Miranda v R

The evidence at the trial

1. The charges arose out of one event or episode occurring on 4 October 2013. The applicant and the complainant had known one another a number of years earlier and had become reacquainted in July 2013 when the complainant began training in kickboxing at a sports academy in Kingsgrove. The applicant became the complainant's kickboxing instructor and remained so up and until the events of 4 October 2013.
2. At some point during the week preceding 4 October, an incident occurred between the applicant and the complainant which generated a degree of animosity between them, such that they did not speak in the days following. It was said by the Crown that this disagreement was about an incident occurring during a kickboxing session where the complainant "disrespected" the applicant.
3. The Crown case at trial was that at 12:30 pm on 4 October 2013, the applicant attended the complainant's home, accompanied by a male companion, and knocked on the front door. The complainant opened the door slightly; and, seeing the applicant, opened the door further. She then saw that the applicant was holding a stocking weighted with what she thought to be a ball, about the size of a billiards ball. This is the alleged offensive instrument. It was the complainant's evidence that she attempted to close the door; but that the applicant pushed the door open and forced her way in. She then swung the ball at the complainant, hitting her a number of times on her torso, arms and legs. The complainant retreated to her lounge room, followed closely by the applicant who was accusing the complainant of breaking into her gym. The applicant then punched the complainant three or four times to the face, and threatened the complainant that if she ever returned to the kickboxing gym, or if she reported to police what had occurred, the complainant would be "fucking dead". The applicant then left with the man who had been present throughout, but did not participate in the assault. The complainant did not recognise the man, but described him as being six foot tall, with brown hair and tattoos.
4. The applicant gave evidence at trial. Her case was that she came to the house of the applicant out of a concern that the complainant had become involved in the use of illicit drugs through her boyfriend. Fearing that the complainant's boyfriend would be present, the applicant was accompanied by a male friend for her own safety. On her account, she entered the house with the permission of the complainant and expressed her concern about the complainant's drug use. The complainant then became aggressive towards her, pushing her in the chest region and raising her arm. The applicant said that she reacted in self-defence, striking the complainant three times with a closed fist. She denied being armed with the ball in the stocking, or anything else.
5. Evidence of self-corroborating statements that each made after the fact; evidence of the applicant's palm print taken from the front door jam; and medical evidence documenting the complainant's injuries were received at the trial, but there was no objective evidence by which their conflicting accounts of what occurred could be evaluated one way or another.
6. The verdict of the jury, as observed by the learned trial judge during the sentencing proceedings, necessarily signified that they did not accept the account of either in its entirety, but rather accepted in part only the evidence of each.

Submissions of the applicant

1. The applicant contends that the verdicts of not guilty to counts one, two and the s 112(2) alternative, but guilty to the s 111(1) alternative are inconsistent. As outlined above, the versions of the complainant and applicant were the only direct evidence of what occurred, and, it was argued that by not accepting in its entirety the complainant's account, the jury must have had real concern as to her credibility. As there was no independent evidence to support each essential element of the Crown case, so the argument ran, there was no rational basis for the jury to have differentiated their findings about her credibility as it bore upon the elements of the different counts. Given this, there was no reasonable or logical path to conviction for the s 111(1) offence.
2. Counsel for the applicant accepted in oral argument that it was well open to the jury to accept part and reject the rest of the same witness's account. But it was argued that, notwithstanding this, there was no evidence to support their verdict of guilty that could sit with the not guilty verdicts. It was argued that the only logical explanation for the not guilty verdicts was that the jury rejected the complainant's evidence almost in its entirety. They could not then rely upon it to convict on the s 111(1) offence.
3. In support of this argument, the applicant relied on the principles applicable to the question of inconsistent verdicts as enunciated in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12 (per Gaudron, McHugh and Gummow JJ at 453), Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; R v Markuleski (2001) NSWLR 81; [2001] NSWCCA 290 (Wood CJ at CL) and Pillay & Ors v R (2014) 43 VR 327; [2014] VSCA 249. There was no contest between the parties as to the relevant applicable principles, which I will set out as necessary later in these reasons. Rather their disagreement was as to what could be made from the evidence at trial.
4. Aside from the throwing of the three punches by the applicant, the accounts of the complainant and applicant were entirely divergent. As there was no other corroborative evidence of the complainant's account, the applicant argued that the verdict must have been a consequence of the jury not accepting the evidence of the complainant on the basis of credibility or some other ground. The applicant submitted that this was likely considering the inconsistencies in the evidence of the complainant at trial. For example, the complainant's evidence that she was knocked unconscious could not possibly be correct. The applicant argued that, on the basis of their verdict, the jury must not have been satisfied of the complainant's account of what occurred at the threshold, nor of her evidence about the "ball in sock" weapon. There was no rational basis for the rejection of this evidence by the jury and a concurrent finding of intent to assault, as the basis for both findings was the acceptance or not of the complainant's evidence.
5. The verdicts suggested the jury acted on a misunderstanding of the directions given about self-defence in relation to the s 112 alternatives.

