occurred in that context:

HER HONOUR: What does that mean? 'Intention to propel the vehicle as he did', that means drive as he did, drive forwards as he did, at the speed he did, in the direction he did.

[DEFENCE COUNSEL]: Yes. That is different to the intention which needs to be inferred that he did those acts with the intention of striking Mr Sleiman.

HER HONOUR: No, not with the intention of striking, with the intention of causing him really serious injury.

[DEFENCE COUNSEL]: Yes, but it must follow in the context of this case that he intended to strike him, in the context of this case, and he had when he intended to strike him the intention to cause serious injury.

HER HONOUR: Yes.

59 In this passage defence counsel expressly articulated something which had been tacitly accepted throughout the trial. This was that if Mr James had hit Mr Sleiman deliberately it must follow that he intended serious injury.

60 Shortly afterwards defence counsel articulated the issue as follows:

The issue is not did he intend to drive his car, did he intend to drive his car into Mr Sleiman? That's the issue.

It's the act of driving in the circumstances that causes the injury, isn't it? It's the driving, it's the driving he does, that causes the injury because driving as he does, he hits Mr Sleiman and there are two things; he can either intend, if you like to hit him and cause him really serious injury, which is the principal charge, that's what is said the jury should infer, that he's got a man in front of him and he intentionally drives the car forward in those circumstances. Well, the prosecution says he's got to have intended to cause him really serious injury.

MR SHIELDS: I agree with that.

62 Here defence counsel explicitly accepted (again) what in my view had been implicit throughout the course of the trial. If the impact was deliberate, the requisite intention must follow, in this case.

63 Defence counsel in this case is an experienced criminal barrister. He has conducted many criminal trials. It is apparent from his conduct of this trial, in relation to the many disputed issues which arose, that he does not concede issues lightly. It seems to me that when the jury retired the possibility that Mr James had struck Mr Sleiman with his vehicle deliberately but without the requisite intention had never occurred to anyone involved in the trial as a realistic possibility.

64 The answer which the judge gave to the jury's third question was, in substance, a repetition of the directions she had given previously in relation to the third element of the two offences. She repeated the directions which she had previously given, after her charge had all but concluded, which included the direction that the third element would not be satisfied if Mr James only intended to injure Mr Sleiman but happened to seriously injure him.

65 It was after that answer that the prosecutor raised the question of whether the jury should be directed as to the possibility of finding an intention to, or foreseeing the probability of, injury as opposed to serious injury. Priest JA has set out the relevant interchange between the prosecutor and the trial judge.

66 It seems to me the issue was raised somewhat diffidently by the prosecutor, and I think it is fair to say that her Honour's reaction to it was to reject it out of hand. She did so not only because it was being raised so late but also because 'the case hasn't been framed in that way' and because 'to introduce that at this stage would deprive the accused man of the possibility of an acquittal'.

67 Defence counsel said nothing while this interchange was taking place, and the prosecutor did not persist, saying 'I say no more'.

68 There are some aspects of the evidence which I think need to be added to the summary Priest JA has given. They are:

1. Mr Sleiman when giving his evidence said that, prior to Mr James' vehicle arriving at the car park, he was having an angry and animated argument with him over his mobile phone. Whilst Ms Woods in her evidence was unable to say whether Mr Sleiman had a phone, Mr Sleiman's evidence did put in context the evidence she gave about Mr Sleiman yelling and behaving erratically in the car park before Mr James arrived.

2. It is true that Ms Woods did not include in her statement, or in the evidence she gave at the committal, her evidence that she saw Mr James run over Mr Sleiman after the initial impact. I would only add that in her evidence she was adamant that that was her memory as she stood in the witness box, and she also said that as time went by she had thought about it and remembered more things.

3. Finally, in relation to the evidence of Dr Cunningham, I would observe, firstly, that she said it was 'highly' unlikely that the injuries sustained were a result of a glancing blow. Secondly, the evidence Dr Cunningham gave about three 'scenarios' which might account for the injuries she saw needs to be put in its context. She was asked whether the injuries were the result of one impact or several impacts. She explained that there were injuries she described as 'primary' and injuries which she then referred to as being 'further injuries' or 'subsequent injuries'. She made it clear that she was not suggesting that she was able to categorise all the particular injuries into these components. It was in that context that she gave evidence of various scenarios which might explain the multiplicity of injuries. Each of those scenarios involved at least two occasions of trauma. There was an initial or primary impact causing injuries, followed by further injuries as a consequence of being thrown over the bonnet, or impacted by the car whilst on the ground, or impact with the ground after a primary impact from the car. This evidence was unchallenged. The injuries sustained were extensive and life threatening. I do not think it is difficult to see why the trial proceeded on the basis that if the impact was deliberate the requisite state of mind would be established.

Ground 1 - failure to leave the lesser alternatives

69 I agree with Priest JA that it is plain that defence counsel, for forensic reasons, deliberately decided not to ask the judge to direct the jury about the lesser alternatives, being intentionally causing injury or recklessly causing injury. But it seems to me that it went further than that. During the course of the trial the 'injury' alternatives were never perceived by any party as being realistically open, so much so that the trial judge initially gave no direction at all about the 'serious' component of third element of the charged offences, without any exception being taken by counsel. Defence counsel expressly stated when addressing the trial judge on the jury question, that, in the circumstances of this case, if it was found that Mr James had deliberately struck Mr Sleiman with his car then he had had the requisite intention.

70 I wish to emphasise that I see no shortcoming, or failure to protect his client's interests, in defence counsel's approach.

71 The issue then becomes what is the trial judge's legal obligation in relation to lesser alternatives in these circumstances.

72 In R v Kane[35] this Court divided on the issue of whether the alternatives of intentionally and recklessly causing injury ought to have been left in a trial where the accused had been presented on counts of intentionally causing serious injury and recklessly causing serious injury. The particular injuries in that case were a stab wound inflicted with a pair of scissors and other injuries inflicted after the victim's head had been pounded against a door handle. The Crown opened the case on the basis that the serious injury was either the stab wound alone or a combination of all of the injuries including the stab wound. In the course of the trial the Crown changed its position contending that the accused could be convicted on the basis of the injuries other than the stab wound.

73 In Kane the majority held that the lesser alternatives should have been left. Ormiston JA dissented. He reviewed the authorities in detail and concluded that there is no basis in principle for insisting that lesser alternative charges be left in every case, except in cases where the charge is murder and the alternative is manslaughter. Ormiston JA considered that the issue of whether lesser alternatives should be left otherwise depended upon all the circumstances of the particular case including the attitude of defence counsel. He said:[36]

This long excursus has been intended to show that, except in cases of homicide, there is no basis in principle for asserting that suspicion of the deliberations of the jury justifies an insistence on all alternative charges being left and explained to a jury; nor can such a 'principle' satisfactorily form a basis for holding that, where that is not done, the verdict on the primary charge must be overturned without question. That does not preclude the Court taking a different view if circumstances justify it. Clearly it would be different if the accused or counsel has raised the issue or has sought that any alternative charge be left for the jury's consideration.

74 Callaway JA, with whom Batt JA agreed, determined that the change in the Crown case, in the particular circumstances there, meant that a direction about the lesser alternatives had been required. But Callaway JA said that ... '[t]he position would have been different if the choice had remained between the stab wound on its own and all the injuries including the stab wound.'[37] Callaway JA went on to explain that there was a view of the evidence which would have led to a conclusion that the accused was not responsible for the stab wound. He pointed out that the other injuries could amount to serious injury, but, in the way the case was conducted, it was not accepted that they would do so.[38] He then observed:[39]

In the form in which the case was ultimately left to the jury it was not, or was no longer, an 'all or nothing' case. It stood in contrast with one where the injury on which the Crown relies is a serious injury on any view.

75 In a postscript to his judgment, written in response to Ormiston JA's judgment, Callaway JA said:[40]

... I do not consider that every alternative verdict must be left to a jury. The answer to the question whether any such verdict should be left depends on all the circumstances, including the dictates of public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of counsel. The test is what justice requires in the particular case.

76 In R v Saad[41] Nettle JA, with whom Chernov JA and Harper AJA agreed, reviewed the relevant authorities including Gilbert v The Queen,[42] Kane and in particular Ormiston JA's dissenting judgment, and Gillard v The Queen,[43] and concluded that in relation to offences other than murder (and in relation to murder where the relevant lesser alternative is not an 'included' offence), the question of whether a lesser alternative is to be left to the jury is to be decided in accordance with what was said to be the general principle identified in Kane, being what justice requires in the particular circumstances of the case. That, in turn, depends on all the circumstances of the case, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of the accused's counsel. His Honour went on:[44]

Above all, however, one must keep in mind the course of the trial. Other things being equal the effect of forensic judgment on the part of counsel is likely to be one of the most important considerations for, notably, that was the basis on which Callinan J distinguished Ross in Gilbert. As his Honour put it, counsel in Ross had made an informed decision to abstain from seeking an alternative verdict of manslaughter. It has since been held in Gillard that counsel's calculated abstention from seeking that manslaughter be left as an alternative to murder is no longer a basis for the judge not to leave it as an alternative verdict. But for the reasons already given, I take Gilbert and Gillard to be confined to cases in which the offence charged is murder and the ground of appeal is the judge's failure to leave to the jury an available alternative verdict of manslaughter. As I see it, calculated abstention from raising any other possible alternative verdict remains a very relevant consideration in other cases.

77 Nettle JA's analysis of Gilbert was adopted and approved by this Court in R v Bui.[45]

78 In R v Christy[46] this Court referred to Nettle JA's analysis of Gilbert and Gillard in Saad, indicating that it was unnecessary to enter substantially upon the debate as to the reach of the principles there. But having quoted what Nettle JA had said in Saad about the forensic judgment of counsel being likely to be one of the most important considerations, Kaye AJA, with whom Maxwell P and Kellam JA agreed, said:[47]

It follows from the foregoing authorities that the critical question in this appeal is whether the decision of the trial judge to remove the charge of common assault from the jury's consideration might have deprived the applicant of a fair trial. That question needs to be addressed in the context of the issues which were at large in the trial, and in the context of the course which the trial took.

79 Nettle JA's analysis in Saad was expressly adopted by this Court in R v D D.[48]

80 If there remained any continuing uncertainty as to the importance in this context of the course of the trial and the attitude of defence counsel, in my view it was removed by the decision of this Court in R v Nous.[49] After reviewing the authorities, the Court held:[50]

The following factors bear upon whether, in the interests of justice, in cases other than murder/manslaughter, a lesser alternative offence should be left to the jury:

(1) the presence of evidence which raises the alternative offence as a real and not remote or artificial possibility;

(2) reliance by a party upon such evidence in the course of the trial as evidence which is inconsistent with proof of one or more of the elements of the more serious offence;

(3) a real chance that the jury may convict the accused of the lesser offence; and

(4) a request by a party that the lesser alternative offence be left to the jury.

...

A failure by counsel at trial to request that the alternative lesser offence be left to the jury will generally assume great significance on an appeal if complaint is made for the first time that the lesser alternative offence was not left to the jury.

81 In Victoria (in cases other than murder at least) the test to be applied in determining whether lesser alternatives are to be left is what justice requires in the particular circumstances of the case. In that context the position taken by defence counsel at trial may be a significant factor. This has been the accepted situation in Victoria for some years as a consequence of a series of decisions by this Court.[51] The circumstances in which this Court may properly depart from its own prior decisions, other than when constituted by a bench of five, are exceptional.[52] I do not consider that such exceptional circumstances exist here.

82 Turning then to the question of whether justice required, in the particular circumstances of this case, that the lesser alternatives be left, it seems to me that the relevant considerations are the following:

(1) This was a case of the kind to which Callaway JA had referred in Kane where the injury was serious on any view.

(2) There was little evidence which raised the lesser alternatives as a real and not remote or artificial possibility. The lesser alternatives were not realistically open on the basis of the evidence given in the trial by Mr Sleiman or by Monica Woods, or in the evidence constituted by Mr James' record of interview. Mr James in his record of interview had said that he had tried to avoid Mr Sleiman, that he had avoided him, and that he had left the car park not knowing that he had been injured at all. In my view, this was what Callaway JA had called in Kane an 'all or nothing' case.

(3) The only evidence which might have supported a conclusion that the striking was deliberate but that there had not been an intention to seriously injure (or foresight of that probability) was the evidence constituted by the references to Mr Sleiman's police statement where he had apparently said that Mr James had hit him while reversing and swinging the wheel. Mr Sleiman did not, in my view, adopt that evidence when it was put to him in cross-examination. On the basis of this evidence it was theoretically possible that a conclusion could have been reached that there was an intention to injure whilst having a reasonable doubt about an intention to seriously injure but in the circumstances of this case that was remote. Amongst other things, it seems to me that that conclusion would have required the rejection of Dr Cunningham's uncontested evidence as to the scenarios which would account for the injuries.

(4) It was never put to the jury by any party at the trial that there was evidence which could, or should, lead to a conclusion that the accused might be not guilty of the charged offences but be guilty of the lesser alternatives.

(5) Defence counsel's attitude went beyond calculated abstention from raising the lesser alternatives. There was certainly that; but in addition defence counsel tacitly adopted the trial judge's emphatic rejection of the possibility in response to the prosecutor's diffident raising of the issue after the jury question had been answered. More importantly, defence counsel throughout the trial had implicitly accepted that, if Mr James had struck Mr Sleiman deliberately, the requisite state of mind in terms of serious injury must follow, and he twice expressly adopted that position when addressing the jury question.

83 In my view, this ground should be rejected. There was little evidence which raised the lesser alternative offences as real possibilities. No party relied upon that evidence to suggest that conviction on the lesser alternatives was open. This was an 'all or nothing' case involving injuries which were serious on any view. The attitude of defence counsel was clear and unequivocal. This Court should be loath to substitute its own retrospective judgment based on the transcript for that of the experienced counsel who conducted the trial.

84 At the conclusion of the trial, the only matters put to the jury as consciousness of guilt were certain aspects of certain lies alleged by the prosecution. But when the trial began there were a range of matters which potentially raised issues of consciousness of guilt.

85 The consciousness of guilt issue was first raised on the third day of the hearing. Her Honour referred to the fact that lies and post-offence conduct had been mentioned. The prosecutor then began outlining proposed reliance on post-offence conduct. This conduct was the subject of submissions throughout the course of the trial thereafter. In substance, the Crown wished to rely on Mr James' failure to continue to pursue the debt which he alleged Mr Sleiman had owed him after the incident as being evidence of consciousness of guilt. It was also said that there had been flight of a kind, in that Mr James had failed to return home for several days after the alleged incident. After the initial exchange, her Honour foreshadowed the need to address the consciousness of guilt issues the following day.

