R v Christy [2007] VSCA 152

Court of Appeal (Vic)|2007-08-08|Before: MAXWELL P, KELLAM JA and KAYE AJA

CRIMINAL LAW - Alternative verdicts - Accused charged with false imprisonment, assault with intention to rape and assault - Whether trial judge erred in taking from jury's consideration alternative count of assault - Whether trial judge erred in explaining to jury the withdrawal of the alternative count of assault - Whether failure to leave assault count to jury amounted to miscarriage of justice.

1 I have had the advantage of reading in draft the reasons for judgment of Kaye AJA. I agree that the appeal should be allowed, for the reasons which he gives.

2 I have had the opportunity to read the judgment in draft of Kaye AJA and I agree with the disposition proposed by him for the reasons given by him in his judgment.

**3 The applicant was charged by presentment with one count of unlawful imprisonment (count 1), one count of assault with intent to rape (count 2), one count of assault (count 3), and one count of theft (count 4). The trial commenced on 8 December 2005. The applicant pleaded not guilty to the first three counts, and guilty to the fourth count, the charge of theft. The trial was of short duration. The evidence concluded on the third day of the trial, 12 December. On that date, and before final addresses, the trial judge announced that he would withdraw count 3 (common assault) from the jury's consideration. The jury retired to consider its verdict late on 12 December, after hearing counsel's addresses and the judge's charge. On 14 December the jury announced verdicts of guilty in respect of counts 1, 2 and 4.

4 Subsequently, after hearing a plea in mitigation of sentence, the trial judge sentenced the applicant to 18 months' imprisonment on count 1, 4 years' imprisonment on count 2, and one month imprisonment on count 4. His Honour ordered that each sentence be served concurrently, making a total effective term of imprisonment of four years. His Honour fixed a non-parole period of 2 years and 8 months.

5 By his notice of appeal the applicant initially relied on two grounds. However, before this Court the applicant sought only to rely on the second ground, namely, that the learned trial judge erred in law in withdrawing count 3, as an alternative to count 2, from the jury's consideration, and thus deprived the applicant of an opportunity of acquittal on count 2.

6 The offences in respect of which the applicant was convicted arose out of an incident which occurred in St Kilda on 17 January 2005. The background facts may be briefly summarised for the purposes of the issues which are pertinent to this appeal.

7 On 17 January 2005, the applicant drove his partner's motor vehicle to St Kilda. When he was driving in Carlisle Street, he noticed a sex worker, "AB". She got into his vehicle and agreed to have sexual intercourse with him. Initially they intended to drive to some premises in Alma Road for that purpose. However, en route, at the applicant's request, AB agreed that the sexual intercourse should occur in the applicant's vehicle at the St Kilda Marina. When they arrived there, at AB's direction, the applicant parked the vehicle near a service station. There were other people in the vicinity of the vehicle.

8 The applicant turned the engine of the vehicle off. AB told him to get into the back seat of the vehicle, which he did. In the meantime, AB obtained a condom from her handbag which was on the dashboard of the vehicle. She then removed her lower clothing so that she was naked from the waist down.

9 It is at this point that the evidence of the applicant and the evidence of AB markedly differed at trial. According to AB, she removed the condom from its wrapper and turned around to ask the applicant for the money. As she did so, the applicant reached down in the back seat and took hold of a knife. When AB saw the knife she turned back towards the front of the car. At the same time the applicant grabbed her by the hair, pulled her back, put his arm across her throat, and held the knife to her neck. AB grabbed the applicant's hand and pulled it down. In doing so she cut the thumb of her right hand. She was able to break free of the applicant's hold. She kicked open the front door which was unlocked and escaped from the vehicle. According to AB the incident lasted for only a very brief time, which she described as "one or two seconds". When asked at the trial whether the applicant said anything during the incident, she said "nothing", and then said "the only thing that was said was 'shh, shh, calm down. Shh, shh'." She confirmed that evidence in cross-examination.