Submissions of the respondent

1. The respondent submits that the verdicts of the jury are logically explicable and well open on the evidence lead at the trial. The jury were satisfied beyond reasonable doubt that the applicant entered the property with an intent to assault the complainant occasioning actual bodily harm, but they were not similarly satisfied that there had been a "break" into the complainant's home or that the applicant was armed at the time with an offensive instrument. The Crown submitted that it is unlikely that the jury's verdicts reflect a finding that the applicant acted in self-defence. First, the prosecution did not need to negate it in respect of the s 111 alternatives (as assault was not an element of this offence). Secondly, in practical terms it is unlikely as a finding of self-defence would have suggested the improbable scenario that the jury was satisfied that the applicant entered the house of the complainant with intent to assault, but then acted in self-defence when striking the complainant.
2. In considering the verdicts of the jury, the Crown argues that they indicate an approach taken by the jury of accepting those parts of the complainant's account that were corroborated by, or consistent with, other evidence at trial and otherwise not being satisfied beyond reasonable doubt of matters where no such evidence was led.
3. For example, in support of the complainant's account that the applicant forced her way through the door, the prosecutor called an expert in fingerprints, Ms Eyre, to give evidence on the significance of the applicant's hand print on the doorway. Ms Eyre's evidence was consistent with both accounts: only a small amount of pressure is required to leave a fingerprint, and in circumstances where too much pressure is applied the print can be compromised. It was open to the jury to infer from this that no "break" had occurred and that the applicant had entered with the complainant's permission. Further in cross-examination, the complainant moved away from the proposition that she had been forced back by the door being pushed open. This makes explicable the jury's verdict on the various alternatives, as "break" is an element of the s 112 alternatives only.
4. There was similarly a lack of corroborative evidence of the existence of the offensive instrument or that it was used against the complainant. Dr Bainbridge, the medical expert, only gave evidence in respect of the injuries sustained to the complainant's face, which he said were consistent with multiple punches with a closed fist. He did not examine the rest of her body. Although photos were tendered of bruises on the complainant's arms and legs, these were also consistent with her time spent kickboxing.
5. The Crown emphasised that the jury's rejection of the Crown case in respect of the question of the offensive instrument was thus explicable by the lack of corroborative evidence supporting its existence and use. It did not necessarily lead to the conclusion that the jury had made a finding that the complainant had given false evidence.
6. The s 111(1) offence of entry with intent to commit serious indictable offence (the second s 111 alternative) is an offence of specific intent. Even if the evidence of the complainant were rejected in its entirety, there was sufficient evidence to satisfy the mental element beyond reasonable doubt. It was not disputed that at least three punches were administered by the applicant shortly after entering the dwelling; that the applicant was an experienced kickboxer; and that she was in the company of a male friend, David Burchell, a person at that time unknown to the complainant. There was also independent medical evidence of actual injury suffered by the complainant. Taken as a whole, these factors support an inference that the applicant on entry had the requisite intent, and provide a basis for the rejection of the applicant's version of events. These factors, taken together, tended to negative the account of the applicant that she visited the complainant out of concern for her wellbeing, and acted only in self-defence ( a "defence" in any event not available to this alternative).
7. The jury were directed, correctly, as to the process of fact-finding. Specifically that they were not faced with the task of resolving a question of who was telling the truth, but rather whether the Crown had satisfied them beyond reasonable doubt that the complainant was, "telling the truth in all material respects going to proof of the elements in the indictment." Relevant to this ground, they were also instructed to reason logically, meaning that should one element be not proved in respect of one count, it must also therefore be not proved in respect of another count having the same element. They were also given the usual cautions and directions relevant to circumstantial cases and the situation before them of a Crown case based largely on the evidence of a single witness. The Crown submits that the jury's verdicts demonstrate that the jury understood, and was diligent in following, these directions; that there is no inconsistency in the verdicts it delivered; and that accordingly this ground should be dismissed.