86 On the following day (fourth day of hearing), the issue was addressed again. Defence counsel referred to the prosecution's reliance upon alleged lies in the record of interview. The prosecutor told the Court that he would provide the Court and the defence with a note or summary of how the consciousness of guilt issues were put.

87 On the following day (the fifth day of hearing), there was a delay in the next witness and, while waiting, the issues concerning consciousness of guilt were addressed again. The prosecution had delivered a document headed 'Post-offence Conduct Relied On By The Crown'. That document was placed on the Court file. There were three items in that document. The third one concerned the alleged failure to follow up the debt. The other two items, under each of which were detailed references to the record of interview and to the evidence, were:

(1) The accused asserts in the record of interview that his motor vehicle did not strike Sleiman injuring him; that he 'avoided him'. It is open to the jury to conclude this assertion is a lie.

(2) The accused asserts in the record of interview that he had no idea he had injured Sleiman. It is open to the jury to conclude this assertion is a lie.

88 In the document the Crown provided, the particular words used in particular answers in the record of interview were extracted so as to confine the lies relied upon to two specific assertions - that the appellant had avoided Mr Sleiman and that he had no idea he had injured Mr Sleiman.

89 Most of the early submissions on the document concerned the post-offence conduct in item 3. The defence submitted the prosecution could not rely upon that conduct as consciousness of guilt. The prosecutor eventually gave up on item 3.

90 As to the alleged lies, and in particular the evidence which would prove the two assertions relied upon to be lies, the prosecutor said the following:

Yes, there's two - the Crown would rely on, to prove the falsity of the propositions, the Crown relies on the evidence of Monica Woods and also the medical evidence and you argue, the argument will be, it's a matter of drawing an inference, that you could not have caused those injuries by avoiding, what ever that might mean - I mean, subject to debate too I suppose - but we're talking about what the jury is capable of finding. You couldn't cause those injuries without - by avoiding, which is the lie, the victim. So we say it rests on, it rests a bit on I suppose Khadr Sleiman's evidence but it mostly rests on the observations made by Monica Woods and the medical evidence to demonstrate the untruths.

91 Defence counsel initially objected to reliance upon the specified lies as consciousness of guilt. Submissions were made in relation to the answers given in the record of interview and defence counsel particularly relied upon the divergences between Mr Sleiman's evidence and Monica Woods' evidence, submitting that the Crown ought to be required to say which version they were going to submit that the jury should adopt.

92 Most of the submissions at this point were directed towards clarifying the aspects of what Mr James had said in his record of interview which were relied upon as being consciousness of guilt lies. Those aspects were that he had avoided Mr Sleiman and that he was unaware he was injured. That having been identified as the ambit of what was to be put, defence counsel then said (somewhat in frustration perhaps):

Alright. Your Honour, I'm not objecting to any of this any further so I withdraw my objections, so which ever ones Mr Horgan identifies I have no objection to an Edwards direction attaching and it should be a full Edwards direction.

93 Defence counsel did reserve his position to this extent. He said that he might need to re-address the issue after he had heard the prosecutor's final address.

94 In his final address the prosecutor submitted that Mr James had given a 'demonstrably false account' of what had happened that night. He dealt with the consciousness of guilt lies very briefly at the end of his address. He said that there were two specific things Mr James had said which the trial judge would tell them they could use in a particular way as consciousness of guilt.

95 Defence counsel put to the jury that what Mr James had said in his record of interview was the truth.

96 On the day after the addresses (the sixth day of hearing), the trial judge gave counsel a draft of what she proposed to say about consciousness of guilt. She also gave counsel a new draft of what she proposed to say about self defence. She had provided an earlier draft on self defence to counsel. Defence counsel began making submissions by reference to those drafts.

97 Defence counsel submitted that, as he understood it, the inference which the prosecution said could be drawn from the consciousness of guilt lies concerned intention and that the consciousness of guilt lies were not relied upon as negating self defence. Defence counsel said that, when he had conceded that the lies could be relied upon as consciousness of guilt, he had done it on the basis that it went only to intention and not rebutting self defence. Defence counsel said:

I conceded the application on the basis upon which it was being advanced to your Honour, which was, it tended to incriminate him in relation to his driving and his intention to strike and his intention to cause serious injury. But not in relation to rebutting self defence. That's what I conceded. That was the application before your Honour.

98 Counsel then began working through the trial judge's draft of what she proposed to say in relation to consciousness of guilt.

99 The first matter which was dealt with was that defence counsel did not wish the directions to be confined to the specific aspects of the answers upon which the prosecution relied. He wanted larger sections of the record of interview read so as to give context to what was said. Defence counsel also wanted an explanation to be given by the trial judge in relation to one of the questions, and he wanted her to say that the consciousness of guilt issue did not relate to the issue of self defence. Finally, counsel suggested certain inclusions in the portion of the draft charge dealing with other possibilities or explanations for the alleged lies.

100 Counsel for the Crown argued against the suggestion that the consciousness of guilt lies were not relevant to negating self defence.

101 The trial judge in her charge did everything defence counsel submitted that she should, except for the express direction which defence counsel wanted about self defence. That issue was dealt with in the charge in a way I will explain.

102 The trial judge began charging later that day. What she said to the jury about consciousness of guilt closely followed the standard charge in the charge book. As to the lies relied upon, the judge said:

In this case it is only from the alleged lies identified by Mr Horgan about Mr James avoiding Mr Sleiman and about Mr Sleiman not being injured to his knowledge, that you could conclude he was admitting that responsibility.

103 The trial judge went through each of the lies relied upon, not just reading the particular part of the answer where the two specified alleged lies appeared, but reading the whole of the answer and sometimes other answers as well, in accordance with the submission which had been made to her by defence counsel. In each case, however, she then specified that the only lie relied upon in this context was either avoidance or lack of knowledge of injuries to Mr Sleiman.

104 When directing the jury as to the way in which they could use the alleged lies she told them that they could use them to prove the acts necessary for the offence and the necessary mental element. She did not tell them that they could rely on the lies as consciousness of guilt in order to negative self defence.

105 She told the jury the evidence which the prosecution said revealed the two specific assertions to be lies was the evidence of Monica Woods and the medical evidence. She emphasised that no other lies could be used in this way and that other lies were relevant only to credibility.

106 No exceptions were taken to what her Honour said that afternoon.

107 The following morning (seventh day of hearing), her Honour raised the possibility that there might be a risk of the jury using consciousness of guilt reasoning in relation to the post-offence conduct and she raised the issue of whether a warning ought to be given. Her Honour decided that she would go away and prepare a draft of what she might say and then return. She did so. The prosecution resisted the suggestion that the trial judge ought to give the jury directions limiting the use which they could make of the evidence of post-offence conduct. Counsel for the defence supported such a direction being given.

108 After addressing the post-offence conduct, defence counsel referred again to the issue of the alleged consciousness of guilt lies and self defence, and the following interchange occurred:

[DEFENCE COUNSEL]: There's one further matter which sort of got lost this morning, but I would ask your Honour to make clear to the jury that the consciousness of guilt lies as advanced, and obviously not in those terms, by the Crown go to connect Mr James with the aspects of the crimes as alleged in relation to intent to strike him and intention to cause serious injury.

HER HONOUR: That's what I told them yesterday. You've got the transcript.

109 Defence counsel said he did not have the transcript and the judge referred him to the fact that he had had a draft of what her Honour proposed to say, and which she believed she had said, in relation to consciousness of guilt. Counsel then said he would look at the transcript and if he had any further concern he would raise it. Nothing further was raised.

110 The trial judge gave a direction in relation to the post-offence conduct, as defence counsel had submitted that she should. No exceptions were taken.

111 I agree with what Priest JA has said about ground 2(a). I would only add that, as a practical matter, it is sometimes impossible to satisfactorily identify and analyse consciousness of guilt issues until the evidence has been heard. Certainly, these issues must be dealt with before final addresses, as this Court explained in R v Ciantar.[53]

112 What the trial judge directed the jury about consciousness of guilt accorded with the submissions made by defence counsel on every issue. Defence counsel conceded that the particular lies relied upon were capable of constituting consciousness of guilt admissions, other than in relation to negativing self defence. Defence counsel successfully argued that the alleged lies were not capable of negativing self defence in the circumstances here. He submitted that the judge should not confine her directions to the very narrow statements relied upon by the prosecution but that she should set out their full context in the course of the charge. She did so. The judge made it clear to the jury that nothing else could be relied upon in this way, either lies or post-offence conduct.

113 Defence counsel pursued the consciousness of guilt issues with vigour and persistence and, so far as I can see, complete success.

114 I do not agree that the consciousness of guilt lies in this case involved 'circular reasoning'. Circular reasoning in this sense refers to a position where a jury cannot determine that the statements relied on are lies without determining the issue of guilt itself.

115 In this case the prosecution submitted that much of what Mr James had said in his record of interview was false, but the only lies they relied upon as implied admissions were the statements Mr James had made that he had avoided Mr Sleiman and the statements Mr James had made that he did not know he had injured him. The judge made this clear in her charge. She told them that in terms, and she

repeated it on every occasion when she dealt with the relevant parts of the record of interview.

116 The jury were able to determine that these particular statements were lies without having first determined what was ultimately at issue in this case. Relevantly, the issue was intention (or knowledge of the probable consequences). As far as these specific lies were concerned, the issue was not whether Monica Woods' evidence should be accepted in full to the criminal standard but rather whether, having regard to her evidence and the medical evidence, the jury could be satisfied to the criminal standard that Mr James had not avoided Mr Sleiman and that he had not been ignorant of the fact that he had injured him. Those conclusions could have been reached without the jury having to have reached the conclusion that Mr James had deliberately driven into Mr Sleiman intending to cause serious injury (or being aware of that probability). It seems to me that it was open to the jury to conclude that, whatever view one took of the detail of what happened in the car park and of Monica Woods' evidence in general, it was clear that Mr James did not avoid Mr Sleiman and that he must have known that he had hit him and injured him.

117 In my view this ground should also be rejected.

119 I have read in draft the reasons of Maxwell P and I agree with the additional considerations he has set out concerning the significance of decisions by counsel at trial.

120 This appeal against conviction should, in my opinion, be allowed. My reasons follow.

121 A Presentment filed against the appellant in the Supreme Court contained two counts. The first was a count of intentionally causing serious injury[54] to Khadr Sleiman ('KS'); and the second, a count of recklessly causing serious injury[55] to KS. Following a trial occupying eight days, on 8 September 2011 the appellant was convicted on the count of intentionally causing serious injury. He was sentenced on 22 November 2011 to be imprisoned for eight (8) years and six (6) months, with a non-parole period of six (6) years and six (6) months.

122 On 8 November 2012 a judge of this Court granted the appellant leave to appeal against conviction on the following grounds:

1. A substantial miscarriage of justice was occasioned by the failure to leave to the jury for their consideration the alternatives of:

(a) causing injury intentionally (alternative to causing serious injury intentionally); and

(b) causing injury recklessly (alternative to causing serious injury recklessly).

2. A substantial miscarriage of justice was occasioned by:

(a) the prosecutor's failure to open or identify in his address those lies which he asserted amounted, if accepted, to implied admissions; and

(b) the trial judge's having directed the jury that the following alleged lies, as particularised, were capable of evidencing on the part of the appellant a consciousness of his own guilt.

PARTICULARS:

(i) '...I just avoided him and kept going'.

(ii) 'No, after he pulled the knife at me, no, I don't [know what happened to KS]'.

(iii) In answer to an assertion by the informant that he possessed statements attesting that the appellant had driven over the KS: 'No...If I drove straight over him I would have stopped ... I was avoiding him'.

(iv) 'If I did run over him I would have stopped straight away'.

(v) In answer to the suggestion that the KS had suffered numerous serious injury: 'What can I say to that? I'm not aware of it'.

(vi) When put to the appellant that he might have been in possession of a handgun: 'If I had a handgun, why would I avoid him?'.

(vii) 'Yeah...like I said, I didn't have a handgun ... I completely avoided him'.

1. A substantial miscarriage of justice was occasioned by a failure on the part of the trial judge to direct the jury in terms sufficient to prevent its impermissible use of evidence that the appellant was a person of bad character who might have possessed a handgun. In particular, the trial judge erred by failing adequately or properly to direct that:

(a) by the end of the trial, it formed no part of the prosecution case that the appellant had possessed a handgun; and

(b) the jury were not to speculate about the appellant's character and not to reason that he was the kind of person likely to have committed either of the offences with which he was charged.

123 On 26 April 2007 the appellant struck KS with the vehicle he was driving. The defence accepted that as a result KS suffered serious injury.

124 The prosecution case was that the appellant struck KS with his vehicle with the intention of causing him serious injury; or, alternatively, that the appellant was reckless as to causing KS serious injury. Principally, the prosecution relied upon the evidence of an eye witness, Monica Woods, and the available medical evidence.

125 It was the defence case that the appellant did not intend to cause KS serious injury by striking him with his vehicle. Alternatively, it was claimed that the appellant acted in self-defence, because he was fearful that KS wanted to try and stab him with a knife. It was put that, at the time of his interview by police, there was no evidence that the appellant knew that KS had been injured. Although the appellant intended to drive the vehicle in the way in which he did, he was under enormous stress and was conscious of avoiding the knife. The defence emphasised that the sequence of events happened very quickly. Moreover, KS had a number of prior convictions for violent offences. The defence argued that KS was a man of bad character, and had demonstrated that he had a tendency to grossly overreact under pressure and behave violently. In the lead up to him being struck his behaviour was irrational.

126 So that the issues in this appeal might be understood, it is necessary that I provide a brief (although necessarily incomplete) summary of the evidence.

127 KS gave evidence that he had never borrowed any money from the appellant. Despite this, the appellant had called him and his brothers in the days leading up to 26 April 2007, demanding the payment of a claimed $10,000 debt. They agreed to meet up on 26 April 2007 in the carpark of Highpoint Shopping Centre. The last thing that KS remembered about the meeting was a conversation between the two. KS said that the appellant 'just lined [him] up and run (sic.) [him] over'; and he felt 'every bit of oxygen leaving [his] body'. He gave evidence that he recalled the appellant was using his hand to point at him during the meeting, as though he had a gun. KS denied that he took a weapon with him to the meeting. Although a knife was found underneath him when he was moved by people at the scene while he lay injured, he did not recall whether he had a knife on him. KS said that he was 'shit scared' because he did not know what the appellant wanted or what he might do. When shown the knife found beneath him at the scene (Exhibit B), KS agreed it was his, but said that he had never used it to threaten the appellant or his brother. He agreed he had sustained puncture wounds during the incident, but did not recall how he got them.

