James v The Queen [2013] VSCA 55

James v The Queen [2013] VSCA 55 - VSCA 2013 case summary — Zoe

[187]

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'.

[216]

[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.

[235]

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.

[239]

... 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.

[264]

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.

[277]

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.

[283]

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 ...

[286]

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]

[302]

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]

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Judgment (474 paragraphs)

James v The Queen [2013] VSCA 55 (19 March 2013)

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Cases Cited (39)