Applicable principles and consideration

1. For the purposes of the Criminal Appeal Act, an appeal based on the argument of inconsistent verdicts is a species of the genus "that the verdict of a jury should be set aside on the ground that it is unreasonable, and cannot be supported, having regard to the evidence". The ground involves a question of fact, or at best a question of mixed law and fact and leave is required: s 5(1)(b); M v The Queen (1994) 191 CLR 487 at 493. In Mackenzie v the Queen (1996) 190 CLR 348 at 366 - 368 Gaudron, Gummow and Kirby JJ stated "a number of general propositions" which may be derived from the cases dealing with a ground of appeal asserting unreasonableness on the basis of inconsistent verdicts. It is not necessary in the case at hand to either set out these propositions fully or to summarise them. However, where, as here, the argument appears to be one of inconsistency in jury verdicts on different counts on the indictment "the test is one of logic and reasonableness". The appellate court ought to exercise restraint in acceding to an argument that verdicts are inconsistent in the relevant sense given the centrality of the jury in the administration of criminal justice for serious offences. It may be necessary for the applicant for leave to establish clear vitiating inconsistency requiring appellate intervention to prevent a possible injustice: Mackenzie at 368. As McHugh, Gummow and Kirby JJ pointed out in MFA v The Queen (2002) 213 CLR 606; [202] HCA 53 at 618 [36] the statutory test is one of "unreasonableness, not inconsistency".
2. In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 a five-judge bench of this Court undertook an exhaustive review of the authorities concerning inconsistent verdicts as a ground of statutory unreasonableness. Spigelman CJ, writing for the majority, said (at [125]): "This review of the authorities indicates that a reasonable jury is not obliged to have a doubt about the occurrence of some incidents about which it has only a complainant's uncorroborated evidence, if they have such a doubt about other incidents whenever, in the latter but not the former case, there is evidence contradictory of, or failing to support, the evidence of the complainant. Any conclusion about this matter depends on the full range of relevant circumstances. Insofar as previous decisions of this Court… suggest the contrary (and the actual results in those cases depend on their particular facts) they should not be followed."
3. The decision in this case however does not turn upon any point of principle. As I have said, although developed with great care, the only argument advanced was that unreasonableness in the statutory sense was established by the circumstance of inconsistent verdicts. I am not satisfied that the verdicts in this case were inconsistent in any sense. Unlike the situation which commonly arises where verdicts are said to be inconsistent in cases of consecutive counts of separate offending, the present case did not involve multiple counts arising out of a series of allegedly criminal acts. In truth there was a single episode of criminality asserted in the indictment. It was in substance a single count that was left for the jury's consideration but by reference to various possible alternatives of legal categorisation. The applicant may have been acquitted of all, but she could not be convicted of more than one count.
4. The indictment expressly pleaded two charges "in the alternative". The first and more serious of them was the aggravated version of the offence contrary to s 112 Crimes Act of breaking and entering a "dwelling-house" and committing a serious indictable offence "therein". As I have previously stated, the circumstance of aggravation relied upon is the allegation that the applicant was armed with an offensive instrument, namely, the ball and stocking; and the serious indictable offence was allegedly one of assault occasioning actual bodily harm. The alternative pleaded in the indictment was an offence contrary to s 111(2) of the Crimes Act of entering the dwelling with intent to commit the same serious indictable offence. The circumstance of aggravation was the same, that is, that she was armed with the offensive instrument.
5. Under s 115A Crimes Act, a jury not satisfied that the applicant was guilty of either of the s 112(2) offence, or the s 111(2) offence, but satisfied on the evidence that she was guilty of an offence under s 112(1) or 111(1) was entitled to find the applicant not guilty of the offence charged, but guilty of the statutory alternative. In this case, as the Crown points out, s 115A was engaged if the jury was not satisfied beyond reasonable doubt that the Crown had established the "circumstances of aggravation", but was satisfied of the other elements of either offence.