128 Under cross-examination, KS gave evidence that the knife was in his own car for months, and he was driving his brother's car that night. He was confronted with previous evidence he had given on voir dire, in which he had said that he carried the knife from his kitchen to the car in order to arm himself before the meeting with the appellant because he was fearful. On the voir dire he had agreed with the proposition that he had not intended that day to use the knife, as he usually did, to cut fruit. When this evidence was put to him, KS said that he did not remember the Supreme Court or the evidence he gave. On further cross-examination, KS said that he always had the knife in his car, and took it with him when he went fishing for cutting fruit. He claimed that he did not remember whether he brought it with him on 26 April 2007 so as to arm himself. Under further cross-examination KS remembered that he had armed himself for the meeting because the appellant had sounded angry on the telephone beforehand. The appellant, he thought, might 'do him'. When he left his car, he picked up the knife and put it down his pants (a movement which he demonstrated to the jury). As to the meeting on 26 April 2007, he recalled conversing with the appellant through the appellant's car window. KS remembered the appellant slowing down, but said that he never completely stopped. He did not recall the appellant reversing, and could only recall a feeling like he was being 'deflated'. KS remembered that the appellant was very annoyed with him during the meeting. Significantly, he said that he had no memory of his initial statement to police in which he said that the appellant had put his vehicle into reverse and had swung the steering wheel so that the front of the vehicle hit him as it reversed; but he did not suggest that the statement was wrong. Also significantly, he said he had no memory when giving his statement of having told police that the knife was up his sleeve.

129 Monica Woods was an eyewitness to some of the events involving the appellant and KS. At the time of the events she was aged 17 years, was in Year 12 at school, and was accompanying her mother, Judith Woods, and her sister, Simone Woods. She gave evidence that on the evening of Thursday, 26 April 2007, at 'about 8 o'clock or 8.50, somewhere around that time', in the Highpoint Shopping Centre carpark, she saw a man (KS) standing opposite the driveway into the carpark. Ms Woods said she recalled the man was 'staggering', his 'arms were flailing', he 'looked quite distressed' and he was 'yelling' (although she could not hear what he was saying). She did not recall seeing anything in the man's hands. A 'white ute' then came into the driveway 'quite fast'. Ms Woods noticed that the ute 'came around the corner quite fast and recklessly'. It drove into the carpark. She said that the driving was 'reckless', there was 'no braking or anything' and the driving was 'quite fast for a shopping centre'. The man, KS, remained standing where she had last seen him. Ms Woods gave evidence that she saw the ute stop about two metres from the man, KS, and heard a car door slam. A man got out of the ute, and went around to its front. Somebody then got into the driver's side, and started 'revving back and forth about a metre back and then moving forward', four or five times. Ms Woods saw the victim standing in front of the car, appearing to try to get away, but looking as if 'he couldn't get away fast enough'. All of a sudden, she saw 'his body get flown a few metres in the air'. The ute has then 'driven over the top of, on the top of [KS] and then he's driven off'. She described the driving as 'reckless and speeding off'. Ms Woods approached KS who was on the ground, and saw that his 'legs were mangled' and he struggled to breathe. KS was lying on his stomach. Ms Woods and her mother rolled him onto his side, and noticed the knife in his back pocket. Her mother or sister moved the knife 'so no-one could hurt us'.

130 Under cross-examination, Ms Woods was questioned about the statement she initially made to police. She agreed events were fresher in her mind then. In the statement, she had said the knife was 'long' (about 30 centimetres) and 'silver', and 'looked really sharp'. She agreed that her statement that the knife was on the ground 'under him' (rather than in his pocket) was the 'true position'. Later, she agreed that she did not put in her statement that she 'saw the car run over the man when he was on the ground'. Ms Woods also agreed that when giving evidence at the committal hearing, she had said that she had seen the utility hit KS; then she could no longer see him; and she did not see the utility run over him.

131 Judith Woods is the mother of Monica Woods. She gave evidence that on 26 April 2007, 'shortly before 9 o'clock', she was in Highpoint Shopping Centre carpark with her two daughters, Monica and Simone. That day, she recalled hearing somebody 'shouting' from across the road. She turned around and saw her daughter, Monica, was not beside her; and then observed Monica 'was racing across the road chasing a creamy ute' that had 'come out of and gone over the plantation of the garden area'. A hedge appeared to have been broken and she assumed the ute must have caused this breakage. Monica was screaming 'somebody is being run over'. Ms Woods said she saw a man near the hedge where the ute would have come onto the grassy area. She recalled that the man's legs were 'mangled', with 'bones protruding', and he was 'obviously in a lot of pain'. The man's chest was 'puffy'. When the man was moved she noticed a knife 'underneath his back' which she took and put to one side on a plastic bag.

132 When cross-examined, Ms Woods agreed that the lighting in the grassy area where the utility was driving was poor, and that it was dark at the time of the incident.

133 Simone Woods is the daughter of Judith Woods and sister of Monica Woods. She gave evidence that she had been in Highpoint Shopping Centre with her mother and sister on 26 April 2007. They were all on foot walking to their car when she saw a man standing in a grassy patch of the footpath, 'yelling out some inaudible words' and 'waving his hands around', while seeming 'distressed'. She didn't see anything in his hands, but could not be sure that he did not have anything. At that point she saw a 'white ute' come into the area travelling 'fast', but she did not see where it went. She then heard her sister scream, and she saw the ute going past travelling 'fast' in the opposite direction. When she looked to the man who had been standing in the grassy area she saw that he was on the ground. She ran to him and saw his 'legs were all mangled' and that he was 'sort of going unconscious'. After she started turning the man on his side she saw a knife underneath him on the ground. Her mother picked up the knife with a plastic bag and moved it aside, and her sister called an ambulance.

134 Dr Nicola Cunningham was a forensic physician at the Victorian Institute of Forensic Medicine. She gave evidence that KS suffered significant potentially life-threatening injuries. In her view, they were the result of a direct or forceful blunt trauma from either the front or the rear of a vehicle, and were unlikely to be the result of a 'glancing blow'. She concluded there were several scenarios that could have given rise to the injury. First, a primary impact with the car and being thrown over the bonnet. Secondly, primary impact with the car and then crushing injuries from two or more further impacts while on the ground. Third, a primary impact with the car and then further injuries from being thrown to the ground. She could not confirm with any certainty whether the abdominal wounds on KS were lacerations or incisions.

135 Dr Cunningham agreed under cross-examination that the information provided to her was 'an actual allegation of stabbing' which she could have taken into account in making her assessment. She also agreed that she could not, with any confidence, choose one of the three scenarios over another since they were all possible (although when re-examined she confirmed that a proposed scenario involving a 'glancing blow' was unlikely).

136 Dr Fiona Nicholson was the emergency physician who attended to KS on 26 April 2007. She gave evidence that she received notes as KS was admitted which gave a history that he had been hit by a car or utility with a bull-bar, and there were also some concerns he had been stabbed. Dr Nicholson recalled that there were wounds to his abdomen that looked like they had been inflicted with a sharp instrument. She had written in her clinical record of that evening that KS appeared to have been 'run over', which she distinguished from a scenario where a person was hit by a car.

137 Under cross-examination Dr Nicholson said that something in the handover between her and the ambulance officers would have led her to write that KS had been 'run over', otherwise she would not have written it, since her usual terminology was to write that a person had been 'hit by a car'.

138 Dr Eileen Yap was a locum medical officer who treated KS on 26 April 2007. Her evidence included that there were lacerations to KS's left abdomen, but that she could not say whether they were caused by a stab wound.

139 Nabil Sleiman ('NS') is KS's eldest brother. NS gave evidence that about a month or two before 26 April 2007 he received a phone call from the appellant looking for KS. The appellant told NS that KS owed him $10,000. NS said he would call KS and pass on the message. On 26 April 2007, NS received a call from his nephew, Hamad Sleiman, who had received a call by someone named 'Sam', looking for KS, who asked about money (but did not say how much). NS then rang KS and asked him what it was about. KS swore that he did not owe any money. On 26 April 2007, NS received a call from a private number. He recognised the appellant's voice from the first call. The caller said that KS owed him money. NS said he would speak to KS, or that they should meet and discuss the issue. The appellant gave NS his telephone number. NS said he would call his brother himself, or have KS call the appellant. He then spoke to his brother on the telephone and told him about this conversation, promising to support him if money were owed. KS again swore that he owed no money. He said he would meet the appellant at Highpoint to sort it out. NS later heard from police that the victim was in hospital.

140 When cross-examined, NS said that his family had supported KS in the past. He said that KS enjoyed hunting, but he had never known him to carry a knife.

141 Hamad Sleiman is the nephew of KS and NS. He gave evidence that in April 2007 he began receiving telephone calls from a man who called himself Houssan Ahmed, trying to get in touch with KS.

142 Detective Acting Sergeant Dean William Maher was the police informant. He produced the record of interview, which was played to the jury.

143 Under cross-examination Detective Maher gave evidence that he had made reference to a gun in notes which he made after first speaking to KS at the hospital, when he was 'still very dazed and disorganised in his thoughts'. He noted that the victim thought a handgun had been produced. Detective Maher's notes record KS as saying that the appellant had put the car in reverse, and had swung the steering wheel so that the front of the car hit him as it reversed. According to KS he heard a loud bang and then he blacked out. As he hit the ground, KS had a memory of the appellant having his hand out the window 'making a gun figure', or holding 'an actual pistol of some sort', although he was not sure of this memory. After he left hospital, KS made a statement to Detective Maher which mentioned a gun, but this is the only statement from KS containing reference to a gun. During the record of interview, Detective Maher had asked the appellant about a handgun because it was in KS's statement. He agreed that he had said at committal that many of KS's family members were not made aware of the existence of the knife. At trial, he said this referred to the night of 26 April 2007. He gave evidence that he not interviewed KS in relation to the allegation of attempting to attack the appellant with a knife.

144 In re-examination, Detective Maher confirmed that KS's family were made aware of the existence of the knife on the first day that he spoke to him, and that the knife was never mentioned to the appellant or his family.

145 No evidence was called by the defence. Reliance was placed on the appellant's answers in his record of interview. I will say something later about pertinent aspects of the appellant's version of events as given to police.

Alternative verdicts should have been left to the jury

146 The first ground of appeal asserts that a miscarriage of justice resulted from the failure to leave to the jury possible alternative verdicts of intentionally causing injury[56] (as opposed to serious injury) and recklessly causing injury[57] (rather than serious injury). In my view there is substance in this ground.

147 It was established in Westaway[58] - and has not been doubted in the years since it was decided - that in order for there to be a conviction for intentionally causing serious injury under s 16 of the Crimes Act 1958,[59] it is necessary for a jury to be satisfied beyond reasonable doubt that the accused had an intention to cause serious injury (rather than an intention to cause mere injury, or an intention to do an act which in fact results in serious injury). Thus, on a charge of intentionally causing serious injury (where an alternative of intentionally causing injury is not left), were the jury to be satisfied beyond reasonable doubt that the accused intended to cause some injury - but not serious injury - an acquittal ought to follow. Where, however, the lesser alternative of intentionally causing injury is available, and the jury is satisfied that the accused intended to cause some injury - but are not satisfied serious injury - then the jury would be entitled to return a verdict of guilty in relation to the lesser offence.

148 Similarly, for there to be a conviction for recklessly causing serious injury in breach of s 17 of the Act,[60] the prosecution must establish that when performing the relevant act causing serious injury the accused foresaw the probability that serious injury (rather than some injury not of a serious nature) would be caused.[61] On a charge of recklessly causing serious injury (where an alternative of recklessly causing injury is not left), were the jury to be satisfied beyond reasonable doubt that the accused foresaw the probability that some injury would be caused - but not serious injury - an acquittal would be the proper verdict. If, however, the lesser alternative of recklessly causing injury is available, and the jury is satisfied that the accused foresaw the probability that some injury would be caused - but not serious injury - then a jury is be entitled to return a verdict of guilty in relation to the lesser offence.

149 The gravamen of the complaint agitated under cover of the first ground is, as I have said, that the alternatives of causing injury intentionally or recklessly provided for in s 18 of the Crimes Act 1958[62] should, on the evidence in this case, have been left to the jury as lesser alternative verdicts available on the two counts contained in the Presentment.

150 From the outset, the defence conceded that KS had actually suffered serious injury.[63] (Given the extensive nature of the injuries, it would have been unrealistic to contend otherwise.) But that is not the end of the matter. As will be seen, on the first count there was in my view a live issue in the trial as to whether the appellant intended to cause serious injury (rather than injury); and on the second count, there was a live issue as to whether the appellant foresaw the probability of serious injury (rather than injury) being caused.

151 Following the prosecutor's opening to the jury, and the defence response to the opening, the judge sought to clarify the issues in the trial with defence counsel. Counsel informed her Honour that in relation to the first count, one of the issues was 'intent'; in that, in order to convict, the jury would need to be satisfied that the appellant had 'the intention to cause serious injury'. Failing such satisfaction, the proper verdict would be not guilty. It was only if the jury were satisfied of the intention to cause serious injury that the jury would need to go on to consider the issue of self defence. (As I understand the submissions made by counsel, it was put that similar considerations would relate to the second count.)

152 Despite 'intent' being identified as an issue in the trial, it seems that the possibility - or, indeed, the desirability - of leaving the lesser alternative of intentionally causing injury on the first count of intentionally causing serious injury (or of leaving the alternative of recklessly causing injury on the second count of recklessly causing serious injury) was not specifically raised during the balance of the trial until after the jury had retired to consider their verdicts.

153 Immediately before the jury retired, the judge gave the following directions in her charge: [64]

What is in dispute in this case in relation to the principal charge of intentionally causing serious injury is [the appellant's] state of mind; that's the issue there. The prosecution, as I told (sic.), must prove beyond reasonable doubt that, at the time [the appellant] did the acts that you find caused [KS's] injury, he intended to seriously injure [KS]. So this element will not be satisfied if he only intended to injure [KS], but happened to seriously injure him. He has to have intended to seriously injure him.

It's not necessary, though, that he intended to inflict the actual injuries that [KS] received. The element will be satisfied if he intended to inflict a different kind of serious injury. The issue is, did he intend to inflict a serious injury, not necessarily the one [KS] got received.

...

[I]n relation to the elements of recklessly causing serious injury, which is the alternative charge, in relation to the first element of course, causing serious injury, it is exactly the same as to all those directions I gave you about what a 'serious injury' is.

In relation to the third element of that charge, which is that the person did the acts knowing they - or aware that they would probably cause serious injury, it doesn't have to be: probably cause 'the actual' serious injury that [KS] received, it is probably cause 'a' serious injury.

154 During deliberations the jury asked for clarification of 'the difference between intent and being aware that [the appellant's] acts would probably cause serious injury'. The judge then gave a further direction - which I need not set out - designed to clarify the position.