10 After AB had managed to extract herself from the applicant's vehicle, the applicant drove off. AB's handbag and other belongings, consisting of her clothing and her mobile phone, remained in the vehicle. Those items were the subject of the theft count (count 4), to which the applicant had pleaded guilty on arraignment.

11 After AB had got out of the vehicle, she was comforted and assisted by passers-by. Some of the witnesses stated that AB complained that the applicant had pulled a knife on her, and that she had grabbed the knife with her hand. She told one witness, Ian Spinney, that she had been robbed. Another witness, Barry Schepisi, heard AB screaming "kill" or "rob".

12 When the applicant was interviewed by the police, he denied attending St Kilda on the day in question for the purpose of obtaining services from a sex worker. However, in his evidence at trial he repudiated that version. He said that he had given the police a false version because he was apprehensive as to the reaction of his girlfriend, if she should learn that he had sought the services of a sex worker. In his evidence he stated that when he had parked the vehicle, AB had pulled out a syringe. The applicant said that he had "freaked out" and asked AB to leave the vehicle. AB told him to calm down. In response the applicant opened the car door and pushed AB out of the vehicle.

13 At his trial the applicant was arraigned on all four counts on the presentment, including count 3, the charge of common assault. After the jury was empanelled, and after opening addresses by counsel for the prosecutor and the accused, the trial judge gave preliminary directions to the jury. In doing so, his Honour advised the jury as to the charges which had been brought against the accused. He stated:**

"The three charges are, first of all, false imprisonment and the allegation is that the accused kept (AB) in the car against her will, deliberately, detained her against her will for however short a period. The second charge is a charge of assault with intent to rape and the allegation, as I understand it, is that he held the knife to her throat and that his intention was to rape her, to have sex with her against her will essentially. I will explain that in a little more detail later. Alternatively, if you were satisfied that the assault occurred, but you were not satisfied that his intention was to rape her, there is an alternative charge of assault and there is a fourth charge to which she had pleaded guilty of, as it were, driving off with her purse and some other property I think ... ."

14 Subsequently, at the conclusion of the evidence in the trial, and before counsel commenced their final addresses, the trial judge raised with counsel the status of count 3. His Honour stated that he could not understand how the jury could convict on count 3 if they acquitted the accused on counts 1 and 2, and he asked counsel "what's the scenario?" In response, the prosecutor stated:

"He didn't detain her against her will, but he assaulted her but he didn't have the intention to rape her."

"If they accept her evidence, he grabbed her by the hair and put a knife to her throat, and had his arm around her neck; and you want me to suggest some scenario to the jury where he did all those things, not intending to detain her? It just gets ridiculous. It's an example of loading up presentments, covering every possible base. I think it just weakens the Crown case. It's a totally unrealistic scenario but what you want me to do is to canvass with the jury this possibility: that he didn't intend to keep her there, somehow the pulling of the hair and the pressure of the knife, where she was free to go, she was free to go, no forceful detention of any sort. I'm not going to do it ... it's getting ridiculous ... I'm going to say to the jury that if they acquit the accused on counts 1 and 2, there is no realistic scenario which would enable them to convict on count 3, and they need not return a verdict on that count." (Emphases added).

16 Consistent with that ruling, and before counsel commenced their final addresses, his Honour stated to the jury that he would not require them to return a verdict on count 3. His Honour stated:

"... the reason I've come to that decision is that, having regard to the evidence, it seems to me that if you were to acquit the accused on counts 1 and 2, on both those accounts, there is no realistic scenario which would enable you to convict on count 3."

**17 Counsel who appeared on the appeal (but not at the trial) on behalf of the applicant submitted that the trial judge erred in withdrawing count 3 from the consideration of the jury. He submitted that the alternative encapsulated in count 3 was more than a theoretical possibility. In particular, if the jury accepted, as they did, the evidence of AB, the jury might nonetheless not be satisfied beyond reasonable doubt that the applicant possessed the requisite intent to rape her at the time of the assault. Accordingly, it was submitted that it was the obligation of the trial judge to leave to the jury to consider count 3 as an alternative to count 2. Mr Meredith submitted that in the circumstances it was a miscarriage of justice for the trial judge to have withdrawn that count from the consideration of the jury.