6. It can be seen therefore that each of the four possible alternatives left to the jury were in respect of the same episode of alleged criminality. There were differences in their legal elements which reflected the actual issues of fact which arose at the trial.
7. I bear in mind that the verdicts brought in were as follows, and in this order: 1. Not guilty to the s 112(2) charge; and 2. Not guilty to the s 111(2) charge; and 3. Not guilty to the s 112(1) charge; but 4. Guilty of the s 111(1) charge.
8. With respect, the Crown submissions summarised at [17]-[23] above are sound. Considering the legal elements of the various alternatives, it can be said with confidence that a jury could be satisfied beyond reasonable doubt that the applicant entered the complainant's home with the specific intent of assaulting the latter "and thereby occasioning actual bodily harm". It can also be said with confidence that, on the same evidence, the same jury may not be satisfied beyond reasonable doubt either that, in the legal sense, the applicant broke into the complainant's house, or that when she entered the applicant's house she was armed with the ball and stocking.
9. I can see nothing illogical or unreasonable about these verdicts considered individually or as a whole. I fail to see any inconsistency amongst them. I find nothing about the verdicts which suggests compromise; fundamental misunderstanding by the jury of their function; uncertainty about the different and overlapping elements of the various alternative offences; or a misunderstanding of the legal instructions given. There is no argument advanced of any lack of clarity in the learned trial judge's instruction on the applicable law.
10. I accept that there are no hard and fast rules informing the exercise of the Court's power in this area. At the same time, the different verdicts returned by the jury in the circumstances of this case demonstrate, contrary to the applicant's submission, that they had a clear understanding of the differing elements of the various alternatives and of their function as the judges of fact in the case.
11. As the Crown accepts, the different verdicts do make clear that the jury could not have been persuaded beyond reasonable doubt of everything the complainant said about what happened at her home on 4 October 2013. But this is entirely unremarkable. As is commonly pointed out in the authorities (see, for example, MFA at 617[34]) juries are ordinarily directed, as they were here, to give separate consideration to each count; that the evidence of each witness may be accepted in whole or in part; and, of course, that before the they can convict, each element of an offence must be proved by the prosecution to the jury's actual satisfaction beyond reasonable doubt.
12. As the Crown argued here, and as was said in MFA (at [34]) : "A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility." Of course, the complainant's credibility was seriously put in issue. Key features of her evidence, necessary to prove the most serious of the various alternatives, were contradicted by testimony of the applicant. A jury may hesitate to accept everything a complainant said beyond reasonable doubt in the face of such a conflict.
13. What is significant to my evaluation of the evidence is that it was not disputed that the applicant punched the complainant at least three times within her own home. Both witnesses agreed on that very salient circumstance even if they agreed about little else of significance. It was well open to the jury on the evidence to find that their once friendly relationship had soured and that there was a level of animosity between them. Given that animosity and the applicant's far superior level of expertise in martial arts, it is most improbable that whatever was said between them, the descent into physical violence was instigated by the complainant. More significantly, from the circumstances that: the applicant attended the premises with a male companion; she had a degree of animosity towards the complainant; and, using her superior physical skills she punched the complainant three times soon after entering her home, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the applicant entered the complainant's home on 4 October 2013 with the specific intent of assaulting her whereby actual bodily harm was occasioned. In reaching this conclusion I have borne in mind the jury's distinct advantage in seeing and hearing the conflicting testimony for themselves. An advantage which, of course, cannot be re-created in this Court.
14. I would reject the first ground of appeal.