155 After the further direction was given, in discussion of the question with counsel - against a background where no question of leaving any lesser alternatives of causing injury simpliciter had earlier been raised by the prosecutor or defence counsel - the following exchange took place: [65]

[PROSECUTOR]: Your Honour, the other thing is, because there has now been a further direction on this particular point, and we have now spoken about - Your Honour's taken the jury directly to foreseeing the probability of serious injury and intentionally causing serious injury, it's a bit late in the day, but of course there is the alternative that the jury is always capable of finding in charges of this sort, of foreseeing, intending injury as an alternative to intending serious injury.

HER HONOUR: Oh, I don't think so, [Mr Prosecutor]. Not realistically in this case. Look at his ankle. He had bones sticking out of his ankle. I don't think anybody is going to say that's not a serious injury.

[PROSECUTOR]: No, no, I don't mean that, Your Honour, but as we have been speaking of the two intentions, the first intention is to cause the act, the second intention is to cause the serious injury. Your Honour has highlighted that he must intend to cause the serious injury. If they thought he was intending to cause injury, but didn't think he was intending to cause serious injury ...

HER HONOUR: I understand your point, but I don't - it's not been put ...

[PROSECUTOR]: The consequence.

HER HONOUR: It's not been put, _it would be adding another offenc_e - the jury has been told that it's not enough for the offence with which he's been charged to have that intent.

[PROSECUTOR]: It's just that when, yes, I know, the only reason I raise it now is listening to Your Honour going through in more detail the elements of the crime, I query whether it's not appropriate to say, well, of course if you weren't satisfied of that element you would return a verdict of intentionally causing injury.

HER HONOUR: Well, I don't think [defence counsel] will support that.

[PROSECUTOR]: I am sure he won't.

HER HONOUR: At that stage and I don't think that the case hasn't been

[PROSECUTOR]: And I don't either.

HER HONOUR: I am sorry, I didn't hear that but anyway it doesn't

[PROSECUTOR]: No, I said I'm sure he won't support it.

HER HONOUR: The case hasn't been framed in that way, I think to introduce that at this stage would deprive the accused man of the possibility of an acquittal on that basis.

156 It is plain that the prosecutor - who was very experienced - saw the possibility of leaving the lesser alternatives of intentionally causing injury and recklessly causing serious injury to the jury on the count of intentionally causing serious injury and that of recklessly causing serious injury, because 'the jury is always capable of finding in charges of this sort, of foreseeing, intending injury as an alternative to intending serious injury'. It is equally plain that defence counsel - presumably for forensic reasons - deliberately sought not to have the lesser alternatives left.

157 The appellant now claims that, despite the deliberate conduct of his counsel, there has been a substantial miscarriage of justice occasioned by the failure to leave the lesser alternatives. Unpalatable as that contention may at first blush seem, I think it must be upheld.

158 Whether an alternative offence is expressly included in an indictment or presentment depends on the application of what is sometimes referred to as the 'red pencil' test.[66] Application of the red pencil test involves the notional striking out of words from a count.[67]

159 Section 239 of the Criminal Procedure Act 2009 makes specific allowance for

alternative verdicts for what might be termed included offences.[68] It provides:

(1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.

160 In light of this Court's decision in Kane,[69] there can be no doubt that a verdict of intentionally causing injury may be an alternative verdict available on a charge of intentionally causing serious injury (and a verdict of recklessly causing injury on a count of recklessly causing serious injury); and that, in some circumstances, failure to leave the alternative might result in a miscarriage of justice. It seems to me that the principal issue in this appeal on the first ground is whether the appellant should be permitted to claim that justice miscarried by the failure to leave lesser alternatives to the jury in circumstances where his counsel - for, it must be presumed, forensic reasons - deliberately eschewed the possible lesser alternative verdicts being left. In my opinion, he should.

161 Generally speaking, an accused person is bound by the conduct of his or her trial by counsel.[70]

162 Further, and again speaking generally, the system of trial by jury proceeds on the assumption that juries will faithfully follow the directions that they are given. (I will return to this theme a little later, since counsel for the respondent, Mr Kidd SC, placed a deal of emphasis on the fact that, in returning the verdict of guilty of intentionally causing serious injury, the jury must be taken to have followed the directions that they were given. For reasons that I will later explain, this submission is incapable of saving the conviction.) As Gleeson CJ and Gummow J remarked in Gilbert:[71]

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.

163 Despite the forensic decisions of counsel, however, at common law a trial judge has an obligation to give any direction necessary in the circumstances of the particular case to avoid 'a perceptible risk of [a] miscarriage of justice'.[72] Writing extra-curially, Spigelman CJ described this as 'a clear statement of the principle of a fair trial'.[73]

164 Consonant with that notion is the obligation of a trial judge to leave to a jury any defence which is fairly raised on the evidence. Thus in Pemble, Barwick CJ said:[74]

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.[75]

165 Indeed, the cases are replete with examples of miscarriages of justice being found due to the failure to leave a viable defence, no matter the attitude of counsel. Thus in Van Den Hoek[76] a conviction for wilful murder was quashed in circumstances where a defence of provocation was open on the evidence, but was not relied upon by defence counsel. Moreover, many cases have recognised that any defence open on the evidence must be left even if there be a disavowal by defence counsel.[77] Indeed, there are cases where justice has been found to have miscarried where a defence open on the evidence was not left, even though the defence was inconsistent with the defence case at trial.

166 A stark example is provided by the decision of this Court in Kear.[78] In that case, the appellant was charged with counts of intentionally causing injury and recklessly causing injury. He was acquitted of intentionally causing injury, but was found guilty on the count of recklessly causing injury. Ultimately a miscarriage of justice was found to have occurred in circumstances where self-defence was not left to the jury, notwithstanding that the defence would have been inconsistent with the appellant's case at trial. [79]

167 In summary, the facts of Kear revealed that a Mrs McKenzie was the occupant of a flat in St Kilda. When the appellant tried to trespass into the flat, a Mr Depke, who was present at the flat, endeavoured to block his entry. Mr Depke claimed that the appellant struck him with his fist to the face, causing him injury. The appellant denied striking Depke, and contended that Depke had suffered the injury when hit in the face by a flowerpot hurled by Mrs McKenzie. He (the appellant) had 'ducked' the flowerpot aimed at him, and it had struck Depke instead. It was the flung flowerpot which caused Depke's injury. No question of self-defence was raised by defence counsel - it would have been inconsistent with his case at trial - and self-defence was not left to the jury.

Counsel for the applicant at the trial (who is not the counsel who appeared on this application) did not seek to raise self-defence, for what might be thought to be good tactical reasons, the striking of any blow by the applicant being inconsistent with his case. So it was counsel for the Crown who raised it with the judge shortly before addresses began. At first counsel for the applicant contended that the judge should direct the jury on the issue of self-defence but after some discussion, in which the learned trial judge asserted that Depke would have been entitled to remove an unlawful trespasser from Mrs. McKenzie's flat, counsel appeared to agree that the issue could not fairly be raised. There was no formal ruling but, whether at trial or upon appeal, the court is not absolved from requiring an issue of self-defence or any other issue to be put to the jury notwithstanding counsel's refusal or failure to raise the issue: cf. Pemble v R [1971] HCA 20; (1971) 124 CLR 107.

In my opinion, whether one looks to the applicant's case or to the case presented by the prosecution, there was sufficient evidence to require the judge to charge the jury on the issue of self-defence. I have already observed that it is of no consequence that self-defence did not form part of the applicant's case at trial, especially where, as here, there would have been good tactical reason for the applicant's counsel not to have wished to make direct submissions to the jury on the issue. Of course, he may have done so if the judge had required the issue to be addressed but unfortunately he chose to fall in with the judge's analysis which depended upon the applicant's alleged trespass. Again I would not hold the applicant to such a concession by his counsel where, as here, there were facts which could, if accepted, have led the jury to conclude (or to be left in a state of reasonable doubt) that the applicant reasonably believed that it was necessary for him to do what he did in order to defend himself.

Now it may be suggested that what the applicant now asks the court to consider, and would have asked the jury likewise to consider, was a version based essentially on speculation since not only did the applicant deny that he had struck the blow but necessarily also expressed no belief as to whether what he had done was necessary in order to defend himself from Depke's attacks. Although such logic may appear attractive and would undoubtedly simplify criminal trials, it does not appear to be consistent with accepted principles as to the need to charge juries on facts and circumstances which might lead a jury to have reasonable doubt as to an accused's guilt. It is clear, particularly from a reported authority dealing with the possible defence of provocation, that it is not necessary that direct evidence be given of the accused's belief as to circumstances giving rise to a defence for a conclusion to be reached that the evidence is such as to require the jury to be charged in relation to a defence of that kind: cf. Van den Hoek v R [1986] HCA 76; (1986) 161 CLR 158 and Shea v R (1988) 33 A Crim R 394 (Vic. Court of Criminal Appeal). Moreover it seems to be accepted that the need to charge a jury on a particular defence may still exist notwithstanding 'an express disavowal of a defence': Shea at 398. This conclusion has been reached on numbers of occasions in relation to provocation, largely because evidence by an accused of loss of self-control might be seen by a jury as inconsistent with a belief as to the need to act in self-defence. The choice will naturally be made by an accused in those cases in favour of a version which supports self-defence, as that provides a complete defence, and so there are many more cases of this kind reported in which there has been an express disavowal of, or lack of direct evidence as to, the defence of provocation which can only result in a verdict for the lesser offence of manslaughter. In fact no cases were cited to the court in which a failure to raise self-defence was made the subject of a successful application on appeal but, as the cases just cited and Pemble's case have made clear, an issue may be held to arise if facts may be inferred from which the possible claim to a defence have been made out.

171 Phillip JA described the contentions of the parties as follows:[83]

As already indicated the Crown relied upon the fact the applicant could scarcely have raised the question of self-defence consistently with his version of events, contending that therefore there was no need for a direction on the question of self defence. But applicant's counsel pointed to those cases which show that a trial judge may be duty-bound to direct the jury on a possible answer to the charge though it is not raised expressly by the accused and perhaps even if disavowed by his counsel (for example Pemble v R [1971] HCA 20; (1971) 124 CLR 107; Van den Hoek v R [1986] HCA 76; (1986) 161 CLR 158; Shea v R. (1988) A Crim R 394). He contended that the duty was the more important (not less) where, as here, there may be a sound tactical reason for the failure of defence counsel himself to address the matter directly: see and compare Director of Public Prosecutions v Walker [1974] 1 WLR 1090 at 1094 (J.C.). Nevertheless this cannot be a charter for unbridled speculation (pace Rich J. in Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39 at 49, to which Tadgell JA directed my attention). A trial judge is surely constrained to direct the jury as to some possible answer to the charge which has not been expressly relied upon in addresses only if that answer is reasonably open on the evidence. And whether that was so here is what now divides the parties on this application.

172 In also reaching the conclusion that the conviction could not stand, Phillip JA expressed the view:[84]

... There were perhaps many reasons why the jury could properly have rejected the applicant's version of events altogether, but that was a matter for them and in giving consideration to the evidence overall they should, I think, have been directed to the possibility that, if they found that the applicant did strike Depke, the blow might have been struck in self-defence. In my opinion, that possibility was raised on the evidence and so should have been the subject of appropriate direction.

I confess to having reached this conclusion with some reluctance in view of the way in which the applicant's defence was conducted at the trial. The question of self-defence was discussed by the trial judge with counsel before the charge and on one view applicant's counsel (who was not counsel before us) accepted that a direction on self-defence was not required. At the conclusion of the discussion, his Honour expressed the view that probably the defence did not arise on the evidence that the applicant was being lawfully removed from the premises when Depke was struck, and counsel replied in terms which, on one view at least, signalled his agreement that no direction was required on self-defence. But the exchange is perhaps equivocal and it may not matter if in any event if it remained the duty of the trial judge to direct the jury on the question: Shea.

A more troubling aspect is the extent of the trial judge's obligation to direct the jury on a possible answer to the charge when that answer is in direct conflict with what the defence itself puts forward, but again the difficulty appears to have been resolved by Shea. Here, the question of self-defence could arise only if the jury first rejected the applicant's evidence that he did not himself cause the injury to Depke; and if the jury rejected that portion of his evidence why should they not reject the rest of it? Moreover, prosecuting counsel told the judge that although she had been expecting that the defence might be raised in the course of cross-examination of the Crown witnesses, nothing like that had emerged and so, wanting any other indication that self-defence was relied upon, she had herself not addressed the possibilities in cross-examining the applicant and his witnesses_. It seems then unfair to the Crown that complaint should now be made that the trial miscarried for want of a direction on what was never raised, or at all events not squarely raised despite discussion on the point. Yet in_ Shea the trial judge, having directed on self-defence as relied upon by the accused, was held bound to have directed also on provocation despite disavowal by the accused of that line and evidence by him to the contrary.

173 The principle that can be drawn from Pemble and the cases following it is, in my opinion, that notwithstanding the forensic decisions and tactics of defence counsel, and notwithstanding that it may be inconsistent with the accused's case at trial, if on the evidence a defence is properly open (such defence being either a pathway to conviction for a lesser offence or for acquittal), the trial judge is bound to leave it to the jury.

174 An allied principle that finds recognition in the authorities is that defence counsel cannot concede a mater of law to the detriment of his or her client. Thus in Stokes & Difford, a case where defence counsel had apparently sought to avoid a direction to the jury on intoxication, Hunt J observed:[85]

The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble [1971] HCA 20; (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: Lawson and Forsythe [1986] VicRp 53; [1986] VR 515 at 548; [1986] VicRp 53; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ, 17 July 1990) at pp 1-2.

175 Of course, what is complained of in this case is not so much the failure to give a direction, or the failure to leave a defence which was open on the evidence, but the failure to leave an alternative verdict which might have been a pathway to conviction for a lesser offence. I can see little difference in logic or principle, however, between the two situations. A trial judge must always be astute to secure for the accused a fair trial according to law,[86] no matter the forensic decisions of counsel. Trial judges are not relieved of the responsibility to ensure that a trial is a proper one simply because counsel chooses to run the trial in a particular way, or fails (whether advertently or inadvertently) to seek a direction which justice demands in order to ensure that a trial is conducted according to law.

176 It is against that general background that I turn to consider the distinct submissions made on the first ground.

177 As I understood the primary way in which counsel for the respondent, Mr Kidd SC, who appeared with Mr Barr, sought to resist the first ground, it was contended that, on the evidence, there was no realistic lesser alternative open on the evidence. That being so, the trial had not miscarried as a result of failure to leave intentionally causing injury as an alternative to intentionally causing serious injury. It is fair to say, I think, that this submission was centrally underpinned by two aspects. First, an analysis of the evidence (so it was contended) meant that the jury could not have failed to have reached the conclusion that the appellant intended to cause (or was reckless as to the causation of) serious injury. Secondly, the fact that the jury returned a verdict of guilty on the count of intentionally causing serious injury meant that the jury, following the judge's directions, must have been satisfied that the appellant intended to cause serious injury.

178 I doubt that, by attempting to capture the essence of counsel's arguments, I will do justice to their thorough, competent and earnest presentation. However, I understood the respondent's counsel to be submitting in support of the first aspect that the Court should conclude that no lesser alternative was open based on the eyewitness testimony of Monica Woods, and the evidence of the forensic physician, Dr Nicola Cunningham. The effect of Monica Woods' evidence was that KS was thrown through the air and then run over. No jury could have thought that the driver of a car in those circumstances intended anything other than to cause serious injury. Allied to that evidence, Dr Cunningham's opinions were important. In particular, Dr Cunningham gave evidence that KS's injuries 'suggested that they were the result of direct and forceful blunt trauma and in vehicular trauma this would be either the front or the rear of the vehicle impacting with the subject with considerable force in that direction of travel and one of the opinions was that the proposed scenario of the glancing blow resulting in these injuries would be highly unlikely'. Alone or in combination, the evidence of these witnesses could only have led a jury to conclude that serious injury was intended.

179 The simple answer to that aspect of the submission is, in my opinion, that although of course the jury would not be entitled capriciously to reject the evidence, neither were they bound wholly to accept it. Monica Woods was cross-examined with a view to undermining the accuracy and reliability of her observations; and it is, I think, clear, that she did not include in her original statement to the police some of the more graphic aspects of her later account at trial. Plainly it would have been open to the jury to have had a reasonable doubt about those aspects, and the accuracy of her evidence more widely. Similarly, although again the jury would not be entitled capriciously to reject the evidence of opinion from Dr Cunningham, the jury were not bound to accept it either.

180 In my opinion, the jury would have been entitled to come to the conclusion that they could not reject, on the criminal standard, the thesis that KS was struck only a glancing blow; or, perhaps more importantly, that the appellant's appreciation was that he had only struck a blow less severe than what appears to have been the reality. The jury would, I think, legitimately have been entitled to conclude that KS - despite his claimed lack of recall - had accurately described to the police in his initial version of events the manner in which the vehicle struck him. In my opinion, based on his answers in cross-examination, it was open to the jury to accept that KS had first said to the police that the appellant 'had put the car into reverse and swung the steering wheel so that the front of his car hit me as it reversed'; and that, from his answers at trial, he accepted that what he told the police was an accurate version of events. At the least, based on this evidence, the jury would have been entitled to have a reasonable doubt as to Monica Woods' version of events, and as to the opinions of Dr Cunningham.

181 That being so, I think that it would have been open to the jury to find that the appellant did not intend to cause serious injury (or that he foresaw the probability of serious injury being caused); or, at least, to have entertained a reasonable doubt about it. Hence I think that verdicts on the lesser alternatives properly would have been open to the jury had they been left. In my view, therefore, justice has miscarried from the lesser alternatives being withheld from the jury, unless it can be said that the conduct of the appellant's counsel disentitles him from success - either because defence counsel's conduct leads to the view that there has been no miscarriage of justice, or, perhaps more importantly, no substantial miscarriage of justice.[87] Resolution of that issue will require examination of the authorities which bear on the necessity to leave alternative verdicts, and on what may be regarded as a 'substantial miscarriage of justice' in light of the High Court's decision in Baini.[88]

182 Any review of this area must commence with the High Court's decision in Gilbert,[89] and its later decision in Gillard.[90] Both cases involved an examination of the circumstances in which on a charge of murder the alternative verdict of manslaughter should be left to the jury. Before turning to these cases, however, it is necessary to say something of those cases which, I think, are the source of the notions permeating the respondent's primary resistance to the first ground.

183 Ross[91] concerned what has been called the Gun Alley Murder.[92] The body of a twelve year old girl, who had been raped and strangled, was found in an alley off Little Collins Street, Melbourne. She had earlier been in a wine shop run by the accused. An important plank in the prosecution's case included a challenged confessional statement. Although some of the contents of the confessional statement might have founded a verdict of manslaughter, defence counsel, for forensic reasons, did not seek to have manslaughter left to the jury. The jury returned a guilty verdict on the murder count. In the High Court, Knox CJ, Gavan Duffy and Starke JJ held:[93]

[W]e think it is clear that, if on a trial the judge correctly instructs the jury on the essential ingredients of the crime charged and fully and fairly puts to the jury the defence set up by the prisoner, a verdict of guilty amounts to a finding by the jury of every essential element of that crime, and cannot be disturbed by a suggestion that the jury on the evidence might have found him guilty of a lesser offence if the judge had informed them that they were at liberty to do so.

Neither the prisoner nor his counsel ever suggested the alternative of manslaughter to the Court. It might have been injurious to the chances of the prisoner to suggest it in the presence of the jury, as it might seem to be inconsistent with Ross's absolute denial of any talk with the girl; but when the jury retired the judge could have been asked by counsel to remind the jury of the alternative, of the Court's own accord. The whole matter was discussed between prisoner's counsel, and they decided that it was better not to suggest manslaughter. Now the complaint is that the Court did not do that which prisoner's counsel did not wish to be done. I may say, in passing, that there is no law to the effect that the judge must always direct the jury that they can find a lesser offence ... One can easily conceive of cases in which such a direction would be essential; but the present is not such a case.

184 The propriety of leaving manslaughter to a jury on a charge of murder was again considered by the High Court in Mraz.[95] The accused was charged with the murder of a woman whom he raped, and who afterwards died of shock. At trial, the judge directed the jury that they might return a verdict of manslaughter if they found that the accused committed the rape and caused the death of the victim in the commission of that offence. It was common ground that the trial judge's direction was given in error, in that he had given the jury a definition of rape which at best was confusing, and at worst, simply wrong. The jury acquitted of murder, but convicted of manslaughter. Fullagar J (Williams, Webb and Taylor JJ giving reasons 'substantially the same as those given by Fullagar J'[96]) said:[97]

[T]he whole tendency of the erroneous part of the charge was to create a fundamental confusion in the minds of the jury as to what constitutes the crime of rape, and one feels a very real doubt whether the jury, if it had been correctly directed on the subject, would have found that rape had been committed.

It is equally true that a jury not confused by the erroneous matter might have acquitted the appellant on the only charge in the presentment. In many murder trials the question whether the possibility of a verdict of manslaughter should be raised presents a serious problem to counsel for the accused. Probably in most cases it is regarded as disadvantageous to the accused to suggest the possibility of a verdict of manslaughter. A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them. The position is well illustrated by Ross v The King ... In the present case the jury may well have hesitated long before convicting the appellant of murder, and it is very far indeed from clear that the misdirection did not operate to his grave disadvantage. In such circumstances it is impossible to say that no substantial miscarriage of justice has occurred.

185 In Evans,[99] both accused, Evans and Lewis, were convicted of the murder of a taxi driver. The trial judge left the case against both as 'murder or nothing'. Manslaughter specifically was not left to the jury. Lewis contended that in his case a possible verdict of manslaughter should have been left. The Full Court[100] dismissed the appeal. In expressed reliance upon the High Court's decision in Ross, O'Bryan and Little JJ said:[101]

We are of the opinion that we are bound by what was said in Ross's Case but we would add with great respect that, in our opinion, the doctrine there pronounced is both good law and good sense. It obviates the granting of new trials in cases where the interests of justice do not require them, but merely because on a painstaking scrutiny of the evidence it appears that some other and less grave crime might have been committed which nobody thought of or adverted to at the trial. This does not mean that cases may not arise in which a proper trial would not be had if a direction in relation to the lesser offence were not given, but this is by no means always the case. ...

186 O'Bryan and Little JJ later set out the following proposition:[102]

If the trial judge correctly instructs the jury on the essential elements of the crime of which the appellant is convicted and fully and fairly puts to the jury the defence set up by the appellant the verdict of guilty amounts to a finding by the jury of every essential element of the crime and if those findings negate a verdict of guilty of a lesser offence then the verdict cannot be disturbed by a suggestion that the jury might have found him guilty of that lesser offence if the judge had informed them they were at liberty to do so.

This kind of thinking seems to me to be the basis of the respondent's contention that there can be no miscarriage of justice in failing to leave any lesser alternative, since the jury convicted on the more serious count. Following the High Court's decisions in Gilbert[103] and Gillard,[104] however, in my opinion this thinking has been exposed as unsound. It follows that, in so far as it is the foundation of part of the respondent's submissions on the first ground of appeal, that aspect cannot be accepted.

187 Gilbert involved a charge of murder. The trial judge had instructed the jury that a verdict of manslaughter was not open. The High Court held that manslaughter should have been left,[105] since a jury might have failed of the state of satisfaction necessary to found a conviction for murder. Gleeson CJ and Gummow J disapproved of that part of Evans earlier referred to (and the cases upon which it was based).[106] Significantly, Gleeson CJ and Gummow J thought the proposition from Evans above[107] - if understood literally and without qualification - to be inconsistent with later decision of the High Court in Pemble.[108]

188 The House of Lords referred to Gilbert with apparent approval in Coutts.[109] Lord Bingham, citing Pemble, said that, 'In Australia, as here, the trial judge's duty to direct the jury on alternative verdicts which there is evidence to support is not removed by the decisions of trial counsel';[110] and he later went on to say:[111]

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.

189 Gillard also involved a charge of murder, where manslaughter had not been left to the jury as an alternative. It had not been left because the appellant's legal representatives resisted an attempt by the prosecution to persuade the trial judge to instruct the jury that verdicts of manslaughter were available, and convinced the judge to leave the case to the jury as 'murder and nothing' (that choice presenting certain forensic advantages to the appellant). The High Court[112] held that, on the facts of that case, a viable case of manslaughter existed, and thus it should have been left to the jury notwithstanding the submissions of the appellant's lawyers at trial to the contrary.[113]

190 Whether Gilbert should be confined to cases of murder, or has wider application, has been considered by this Court on a number of occasions. In Doan[114] - which was decided before Gillard - the appellant had been convicted of trafficking in not less than a commercial quantity of heroin. On an application for leave to appeal it was contended that an alternative verdict of possession should have been left to the jury, the leaving of that alternative not having been asked for by counsel. In rejecting the ground of appeal which claimed that the alternative should have been left, Charles JA queried - without, as I understand it, finally deciding - whether the reasoning in Gilbert had broader application. He remarked:[115]

Gilbert was a most unusual case, in that the trial judge had, understandably in the circumstances, explicitly but erroneously directed the jury that a manslaughter verdict was not open to them unless one or both of the primary offenders was convicted of manslaughter. Although this state of affairs could plainly not be called unique, it is at least a possibility that the decision in Gilbert should be regarded as confined to the unusual circumstances of the case then before the High Court - that is, a murder trial in which the trial judge has wrongly removed from the jury's deliberations the opportunity of considering a verdict of manslaughter. An alternative possibility is that the ratio of the case is confined to trials for murder in circumstances upon which a jury properly instructed might bring in a verdict of manslaughter. In the joint judgment of Gleeson CJ and Gummow J all the cases cited in their Honours' reasons appear confined to the murder/manslaughter dichotomy. Furthermore the particular significance of the alternative verdict of manslaughter in murder cases and the tactical basis for defence counsel to prefer to conduct a homicide case on a 'murder-or-nothing' basis was explicitly referred to in their Honours' reasons. The judgment of Callinan J, however, is not so confined, relying on cases other than those involving the murder/manslaughter alternative and his Honour also refers to the availability of a verdict for a 'lesser offence' in a context plainly wider than the alternative of murder/manslaughter.

There is, of course, another possibility that, at least where the accused is represented, the obligation of the trial judge to charge a jury as to a lesser offence may depend upon whether the prosecutor or defence counsel mentions that possibility and requests the judge to charge the jury in relation to the offence in cases where the judge has not decided to do so in any event. Such a possibility is not mentioned in the cases previously referred to, save, on occasions, to assert that the judge's obligation to direct as to lesser offences cannot depend upon the course taken by counsel. That this is so in relation to the murder/manslaughter alternative is well known and well understood. ...

191 The issue of whether Gilbert had application beyond cases of murder and manslaughter was squarely raised in Kane.[117] As in the present case, count 1 in Kane was a charge of intentionally causing serious injury, and count 2 recklessly causing serious injury. The jury convicted on count 1. On appeal, it was argued that a miscarriage of justice flowed from the failure to leave the lesser alternatives on intentionally causing injury and recklessly causing injury. Ormiston JA in dissent, would have confined the principle in Gilbert to cases of murder and manslaughter; but Callaway JA, with whom Batt JA agreed, concluded that Gilbert was of wider application. With respect, I think that the view expressed by Callaway JA as to the application of Gilbert is to be preferred.

192 Callaway JA noted[118] that in Maxwell[119] the House of Lords had 'recognised that there were cases other than cases of homicide where a judge would be obliged to leave a lesser alternative to the jury in order to guard against two dangers, one being that, faced with a false choice between conviction or acquittal of the main offence and nothing else they would acquit the accused altogether when he should have been convicted of the alternative offence and the other being that, faced with the same false choice, they would convict the accused of the more serious offence rather than let him get off scot-free for what was, on any view, serious misconduct'. He later said of the case at hand:[120]

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

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

193 Given the reasons of Ormiston JA, Callaway JA added a postscript to his reasons for judgment, part of which reads:[121]

... I do not consider that every alternative verdict must be left to a jury. The answer to the question whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of counsel. The test is what justice requires in the particular case. In this case the issue is whether the two alternatives of intentionally causing injury and recklessly causing injury (not other offences) should have been left in the case of the applicant, the evidence against whom was significantly different from that against the alleged co-offenders.

194 By the time the issue again raised its head in this Court, Gillard had been decided. Thus in Saad,[122] the Court was again called on to decide whether Gilbert had broad application beyond charges of murder, but with the added benefit of the High Court's views in the later case. The appellant, convicted of murder, argued that a lesser alternative of assisting the offender[123] - which is not an included offence in the relevant sense - should have been left to the jury. Nettle JA, with whom Chernov and Harper JJA agreed, reviewed the state of the authorities and observed:[124]

This court has also twice before considered the question of whether the principle in Gilbert and Gillard has application beyond a case in which the offence which is charged is murder and the error of the trial judge is to fail to leave to the jury an available alternative case of manslaughter. In the first case it was doubted that the principle went any wider that the murder/manslaughter dichotomy and in the second it was held it does not. In R v Doan, Charles, J.A. undertook a review of some of the authorities in other states and concluded that it was doubtful that the principle extends beyond the murder/manslaughter dichotomy. Vincent, J.A. agreed. In R v Kane, Ormiston, J.A. reviewed a large number of authorities and concluded that, except in cases where murder has been charged and manslaughter should be left to the jury, there is no basis in principle for insisting on alternative charges being left to the jury in every case. It depends, his Honour stated, on all the circumstances and in particular on whether the accused's counsel asks that the alternative charge be left to the jury or otherwise raises the issue. Callaway, J.A., also considered a number of the authorities and concluded that it is not every alternative verdict that must be left to the jury and that the answer to whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel.