Ground two: the common law alternative

1. Before the commencement of final addresses, the learned trial judge raised the question of available alternative verdicts with the advocates appearing at the trial. The following exchanged occurred (at 378.10T-379.33T): "TRIAL ADVOCATE: Yes, I did indicate that there would be - there are statutory alternatives and that I didn't them to anything further on that point. HIS HONOUR: Ms Mayne, what do you say as to the Crown's right or otherwise to put those alternatives? MAYNE: The second one is - the alternative charge is on the indictment and -- HIS HONOUR: Yes. No, the statutory alternative. MAYNE: Statutory alternatives? They're available under the statute obviously so they're available and I can't say anything about those, your Honour. The Crown hasn't laid any charge of assault or assault occasioning actual bodily harm. Ms Miranda's defence does raise the issue of self-defence. My friend cross-examined in terms - Ms Miranda in terms of she didn't have the opportunity to retreat. So whether that raises the issue of a self-defence which is being excluded by the Crown, which no doubt the Crown would argue, whether or not there's any issue to be left to the jury in terms of a charge of assault or assault occasioning actual bodily harm, neither of those are laid, your Honour, of course as alternatives. HIS HONOUR: So if for instance the jury were to find that there was no breaking, at the time of entry there was no intention to assault occasioning actual bodily harm but there was something of the kind described by the accused but self-defence was excessive, what do you say should be the outcome? MAYNE: I say that the Crown certainly hasn't laid those. HIS HONOUR: No. MAYNE: And if they sought any verdict on that basis then it should have been laid as -- HIS HONOUR: I don't think the Crown is seeking -- TRIAL ADVOCATE: I don't, your Honour. I think it's made clear in that High Court decision of James that that charge should have been on the indictment if that was the Crown case. It's not - I'll be raising in my closing address issues about self-defence and the reliability and credibility of the version given by Ms Miranda and I'll be using words that it wasn't necessary to hit her and that they might think that she could have easily dealt with it and that [sic: her] actions were excessive but I certainly concur that if the jury were not satisfied that she had the intention at the time that she entered the property, if they're not satisfied of many other things in the indictment, that the Crown would not be entitled to a verdict of a straight assault occasioning actual bodily harm. HIS HONOUR: Let's be clear about this. Even if the jury finds that self-defence was excessive, unless the other elements are there as to her intention when she entered the property she has to be found not guilty. TRIAL ADVOCATE: I believe that's the case, your Honour, yes. HIS HONOUR: There's no alternative for instance on the basis of an excessive self-defence; striking someone three times. TRIAL ADVOCATE: That's correct. HIS HONOUR: There's no alternative to convict of anything other - the indictment counts or the two statutory alternatives, and most certainly not simply of assault occasioning actual bodily harm simpliciter; that is not available. TRIAL ADVOCATE: That's my understanding, your Honour. HIS HONOUR: Yes. Ms Mayne, unless you talk me out of it, that's what I would be saying to the jury. MAYNE: No, that would be so. HIS HONOUR: It does seem to me on the state of the evidence the jury needs to be warned against that. There could be a clear temptation for them to do that."
2. It is obvious that his Honour raised with both advocates the question of whether the common law alternative to the s 112 counts of assault occasioning actual bodily harm under s 59 Crimes Act should be left. It was not an available alternative to s 111 offences. It is also clear that both advocates were of the view, and submitted, that the common law alternative should not be left. The trial advocate for the prosecution was, with respect, in error about the effect of James v the Queen (2004) 253 CLR 475; [2014] HCA 6. But in my view that is neither here nor there as she clearly argued "that the Crown would not be entitled to a verdict of a straight assault occasioning actual bodily harm." The exchange also makes clear that the defence advocate made a considered forensic or tactical decision to ask the judge not to leave the lessor common law alternative lest the applicant be deprived of the chance of an outright acquittal.

Submissions of the applicant

1. Counsel for the applicant argues that the interests of justice and the requirements of a fair trial made it necessary that the trial judge leave the common law alternative of assault occasioning actual bodily harm ("the common law alternative") to the jury, regardless of the opposition of the parties. In making this argument, counsel for the applicant accepts that it was not mandatory in a general sense that it be left; rather, the particular circumstances of the trial necessitated it.
2. In a specific sense therefore, it is submitted that not leaving the common law alternative to the jury deprived the applicant of the opportunity of a conviction for a lesser offence, a conviction that clearly was available on the evidence. As discussed above, it was not disputed that the applicant punched the complainant. What their verdict demonstrated was that the jury did not accept either version of the events entirely. The focus of the jury therefore would have been on whether the other elements of the various alternatives had been established beyond reasonable doubt. The applicant argues that had the common law alternative been left, the jury would have been assisted in their task of resolving those issues. For example, the jury may have found that the applicant came to the complainant's house in good faith, but that the dynamic promptly changed once inside the dwelling and the blows followed perhaps by way of unreasonable response to the threat posed by the complainant, even in the circumstances perceived by the applicant. This was not a finding of fact that the jury could give effect to in responding to the indictment as presented to them.
3. Underlying these submissions was an argument that there was an element of compromise in the verdict reached, due to the difficulty posed by the indictment and the limited independent evidence. The common law alternative would have been a more logical and lesser count on which to convict. As counsel pointed out, the sole count on which the applicant was convicted was the last and least serious alternative left to the jury.

Submissions of the respondent

1. The Crown submits that the exchange set out at [38] above demonstrates that the question of alternative counts was raised with the advocates appearing for the parties by the learned trial judge. His Honour accepted the position each of them advanced for admittedly separate reasons. Accordingly, leave pursuant to r 4 of the Criminal Appeal Rules to raise the ground is required and should be refused.
2. Should leave be granted, the Crown argued that the court would not intervene. Counsel for the applicant below made a legitimate forensic choice of not pressing for the common law alternative to be left to the jury. Indeed, had it been left, there was a distinct possibility of a finding of guilt on both the s 111(1) alternative and the common law alternative, as the former did not include the latter. Relying on the language of the High Court in James, to have left the common law alternative may have had the effect of creating a further uncharged path to conviction. It would have provided another charge which the applicant may have been convicted of in addition to the finding of guilt on the s 111(1) alternative. This may have been a likely outcome when one recalls that the delivery of the blows was undisputed, at least if self-defence was negatived. Creating this new, uncharged path to conviction may have deprived the applicant of the chance of outright acquittal.
3. The Crown further joined issue with the submissions of the applicant to the extent that she argued that the possibility of miscarriage of justice arises because the jury appeared to convict on the least serious charge available to them. Had the common law alternative been left the jury, mercifully, may have thought it enough. The Crown argues that this impermissibly elides the first ground with the second, and that this argument should be rejected.