Admittedly, this case is different to Doan and Kane in that the offence charged here was murder and that was not so in Doan or Kane. But there are decisions of the Victorian Court of Criminal Appeal which imply that the approach in cases of homicide should be as Ormiston, J.A. stated in Kane. Of course they were decided before Gilbert and Gillard, and they must be read with some care. But at the level of principle they are instructive. ...

195 Having discussed further authority, Nettle JA said:[125]

Whatever be the reach of the principle identified in Gilbert, none of the judgements in that case says that it goes further than requiring a judge to leave to the jury lesser alternative offences that are 'included offences' in the Canadian sense and, although the offence of being an accessory after the fact, or as it now is in Victoria, the offence of assist offender contrary to s 325, is one of which a jury may convict an accused who stands charged with murder, it is not an included offence in the sense that it is comprised of any of the acts which comprise the offence of murder.

It follows I think that, even where the offence charged is one of murder, the question of whether the alternative charge of assist offender should be left to the jury is to be decided according to the general principle identified in R v Kane, of what justice requires in the particular circumstances of the case, and that in turn depends on all the circumstances of the case, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of the accused. That approach accords with the practice in England.

The authorities identify a number of factors as bearing on the issue of whether a lesser offence should be left to the jury as a possible alternative verdict ... Consequently, where the offence charged is grave and the alternative offence is trifling it may be better not to distract the jury by forcing them to consider something which is remote from the real point of the case. On the other hand, where the evidence is such that the accused ought at least to be convicted of the alternative offence, but the jury may be hesitant to convict the accused of the offence charged, the alternative should be left. Fairness to the accused may also require that the lesser alternative offence be left to the jury where there is a real chance that the jury would prefer to convict the accused of the lesser charge if it were an available option. Above all, however, one must keep in mind the course of the trial. Other things being equal the effect of forensic judgment on the part of counsel is likely to be one of the most important considerations for, notably, that was the basis on which Callinan, J distinguished Ross in Gilbert. As his Honour put it, counsel in Ross had made an informed decision to abstain from seeking an alternative verdict of manslaughter. It has since been held in Gillard that counsel's calculated abstention from seeking that manslaughter be left as an alternative to murder is no longer a basis for the judge not to leave it as an alternative verdict. But for the reasons already given, I take Gilbert and Gillard to be confined to cases in which the offence charged is murder and the ground of appeal is the judge's failure to leave to the jury an available alternative verdict of manslaughter. As I see it, calculated abstention from raising any other possible alternative verdict remains a very relevant consideration in other cases.

196 It seems clear from the reasons of Nettle JA that he would confine Gilbert and Gillard to cases of murder, where the alternative of manslaughter is not left. In cases other than murder/manslaughter, Nettle JA would regard the conduct of counsel - particularly 'calculated abstention' from raising possible alternatives - as a very relevant consideration. I cannot agree. As I will endeavour to explain - subject, perhaps, to two qualifications - if a verdict for a lesser offence realistically is open on the evidence in the case, then a trial judge is bound to leave it, no matter the attitude of counsel or the conduct of the case.

197 Recently, the issue of alternative verdicts in a case of non-murder arose in this Court in Christy,[126] although the Court was able to dispose of the appeal in that case without resolving the issue.[127]

198 More recently still, the necessity of leaving lesser alternative verdicts in cases involving charges other than murder arose in Nous.[128] In that case the applicant had been convicted of rape. He complained on appeal that his trial miscarried because

the alternative of indecent assault had not been left to the jury.[129] Although counsel had cross-examined the complainant generally as to reliability, the defence was a denial that the relevant incident had taken place. It was submitted that the evidence of penetration was equivocal, raising the need for the alternative verdict to be left. The Court (Neave and Redlich JJA, and Lasry AJA) rejected the contention that justice had miscarried from the failure to leave the alternative, holding that the evidence was not such as to raise the alternative offence as a real possibility, it not giving rise to any real question as to whether there had been penetration. Further, defence counsel did not request that the lesser alternative be left to the jury.[130]

199 Having said that it is 'necessary to distinguish between those cases involving murder/manslaughter and other types of offences (such as rape/indecent assault as in the present case)',[131] the Court in Nous made the following observations:[132]

The following factors bear upon whether, in the interests of justice, in cases other than murder/manslaughter, a lesser alternative offence should be left to the jury:

(1) the presence of evidence which raises the alternative offence as a real and not remote or artificial possibility;

(2) reliance by a party upon such evidence in the course of the trial as evidence which is inconsistent with proof of one or more of the elements of the more serious offence;

(3) a real chance that the jury may convict the accused of the lesser offence; and

(4) a request by a party that the lesser alternative offence be left to the jury.

While the last of these factors may inform the trial judge's analysis of the real issues, the absence of such a request will rarely be decisive to the trial judge's decision. The responsibility for deciding what are the real issues to be left to the jury resides with the trial judge and not with counsel. Where the trial judge is of the opinion that there is a real issue as to whether the prosecution has established an element of the more serious offence and, after discussion with counsel, considers that there is a real possibility that the jury could find the accused guilty of the lesser alternative offence, that offence should be left to the jury.

A failure by counsel at trial to request that the alternative lesser offence be left to the jury will generally assume great significance on an appeal if complaint is made for the first time that the lesser alternative offence was not left to the jury. Counsel's duty was to assist the trial judge in discharging the obligation to give the jury such instructions as to the law as are necessary to enable the jury to decide the issues in the case. The forensic decision to leave the jury with the stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence because the opportunity of a conviction on the lesser offence was not left to the jury ...

200 As will become clear, I agree with the thrust of the first, second and third of the enumerated propositions above, but not the fourth. Even paying due regard to the development of the law concerning the leaving of the alternative of manslaughter on a charge of murder, I can see no reason in logic or principle why the reasoning in Gilbert and Gillard should not apply more widely to charges other than murder. If the evidence raises an alternative verdict as a realistic possibility, so that the jury might convict on it in preference to a more serious principal offence, the interests of justice- subject to qualifications I will discuss - generally dictate that an alternative verdict should be left. In the same way that an accused person cannot be disentitled, by the conduct of his or her counsel, from having a defence left which might result in acquittal or conviction for a lesser offence, an accused person cannot become disentitled from possible conviction for a lesser alternative by the tactics of counsel.

201 Intermediate appellate Courts in other Australian jurisdictions have also recently grappled with this issue. I think that some of the reasoning to be drawn from those cases has much to commend it.

202 In R v King[133] the appellant was convicted of armed robbery. It was claimed that he had committed an armed robbery of a shop assistant in a news agency while armed with a screw driver with which he threatened her. The claim that the appellant had a screw driver, or threatened the shop assistant, was the subject of challenge, including in the appellant's sworn evidence in which he asserted that he was not armed, did not offer any threats to the shop assistant and simply had committed a unarmed 'snatch and grab'. An alternative verdict of robbery was not left to the jury. The NSW Court of Criminal Appeal (Grove J and Smart AJ; Davidson AJ dissenting) held that a miscarriage of justice had resulted from the alternative verdict of robbery not having been left. Grove J considered that the High Court's decisions in Gilbert and Gillard 'clearly establish that where there is on the evidence a viable case of an available verdict of guilty of a lesser offence than that charged, failure to give an appropriate direction can amount to an error of law'.[134] Smart AJ agreed that '[t]he 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'.[135] However, the principle does not operate so as to dictate that a lesser alternative be left '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'; or 'where the principal offence is grave and the alternative alleged is comparatively trifling and remote from the real point of the case'.[136] Of significance, Smart AJ thought that a trial judge should leave a 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'; and that '[t]his transcends adversarial and tactical considerations'.[137] The state of the evidence is important. Smart AJ emphasised that the lesser alternative should not be left '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'.[138]

203 A similar case was Tilley,[139] in which the appellant had been convicted of the offence of aggravated threatening life contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA). The aggravating feature alleged was that the appellant had threatened to use an offensive weapon, a Stanley knife, when he threatened to kill the victim. It was alleged by the prosecution at trial that, following a motor vehicle collision, the appellant left his vehicle and threatened to kill the other driver while producing the knife and gesturing with it against his own throat. At trial the appellant admitted the collision, but denied the threat to kill and possession of a knife, claiming that he was holding a mobile telephone and keys. By a majority, the jury convicted. Neither counsel at trial submitted that the basic offence of threat to kill should be left to the jury, and the judge did not direct on it. The Court (Bleby, Gray and Layton JJ) held that the trial had miscarried as a result of the failure to leave the lesser alternative offence. Following an extensive review of authority, the Court said:[140]

In short, at common law ... 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. Thirdly, the putting of an alternative verdict to the jury must not result in a miscarriage of justice.

204 The NSW Court of Criminal Appeal revisited the issue of alternative verdicts in Blackwell,[141] although the difficulty in that case was not so much that no lesser alternative was left, but rather that an incorrect statutory alternative was. It was held (Beazley JA and James J; Hall J dissenting) that the leaving of the wrong alternative was a denial of procedural fairness, resulting in a miscarriage of justice.[142] However, although the application of Gilbert and Gillard to cases on non-murder/manslaughter was discussed, as I understand the judgments of the majority, it was not an issue that was finally determined.[143]

205 From this review of authority there appears to be lingering doubt as to the circumstances in which a lesser alternative verdict must be left in cases of non-murder where on the evidence manslaughter is a viable alternative. Since the issue is distinctly presented for determination in this case by the first ground, I think that it is necessary that I should express a concluded view. In my opinion, in cases of non-murder, if a lesser alternative verdict is realistically open[144] on the evidence, then - no matter the forensic decisions of counsel - a trial judge is required to leave the lesser alternative, subject to two qualifications.

206 In my opinion the confluence of several aspects of general principle point strongly to that conclusion. The general matters of principle include the following:

(1) Every person charged with a crime has the right to a fair trial (or, at least, a right not to be tried unfairly) according to law.

(2) As a central feature of a fair trial, Pemble requires that the jury receive adequate instruction as to the applicable law, and on the possible use of the relevant facts on any aspect upon which the jury could, in the particular circumstances of the case upon the material before them, find or base a verdict in whole or in part.

(3) Another aspect of a fair trial according to law is that a trial judge must give any direction necessary in the circumstances of the case to avoid a perceptible risk of a miscarriage of justice.

(4) Although an accused person generally is bound by the conduct of his or her trial by counsel, counsel cannot wrongly concede a matter of law to the detriment of his or her client.

(5) Moreover, a trial judge must leave to a jury any defence fairly open on the evidence - whether the defence might result in complete acquittal or conviction for a lesser offence - no matter disavowal of the defence by counsel, and no matter that it might be inconsistent with the manner in which the trial has been conducted.

207 Beyond those matters of general principle, intermediate appellate courts in other states - in particular, in King and Tilley - have applied the principles derived from Gilbert and Gillard more widely than to cases of murder. Additionally, on one view, s 239 of the Criminal Procedure Act 2009 gives the jury an unqualified right to find an accused guilty of a lesser offence if 'the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court'. Presumably the jury is only capable of exercising that right if properly instructed by the trial judge. Thus, as earlier observed, in my opinion if a lesser alternative verdict realistically is open on the evidence, a trial judge is required to leave the lesser alternative, subject to two qualifications. A lesser alternative verdict need not be left, first, where there is no dispute that the full offence charged was committed, the only controversy being whether the accused was the one who committed it; and secondly, where the principal offence is serious, and the alternative offence (though theoretically open) is trivial and distant from the real issues in the case.[145]

208 From my perspective, the only matter of real difficulty is whether counsel can give away the right that his or her client might otherwise enjoy to have a lesser alternative verdict left to the jury. Based on general principle, which I have attempted to distil, I think counsel is incapable of doing so. (This assumes, of course, that the alternative is realistically open, and is subject to the qualifications I have adverted to.)

209 As I have earlier attempted to demonstrate, I think it plain that a verdict on a lesser alternative was realistically open on the evidence in this case (and the qualifications militating against leaving a lesser alternative were not present). Lesser alternatives not having been left, it follows that there has been a miscarriage of justice. The central question in this case, therefore, is whether there has been a 'substantial miscarriage of justice'.

210 For almost a century, until the enactment of the Criminal Procedure Act 2009, the laws governing criminal appeals in Victoria, in conformity with other Australian States and Territories, were based on the common form criminal appeal statutes.[146] A core feature of the common form statutes is the proviso which, following the High Court's decision in Weiss,[147] proved to be a source of some difficulty for appellate courts. The Criminal Procedure Act introduced a new regime. Section 274 of the Act gives a right to appeal, by leave, against conviction. The manner in which the appeal is to be determined is governed by s 276, which provides:

276. Determination of appeal against conviction

(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that -

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.[148]

211 The effect of s 276 is that the Court must allow the appeal against conviction if the appellant satisfies the Court that 'as a result of an error or an irregularity in, or in relation to, the trial', or 'for any other reason', there has been a 'substantial miscarriage of justice'.

212 Decisions of this Court early in the life of the new appellate regime suggested that resolution of appeals under s 276 was to be approached in much the same way as the former proviso to s 568(1) of the Crimes Act 1958, as interpreted by Weiss, was previously approached.[149] By virtue of the recent decision of the High Court in Baini,[150] however, it is to be hoped that the ghosts of the former proviso to s 568(1) now have been irredeemably exorcised.

213 Baini provides authoritative guidance as to the manner in which the powers in s 276 are to be exercised. The majority[151] emphasised that whether there had been a 'substantial miscarriage of justice' required consideration of the text of s 276.[152] The point was made that s 276 deals exhaustively with an appeal under s 274; so that this Court has no discretion to refuse to allow an appeal if one of the grounds of appeal is established; and likewise no discretion to allow an appeal even if none of the identified grounds of appeal is established.[153] Attention was drawn to the 'important' consideration that two of the limbs of s 276 - s 276(1)(b) and s 276(1)(c) - require demonstration of a 'substantial miscarriage of justice', but the first limb, s 276 (1)(a), does not.[154] The majority also provided guidance as to what the expression 'substantial miscarriage of justice' as used in ss 276(1)(b) and 276(1) (c) conveys.