Applicable principles and consideration

1. As the matter was fully argued and raises a potential miscarriage I would grant leave under r 4.
2. In James the High Court of Australia considered the question of whether there is an affirmative duty on a trial judge in trials for offences other than murder always to leave a lesser available, alternative charge to the jury. In dismissing the appeal, the plurality did not follow the approach as enunciated by this Court in R v King (2004) 59 NSWLR 515; [2004] NSWCA 20 (at 516 [5] by Grove J; and 534-5 [110]-[112] by Smart A-J), that the principles developed in respect of the obligation to leave manslaughter in cases of a charge of murder (see Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15) apply also to "the failure to leave any lesser offence which, expressly or by implication, is included in the allegations charged in the indictment ("an included offence")": James at [5]. Other than in footnotes, King is not referred to in the judgments in James, but it was followed and applied in the dissenting judgment of Priest JA in the Supreme Court of Victoria Court of Appeal, which formed the basis of the appellant's argument in the High Court: James v The Queen (2013) 39 VR 149 at 197-9 [201]-[207].
3. The majority justices expressed clear preference for an earlier New South Wales approach (and the like approach of the Queensland Court of Criminal Appeal) as explained in R v Cameron [1983] 2 NSWLR 66 at 71 and R v Pureau (1990) 19 NSWLR 372 at 375-7 (by Hunt J). Their Honours emphasised that the dictates of fairness are at the heart of this approach. In Cameron it was said that considerations of fairness made it unwise to leave an alternative verdict without first discussing it with counsel (at [34]). Their Honours continued: "The Queensland Court of Appeal has similarly held that fairness may require that the accused's chances of acquittal are not jeopardised by leaving an alternative verdict. These remarks were approved by Kiefel J in R v Keenan with the concurrence of Hayne, Heydon and Crennan JJ. Keenan holds that the duty to ensure a fair trial does not require that a lesser charge is left in every case: the test is what justice to the accused requires." [Footnotes omitted]
4. The observation of Keifel J in R v Keenan (2009) 236 CLR 397; [2009] HCA 1 (at [138]) is apposite to the case at hand: "A trial judge's duty to ensure a fair trial does not mean that the lesser charge must be left to a jury in every case. It is a question of what justice to the accused requires. Putting the lesser charge to a jury might jeopardise the accused's chance of a complete acquittal in some cases."
5. The majority in James accepted that in the particular circumstances of a case the interests of a fair trial may warrant that a particular alternative be left, but this does not amount to a rule that "every viable alternative verdict be left in every case" (at [26]). As their Honours observed at [28], since the elements of an "included offence" are encompassed in the allegations pleaded in the indictment, "included offences" will be regularly available on the evidence. Their Honours continued (at [28]-[29]): "In some cases, irrespective of the allegations charged in the indictment and the conduct of the trial, the trial judge would be required to direct the jury on a "cascade of lesser offences". This last mentioned prospect may be thought to be the antithesis of the obligation imposed on the trial judge when summing up to the jury to identify the real issues in the case and to instruct the jury on so much of the law as is necessary to decide those issues. That is so unless the real issues at every trial encompass the accused's guilt of every included offence of which, in law, the accused could be convicted regardless of the forensic choices made by the parties. This latter contention is to be assessed in light of the essential features of our accusatorial and adversarial system of criminal justice." [Footnotes omitted]
6. Their Honours also highlighted that the requirements of fairness, and accordingly the duty of the trial judge, differ depending on whether one is contemplating possible defences or possible alternative counts (at [31]-[33]): "Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel... The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how on a view of the facts a defence or partial defence arises. …fairness to the accused may require that the jury be directed of the availability of the alternative verdict. In such a case the failure to do so would be a miscarriage of justice. However, it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused's chances of outright acquittal on the issues joined not be jeopardised by the trial judge's decision to leave an alternative verdict." [Footnotes omitted]
7. These statements of principle are directly applicable in the present case. The Crown's trial advocate, with respect, was mistaken about the effect of James. It does not establish a rule that for offences, other than murder, alternative counts must be pleaded on the indictment. But the error is neither here nor there as [33] of the majority judgment demonstrates. The circumstance that, all in all, the evidence of the trial may well have supported a conviction for the lesser offence of assault occasioning actual bodily harm did not make the applicant's guilt of that lesser offence an issue in the trial, particularly as the prosecution expressly eschewed the opportunity to seek a verdict on the uncharged offence. As the plurality in James explained at [37], the separation of prosecutorial and judicial functions is of importance in Australian law. The imposition of an affirmative duty on a trial judge "to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions." Their Honour's continued: "It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict".
8. In considering whether fairness to the accused required the jury be directed of the availability of the lesser alternative verdict, it was highly relevant in the adversarial trial process that weight be afforded the tactical decision of the defence advocate to seek an outright acquittal on the issues actually joined. Overriding the considered position of the parties may well have jeopardised that chance.
9. I am not persuaded that this is an occasion where the duty to secure a fair trial required the alternative verdict be left to the jury over the objections of the advocate appearing for the applicant at trial.
10. As I have said in relation to ground 1, there is simply no reason to suppose that the jury impermissibly compromised on the least serious available charge. Even were it otherwise, and accepting the right of the jury to bring in a merciful verdict in accordance with R v Kirkman (1987) 44 SASR 591 at 593, it would not further the public interest in the administration of criminal justice to provide an even lesser charge on which they could compromise. This would be inimical to a fair trial according to law.
11. Moreover, there is force in the Crown's argument that assault occasioning actual bodily harm was not an available common law alternative to the s 111(1) Crimes Act offence of which the applicant was convicted. Assault occasioning actual bodily harm is not an element of the offence of which the applicant was convicted and accordingly it is not an available alternative.
12. The second ground of appeal should be rejected.
13. Finally, the decision in James must be taken to be inconsistent with the decision of this court in R v The King and therefore should be understood as impliedly overruling it. This reinstates the approach, approved by the High Court, which was earlier taken in R v Cameron and R v Pureau.
14. The orders I propose are: 1. Grant leave to appeal; 2. Appeal dismissed.
15. BUTTON J: I agree with Campbell J.

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