214 Section 276 recognises that miscarriages of justice may occur in many circumstances and take many forms.[155] For the purposes of s 276(1)(b) and s 276(1)(c) no single universally applicable formula can be given for what is a 'substantial miscarriage of justice'.[156] (It will be remembered that s 276(1)(a) refers to cases where the verdict of the jury is unreasonable and cannot be supported having regard to the evidence.[157]) However, a 'substantial miscarriage of justice' cannot be confined to those cases where the Court is satisfied that it was not open to the jury to convict the appellant. Paragraphs (b) and (c) of 276(1) 'must be read as dealing with more than the case where the Court of Appeal is satisfied that the evidence which was properly before the jury did not permit the conclusion that guilt was established beyond reasonable doubt because that sort of case is dealt with by s 276(1)(a)'.[158] Thus a 'substantial miscarriage of justice' embraces not only those cases which involve 'inaccuracy of result', but also cases of 'departure from process', even if it can be shown that the impugned verdict was open (or it cannot be concluded whether it was open).[159]

215 The majority of the Court in Baini also made it clear that, although demonstration that there has been 'a substantial miscarriage of justice' may be affected by the strength of the prosecution case at trial; and that, in some cases, it may be possible the Court to conclude that there has not been a substantial miscarriage of justice because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged; several points needed to be made about that possibility.[160] First, given the natural limitations that attend the appellate task, an appellate court will often not be in a position to decide whether the appellant must have been convicted if the error, irregularity or cause of complaint had not occurred.[161] Secondly, if an appellate Court decides that conviction was inevitable, that will not necessarily conclude the issue whether there has been a substantial miscarriage of justice, but it is a matter to be taken into account in determining that issue.[162] Thirdly, the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open (whether the verdict was open being the question presented by s 276(1)(a)). If it is said that a guilty verdict was inevitable (i.e. that a verdict of acquittal was not open), the Court must decide that question on the written record of the trial with its attendant 'natural limitations'. The fact that the jury returned a verdict of guilty may, in an appropriate case, influence the answer to the question. But, at least in cases where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the appellate court 'could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt'. If the result of the trial may have been different had the error not been made - because the state of the evidence before the jury would have been different - then there has been a substantial miscarriage of justice. [163]

216 Ultimately, the majority observed:[164]

This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by encompassing, within the expression 'substantial miscarriage of justice', not only an error which possibly affected the result of the trial but also some departures from trial processes (sufficiently described for present purposes as 'serious departures), whether or not the impact of the departure in issue can be determined. It also recognises that an accused's guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a 'substantial miscarriage of justice' if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice ...

217 Looking at the conviction in this case in that light, since, as I have already said, I regard the lesser alternative offences of causing simple injury open, I find myself unable to say that conviction on the count of causing serious injury intentionally was inevitable. Presented with a choice, the jury might have failed to convict on the charge on which it did.

218 In summary, I think lesser alternative verdicts of causing injury were realistically open on the evidence, and should have been left despite defence counsel's eschewal of that course. Failure to leave the alternatives was an error which resulted in a substantial miscarriage of justice, since it cannot be said that conviction on the first count on the Presentment was inevitable had it not been for the error.

219 I should add that, were I to be wrong in the views I have expressed as to the forensic decisions of counsel, and his disavowal of the lesser alternatives was indeed a relevant factor to weigh in the balance in deciding whether there had been a substantial miscarriage of justice, I would still allow the appeal. One of the principal bases upon which the appellant sought to resist conviction on the charged offences was his lack of intention to cause serious injury. Faced with a choice between a complete acquittal, or conviction for either of the lesser offences, the jury might well have regarded the alternative of convicting on a lesser offence as more appropriate. In the circumstances of this case, the interests of justice required that the lesser alternatives be left, despite the attitude of counsel.

220 In my opinion, ground 1 should succeed and the conviction should be quashed. I turn to consider the second ground.

Lies going to consciousness of guilt should not have been left to the jury

222 In opening, the prosecutor asserted that various answers given by the appellant in his record of interview with police were lies. He did not elaborate as to whether they were lies going to consciousness of guilt or mere credit lies.

223 Unhappily, the status of the alleged lies was left to languish until it arose for discussion towards the end of the prosecution case, part way through the evidence of Detective Maher. Prompted by the discussion, the prosecutor produced a document, 'Post-offence conduct relied on by the Crown', which included the alleged lies embraced by the second ground of appeal.

224 The timing of the prosecutor's identification of the supposed lies going to consciousness of guilt is to be discouraged. Some years before the trial in this case, in Ciantar,[165] a five member bench of this Court had made it plain that the prosecution ordinarily should identify lies relied upon as going to consciousness of guilt prior to evidence commencing.[166] The Court said:[167]

Preferably, therefore, before the commencement of evidence, and in any event before the commencement of final addresses, the Crown should be required to identify to the judge, in the absence of the jury, particulars of the following:

(a) any evidence of post-offence conduct on which the Crown seeks to rely as evidence of consciousness of guilt;

(b) to what issue the evidence of post-offence conduct as evidence of consciousness of guilt relates; and

(c) for the purposes of each such issue, the evidence in the case of any acts, facts and circumstances (in addition to the post-offence conduct itself) which is said to show that the post-offence conduct demonstrates consciousness of guilt as to that issue.

225 Although it would have been preferable for the status of the alleged lies to have been determined well in advance of when it was, no miscarriage of justice flows merely from the timing of the discussion. Lies having been opened by the prosecutor, without elaboration as to whether they went to consciousness of guilt or to credit, it should have been obvious to defence counsel that it was necessary for the prosecution to be made to nail its colours to the mast. Despite having an obligation (as did the prosecutor) to ensure that the trial did not miscarry, defence counsel did not ventilate his concerns about the status of the lies until relatively late in the trial. It would have been open to him to have done so. In any event, the status of the lies was thoroughly ventilated before final addresses. Thus, I do not think, as ground 2(a) asserts, that a miscarriage of justice was occasioned by 'the prosecutor's failure to open or identify in his address those lies [which amounted to] implied admissions'.

226 There is more substance in the complaint embodied in the balance of ground 2 that the identified lies were not capable of amounting to implied admissions, involving (so it was argued) circular reasoning.

227 The substance of the answers from the record of interview relied upon as implied admissions of guilt were to the effect that the appellant did not strike KS with his vehicle; was not aware that he had struck and injured KS; and that he had tried to avoid KS.

228 In her charge, the trial judge first instructed the jury that, if satisfied that the appellant had lied, they could use that fact in assessing his credibility. No complaint was made on the appeal about her Honour's directions on this aspect and, in any event, I read them as being consistent with what is required by Zoneff.[168]

229 The trial judge then directed the jury that the second way in which a lie can be used is as 'an unspoken or implied admission by the accused person that they are responsible for a particular crime'. She instructed the jury they could only use a lie that way if satisfied, first, 'that he told a deliberate lie'; and, secondly, 'that the only reasonable explanation for him telling that lie was because he believed he had committed a particular crime and he believed that if he told the truth he would be implicated in that crime'. The judge also directed the jury that finding that an accused person had lied 'is not the same as finding him guilty of that crime'; and that just 'because he believed the truth would implicate him in a particular crime, that does not mean [the jury] must necessarily find him guilty of that crime'. So far as they went, these directions are unexceptionable,[169] and properly were not the subject of complaint.

230 Her Honour also directed the jury that lies 'would be just one piece of evidence' that the jury could use in determining whether or not the prosecution had proved 'the four elements beyond reasonable doubt in relation to the principal crime or the alternative crime'. Taking this passage alone, the jury might have understood that they could use the evidence as bearing upon the four elements of the offences charged as she had described them to the jury: first, that KS suffered serious injury (about which there was no dispute); secondly, that the appellant caused the serious injury (again, this not being in dispute); thirdly, that the appellant had the intention to cause KS a serious injury (or, with respect to the second count, was reckless in the relevant sense); and fourthly, that the appellant acted without lawful justification or excuse, in that he did not act in selfdefence.

231 The fact of serious injury and its causation having been conceded, however, in my view the alleged lies could only have borne upon the intention to cause serious injury (or the appellant's foresight of the probability of serious injury being caused), and self-defence. So much finds support from Ciantar, where it was observed:[170]

[I]n a case where only one charged offence is to be left to jury, the Crown may seek to rely on post-offence conduct as evidence of consciousness of guilt for the purposes of one or a number of issues, thus:

(a) the Crown may seek to rely on the post-offence conduct as evidence of consciousness of guilt of the actus reus; or

(b) the Crown may seek to rely on the post-offence conduct as evidence of consciousness of guilt to prove intent or mens rea; or

(c) the Crown may seek to rely on the post-offence conduct to negative possible defences or justifications (for example, self-defence, defensive homicide, manslaughter, self-defence, duress or sudden extraordinary emergency); or

(d) the Crown may seek to rely on the post-offence conduct for a combination of two or more of the foregoing purposes.

232 Ultimately I think that the trial judge left lies to the jury as going to both causation and intention. Thus she instructed the jury: [171]

So the direction that I give you is that you can use those lies to prove that [the appellant] committed the acts of causing serious injury to [KS] that are required for each of those offences, the acts; you can use those lies to prove ... the acts for the offences and to prove the necessary mental element ... for each crime; in other words, that [the appellant] had the appropriate intention to cause serious injury to [KS] when he committed the principal offence or that he knew his act of hitting [KS] with the ute would probably cause him serious injury if you are dealing with the alternative offence.

The evidence of Ms Woods about how she saw the man in front of the ute and then thrown in the air, and the movements of the vehicle and him being run over, and the medical evidence about the seriousness of [KS's] injuries is the evidence relied upon by the prosecution as evidence which shows that [the appellant] has lied and therefore implicitly admitted his actions causing serious injury to [KS] and his intention or alternatively his knowledge of the probability of serious injury being caused.

233 There was no dispute at trial that the appellant had in fact caused serious injury to KS. The main issues in the trial were his state of mind at the time serious injury was caused and the possibility of self-defence. Utilising the supposed lies as to causation would have been otiose, since causation was not in issue. Further, using the alleged lies as to the intention to cause serious injury, or as to the foresight of the probability of serious injury being caused, required acceptance by the jury of Monica Woods' evidence to the criminal standard. Before the jury could conclude beyond reasonable doubt that the appellant had lied about the several matters alleged, the jury would have had to have accepted her evidence, whilst at the same time rejecting other evidence which bore on the circumstances of KS being struck by the appellant's vehicle. As previously discussed, the jury might have had a reasonable doubt that KS was struck anything other than a glancing blow (or that the appellant's appreciation was that he had struck other than a glancing blow). In my view, the jury would have been entitled to conclude that KS was accurate when he told the police that the appellant 'had put the car into reverse and swung the steering wheel so that the front of his car hit me as it reversed'.

234 Thus there is much to be said for the proposition that the finding that the appellant lied may have involved circular reasoning. As Edwards[172] establishes, consciousness of guilt lies may be used as a complete admission of guilt;[173] as corroboration;[174] or as circumstantial evidence.[175] It is to be remembered that the lies relied upon were, in effect, that the appellant told the police that he did not strike KS with his vehicle; was not aware that he had struck and injured KS; and that he had tried to avoid KS. Monica Woods' evidence was the key to finding that those assertions were lies, on the basis that, if her evidence were accepted, the appellant had not tried to avoid KS and could not have failed to appreciate that he had struck him. Self evidently, Monica Woods could not corroborate her own evidence; and, in context, I fail to see how it might have contributed to a circumstantial case. Indeed, to find an intention to cause serious injury established (or, for that matter, recklessness), and therefore to conclude that the appellant had lied, the jury would have had to have accepted Monica Woods' evidence, and to have rejected other evidence in the case. However, the jury could not have used the alleged lies in order to aid in acceptance of her evidence, since to reason that way would have been 'bootstraps'.[176]

235 In my opinion, there was a real risk that the jury may have been led into illegitimate bootstraps reasoning by the prosecution's reliance on the supposed lies as going to consciousness of guilt, and their being left to the jury as such. I think, therefore, that ground 2 is made out.

236 I add this. The prosecution having sought to rely on the appellant's statements to the police as alleged lies, in my opinion it should have done no more than to rely on them as going only to credit. It is as well to repeat the observations of Winneke P in Russo[177] (citing Edwards):[178]

It must be constantly borne in mind that very few 'lies' told by an accused person will amount to implied admissions of guilt; and that those that are must be clearly demonstrated to be untrue and material. Most lies told by an accused person will merely affect his credit, or the credibility of the case which he is advancing.

Error concerning bad character evidence is not established

238 Although he did not altogether abandon this ground, counsel for the appellant accepted that on its own it could not bring down the conviction. He was correct in that assessment.

239 In opening the case the prosecutor told the jury that the reason that the complainant had armed himself with a knife was that previously he had seen the appellant armed with a gun.

240 A substantial attack was mounted on KS's credit in the course of cross-examination, including the accuracy of the suggestion that he had seen the appellant at the scene armed with a gun.

241 Moreover, Detective Maher was cross-examined to demonstrate that the source of the assertions put to the appellant in the record of interview that the appellant was armed with a gun was KS, and that this source was of dubious reliability. Thus, Detective Maher agreed that KS made the allegation to police about the gun at a time when he was in hospital and 'still very dazed and disorganised in his thoughts'; and that he had been uncertain as to whether the appellant had merely made a gun gesture of some kind or had actually held a pistol.

242 By the time of his final address, the prosecutor had apparently abandoned any reliance on the claim that the appellant had possessed a gun at the scene. His silence on the matter would have been eloquent, and could only have redounded to the appellant's benefit. Further, in his final address, defence counsel impugned the fairness of the questions concerning the gun given their source, and he sought to gain forensic benefit from it.

243 It is unrealistic to think that the jury would not have had an appreciation that the source of the allegation of the appellant's possession of a gun was KS, and that the defence challenged the credibility and reliability of that source. Given that to be so, I see no need for any direction or warning to the jury not to speculate about the appellant's character or that he was the kind of person likely to have committed the offences with which he was charged. Indeed, some may think that such a direction might have worked to the detriment of the appellant, by raising the very spectre sought to be avoided.

244 I am fortified in my view that no direction was necessary by the fact that very experienced defence counsel, imbued with the atmosphere of the trial, sought no direction of the kind contended for in the ground of appeal.

245 For these reasons, I would not uphold ground 3.

246 Both ground 1 and ground 2 should succeed. I would allow the appeal, quash the conviction and sentence, and order a retrial.

[1] See [200] below.

[2] Of intentionally (or recklessly) causing injury, rather than serious injury.

[3] See [196] below.

[4] [2012] HCA 29; (2012) 86 ALJR 954 ('Patel').

[5] Ibid 973 [114] (emphasis added) (citations omitted).

[6] [1998] HCA 23; (1998) 72 ALJR 769.

[7] Ibid [22]-[23] (emphasis added).

[8] [2005] HCA 8; (2005) 79 ALJR 662.

[9] Ibid 677 [99] (emphasis added) (citation omitted), citing T K W J v The Queen [2002] HCA 46; (2002) 212 CLR 124, 133 [26]-[27] (citations omitted) ('T K W J').

[10] [2006] HCA 9; (2006) 80 ALJR 614.

[11] Ibid 618-19 [9] (emphasis added). See also Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, 664 [7].

[12] [1974] VicRp 26; [1974] VR 201 ('Ratten').

[14] [1997] 1 VR 593 ('Miletic').

[15] Ibid 598. Their Honours here cited R v Sarek [1982] VicRp 99; [1982] VR 971, 981; Re Knowles [1984] VicRp 67; [1984] VR 751, 766-7; and R v Marziale (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Brooking JA and Southwell AJA, 18 April 1996) 24-8.

[16] Miletic [1997] 1 VR 593, 598 (emphasis added).

[17] Ibid 600 (emphasis added) (citation omitted). The concluding quotation is from Re Knowles [1984] VicRp 67; [1984] VR 751, 769.

[18] R v Saad [2005] VSCA 249; (2005) 156 A Crim R 533, 564 [102] ('Saad'); R v Bui [2005] VSCA 300, [79]-[80]; R v D D [2007] VSCA 317; (2007) 19 VR 143, 155-6 [39]-[44]; R v Nous [2010] VSCA 42; (2010) 199 A Crim R 134, 146 [50].

[20] [2003] HCA 64; (2003) 219 CLR 1.

[21] Saad [2005] VSCA 249; (2005) 156 A Crim R 533, 564-5 [102].

[22] T K W J [2002] HCA 46; (2002) 212 CLR 124, 133.

[23] See [155] below.

[24] See [44]-[48] below.

[25] Saad [2005] VSCA 249; (2005) 156 A Crim R 533, 560 [91], citing Gilbert (2000) 201 CLR 414, 421 [17].

[26] R v A J S [2005] VSCA 288; [2005] 12 VR 563, 577 [54]-[56] (citation omitted).

[27] [2012] HCA 10; (2012) 86 ALJR 397.

[28] Ibid 404 [29] (citation omitted). The judgment here cited a large number of previous decisions of the Court, beginning with Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466 and ending with Hargraves v The Queen [2011] HCA 44; (2011) 85 ALJR 1254, [42].

[29] Ratten [1974] VicRp 26; [1974] VR 201, 214.

[30] Patel [2012] HCA 29; (2012) 86 ALJR 954, 973 [114].

[31] [2006] HCA 56; (2006) 230 CLR 234.

[32] Ibid 280 [149] (emphasis added).

[33] The appellant's summary of relevant facts describes at [4.5] the injuries suffered by Mr Sleiman as follows:

He suffered haematomas of the right chin and left eye socket; a small subdural haematoma and post traumatic amnesia; abrasions and bruising; fractures of the tip of his back and skull, three neck bones on the left side, his left collarbone, his pelvis bilaterally, his lower back, his left pubic bone, his hip joints, bilaterally, seven of his twelve right ribs and eight of his twelve left ribs, a compound fracture of his left ankle and foot; surgical emphysema; bilateral haemopneumothoraces; two open penetrating wounds to his abdomen; abrasions to his left elbow and knee; a swollen right ankle; and a grade four (out of five) laceration to his left kidney. [He] underwent a number of surgical procedures and his wounds were sutured. He also developed complications, including chronic inflammation of the gall bladder which necessitated a drainage tube. He developed a bacterial infection and wound breakdowns in his left ankle, requiring multiple surgical washouts. His neck fractures required him to wear a neck brace for six weeks. He developed avascular necrosis of his ankle bone, so that parts of the bone died. He spent five weeks in hospital and a further three months in rehabilitation. He has since been wheelchair bound ever since the incident. He hoped to walk again and continued to have physiotherapy treatment.

[34] See Victorian Criminal Charge Book at [7.4.1.1.5].

[35] [2001] VSCA 153; (2001) 3 VR 542 ('Kane').

[40] Ibid 588, [116]. (Emphasis is in the judgment.)

[41] [2005] VSCA 249 ('Saad').

[43] [2003] HCA 64; (2003) 139 A Crim R 100.

[44] [2005] VSCA 249, [102].

[45] [2005] VSCA 300, [76].

[46] [2007] VSCA 152; (2007) 16 VR 647.

[48] [2007] VSCA 317; (2007) 19 VR 143, 153-5, [35]-[40].

[49] [2010] VSCA 42.

[51] Bourke's Criminal Law at 7505.5 adopts and quotes the analysis in Saad and Nous. The bench notes in the Victorian Criminal Charge Book adopt the same approach, and did so at the time of this trial.

[52] Avco Financial Services v Abschinski [1994] VicRp 76; [1994] 2 VR 659, 667-9 (Southwell J).

[53] [2006] VSCA 263; (2006) 16 VR 26, 51 [82].

[54] Crimes Act 1958, s 16.

[55] Crimes Act 1958, s 17.

[56] Crimes Act 1958, s 16.

[57] Crimes Act 1958, s 17.

[58] (1991) 52 A Crim R 336, 337 (Brooking J). See also DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, 527 [11] (Redlich JA); LLW v R [2012] VSCA 54, [2] (Maxwell P, Weinberg JA and Williams AJA).

[59] Section 16 provides:

A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence.

[60] Section 17 provides:

A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence.

[61] R v Campbell [1997] 2 VR 585, 592-3 (Crockett and Hayne JJ); Ignatova v R [2010] VSCA 263.

[62] Section 18 creates two distinct offences - intentionally causing injury and recklessly causing injury: R v Judge Hassett & Anor (1994) 76 A Crim R 19; R v Sopsic (Unreported, 13 Feb. 1995, Vic CCA). It provides:

A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.

[63] Section 15 defines injury as including 'unconsciousness, hysteria, pain and any substantial impairment of bodily function'; and serious injury as including a 'combination of injuries'. Serious injury is an ordinary English term. It is for the jury to determine, as a question of fact, whether the complainant's injuries are sufficient to qualify as 'serious': R v Welsh & Flynn (Unreported, 16 Oct. 1987, Vic CCA); R v Ferrari [2002] VSCA 186.

[66] R v Lillis [1972] 2 QB 236.

[67] An often used example is that of armed robbery, which, by the notional deletion of the word 'armed' in the description of the offence, would result in a verdict of robbery.

[68] Ormiston JA discussed in detail the concept of included offences ( particularly as understood by Canadian courts) in R v Kane (2001) 3 VR 545. See also LLW v R [2012] VSCA 54, [2] (Maxwell P, Weinberg JA and Williams AJA).

[70] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, 80 ALJR 614; Patel v The Queen [2012] HCA 29; (2012) 290 ALR 189, 86 ALJR 954. See also R v Arundell [1998] VSCA 102; [1999] 2 VR 228, 249-50 [53]-[55]; R v Mateiasevici [1999] VSCA 120; [1999] 3 VR 185, 196 [37]; MB v R [2012] VSCA 248, [45].

[71] Gilbert v The Queen (2000) 201 CLR 414, 420 [13].

[72] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson and Toohey JJ). See also Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315, 324-5; Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330 (Brennan J), 339 (Deane J).

[73] Spigelman J, The Truth Can Cost Too Much: The Principle of a Fair Trial, (2004) 78 ALJ 29, 41.

[74] Pemble v The Queen[1971] HCA 20; (1971) 124 CLR 107, 117-8.

[75] I note that cl. 15 of the Jury Directions Bill 2012, now before Parliament, will, if enacted, require a trial judge to 'give the jury any direction that is necessary to avoid a substantial miscarriage of justice'; but that, in an apparent response to Pemble, by cl. 16 it is sought to abolish any rule of common law under which a trial judge is required to direct the jury about 'any defences and alternative offences open on the evidence but which have not been identified as such during the trial', or 'any alternative basis of complicity in the offence charged and any alternative offence in issue'. Of course, the existence of this Bill can have no influence on the outcome of this application.

[76] Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158.

[77] R v Koutsouridis (1982) 7 A Crim R 237; R v Shea (1988) 33 A Crim R 394; R v Thorpe [1998] VSCA 13; [1999] 1 VR 326.

[78] R v Kear [1997] 2 VR 555.

[79] Ormiston JA and Phillips JA in separate judgments; Tadgell JA dissenting.

[80] [1997] 2 VR 555, 560 (emphasis added).

[85] R v Stokes & Difford (1990) 51 A Crim R 25, 32 (emphasis added.)

[86] Or, as Deane J, expressed it in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 56-7 (my emphasis):

The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer in compendious terms to an accused's 'right to fair trial' .... Strictly speaking, however, there is no such directly enforceable 'right' since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.

[87] Criminal Procedure Act 2009, s 276.

[88] Baini v The Queen (2012) 293 ALR 472.

[89] Gilbert v The Queen (2000) 201 CLR 414.

[90] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1.

[91] Ross v The Queen [1922] HCA 4; (1922) 30 CLR 246.

[92] Although Ross was executed on 24 April 1922, having failed to upset his conviction in the Full Court, High Court and Privy Council, he was posthumously pardoned in 2008, after the Attorney-General sought the opinion of the Trial Division of the Supreme Court (Teague, Cummins and Coldrey JJ) pursuant to s 584 of the Crimes Act 1958 The Court found that there had been a miscarriage of justice: Re Ross (2008) 19 VR 272.

[93] Ross v The Queen [1922] HCA 4; (1922) 30 CLR 246, 254.

[95] Mraz v The Queen (1955) 93 CLR 593.

[99] R v Evans and Lewis [1969] VicRp 109; [1969] VR 858.

[100] O'Bryan and Little JJ; Smith J dissenting on this aspect.

[101] [1969] VicRp 109; [1969] VR 858, 869.

[102] [1969] VicRp 109; [1969] VR 858, 871.

[103] Gilbert v The Queen (2000) 201 CLR 414.

[104] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1.

[105] Gleeson CJ and Gummow J jointly, and Callinan J; McHugh and Hayne JJ dissenting in separate judgments.

[106] (2000) 201 CLR 414, 419 [8], 421 [16], 422 [20].

[109] R v Coutts [2006] UKHL 39; [2006] 1 WLR 2154, [2006] 4 All ER 353.

[110] Ibid (WLR) 2166, (All ER) 366 [21].

[111] Ibid (WLR) 2167, (All ER) 367-8 [23]-[24] (emphasis added).

[112] Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ.

[113] [2003] HCA 64; (2003) 219 CLR 1, 13-14 [26] (Gleeson CJ and Callinan J), 15 [32] (Gummow J), 33 [95] (Kirby J), 40 [128]-[129] (Hayne J).

[114] R v Doan [2001] VSCA 142; (2001) 3 VR 349.

[115] Ibid 356-7 [27] (citations omitted).

[117] [2001] VSCA 153; (2001) 3 VR 542. (Curiously, judgment in Kane was delivered the day after that in Doan, on 7 September 2001. Gillard was delivered on 12 November 2003.)

[119] R v Maxwell [1990] 1 WLR 401; [1990] 1 All ER 801.

[120] [2001] VSCA 153; (2001) 3 VR 542, 587 [111]-[112] (footnotes omitted).

[122] R v Saad [2005] VSCA 249; (2005) 156 A Crim R 533.

[123] Crimes Act 1958, s 325.

[124] [2005] VSCA 249; (2005) 156 A Crim R 533, 562 [97]-[98] (footnotes omitted).

[125] Ibid 563-5 [100]-[102] (footnotes omitted; emphasis added).

[126] R v Christy [2007] VSCA 152; (2007) 16 VR 647.

[127] Also very recently, in Farquharson v R [2012] VSCA 296, this Court has again had cause to consider whether a lesser verdict of manslaughter should have been left to a jury where the charge was murder. In the particular circumstances of that case, it was held that there was no miscarriage if justice in the alternative not having been left.

[128] R v Nous (2010) 26 VR 96.

[129] Section 425(1)(b) of the Crimes Act 1958 permits an alternative verdict of indecent assault to be returned on a charge of rape.

[130] R v Nous (2010) 26 VR 96, 107 [53].

[132] Ibid 1067 [48]-[50] (footnotes omitted).

[133] [2004] NSWCCA 20; (2004) 59 NSWLR 515.

[139] R v Tilley [2009] SASC 277; (2009) 105 SASR 306.

[141] Blackwell v R (2011) 81 NSWLR 119.

[142] Ibid 131 [65], 135 [84], 141 [21].

[143] Ibid 129-30 [49]-[58], 135 [83].

[144] One finds this notion expressed in a variety of ways in the cases - 'reasonably open', 'fairly and practically open', 'viable rational result', 'if the evidence in support of it is flimsy or the prospects of a conviction on the lesser offence rather than the major offence is fanciful', and so on.

[145] See also R v Coutts [2006] UKHL 39; [2006] 1 WLR 2154, [2006] 4 All ER 353, (WLR) 2167, (All ER) 367-8 [24] (Lord Bingham), extracted above, [188].

[146] The most recent manifestation was found in s 568(1) of the Crimes Act 1958.

[147] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[149] Sibanda v R (2011) 213 A Crim R 303, 305 [5] (Nettle JA), 314 [64]-[65] (Sifris AJA).

[150] Baini v The Queen (2012) 293 ALR 472.

[151] French CJ, Hayne, Crennan, Keifel and Bell JJ jointly; Gageler J in dissent.

[152] 293 ALR 472, 475 [14].

[157] This includes those cases where the verdict is unsafe and unsatisfactory in the sense described in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 and the cases following it.

[158] 293 ALR 472, 478 [27].

[164] Ibid 480 [33] (emphasis added).

[165] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).

[166] I note that cl. 23 of the Jury Directions Bill 2012, now before Parliament, if passed into law, will require the prosecution, at least 28 days before trial, to give notice to the accused of an intention to rely on 'incriminating conduct' (which includes lies).

[168] Zoneff v The Queen (2000) 200 CLR 234.

[169] Edwards v R [1993] HCA 63; (1993) 178 CLR 193, 208, 209, 210-11.

[170] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 51 [81].

[172] Edwards v R [1993] HCA 63; (1993) 178 CLR 193.

[176] R v Laz [1998] 1 VR 453, 466; R v Russo [2004] VSCA 206; (2004) 11 VR 1, 8 [19]-[20].

[177] R v Russo [2004] VSCA 206; (2004) 11 VR 1, 3-4 [6].

[178] Edwards v R [1993] HCA 63; (1993) 178 CLR 193, 209.