18 In response, counsel for the respondent submitted that the principles stated by the High Court in Gilbert v R[1] and Gillard v R[2] are confined to an obligation by a trial judge to leave manslaughter as an alternative where murder is the principal charge. He submitted that the principles stated in those two authorities do not apply to cases which do not involve a charge of murder. He submitted that, on its proper analysis, the Crown case was an "all or nothing" count. On the account given by AB, the incident occurred in circumstances in which the applicant was seeking sex from a street worker. He submitted that, if the jury was satisfied as to the complainant's account, there was no reasonable basis on which it could not be satisfied, on that evidence, that the accused intended to rape her. The jury were satisfied beyond reasonable doubt as to the account given by AB. In those circumstances the alternative charge of common assault was not available to the jury.

19 Before turning to those submissions, four preliminary points can be made. First, as I have pointed out, after the conclusion of the opening addresses by counsel for the Crown and counsel for the accused, the trial judge informed the jury that count 3 was an alternative to count 2. However, at the conclusion of evidence, in his "ruling", his Honour appears to have considered that count 3 was only included on the presentment as an alternative to count 1. Nonetheless, when his Honour directed the jury as to the effect of that ruling, his Honour spoke in terms that count 3 had, originally, been an alternative to either count 1 or count 2.

20 Secondly, that confusion was no doubt fuelled by what had been put to his Honour by counsel during the trial. At the outset of the trial, and before the jury was empanelled, the accused's counsel had foreshadowed that the accused might plead guilty to count 3, on the basis that his client, on his own version of events, had assaulted the victim by pushing her out of his vehicle. Understandably the trial judge discouraged defence counsel from advising his client to plead guilty to count 3 on that basis. Subsequently, when the trial judge discussed with the prosecutor his view that he should not leave count 3 to the jury, defence counsel did not object.

21 Thirdly, although we do not have a transcript of the final address by each counsel to the jury, the trial judge's charge did briefly summarise the effect of those addresses. On that summary, it appears that the accused's counsel did not argue in his final address that, even if the jury was satisfied beyond reasonable doubt as to the evidence of AB, nonetheless the jury should have a reasonable doubt, on that evidence, that the accused had intended to rape her. It is significant that defence counsel did not take any exception to his Honour's summary of his final address.

22 The fourth preliminary point is that, in his directions to the jury, the trial judge instructed them that, in order to convict the accused on counts 1 and 2, the jury must be satisfied beyond reasonable doubt as to the account given to them by AB. Clearly, by its verdict the jury was satisfied beyond reasonable doubt as to the evidence of AB, and thus rejected the evidence of the accused.

23 In essence, in support of the sole ground of appeal relied upon by the applicant, counsel relied on three propositions, namely:**

On the facts at trial it was open to the jury to acquit the accused on count 2, and to convict him on count 3.
In those circumstances the trial judge therefore had an obligation to leave count 3 to the jury.
The failure of the trial judge to leave count 3 to the jury constituted a miscarriage of the trial.

**24 In my view, the first proposition is well made out on the facts. In his charge the trial judge correctly instructed the jury that, in order to convict the accused on count 2, they must be satisfied beyond reasonable doubt, first, that the accused assaulted AB and, secondly, that at the time of the assault the accused intended to rape AB. There was no direct evidence that the accused intended to rape AB at the time at which AB alleged that he assaulted her. Rather, the Crown case on the second element of the charge contained in count 2 - the intention to rape - depended solely on an inference. Accordingly, the jury could only convict on that charge if it was satisfied that the only reasonable inference on the facts found by it was that the accused intended to rape AB. In support of that inference, the Crown relied on the fact that the assault occurred in the context in which the accused was seeking sex from a professional sex worker, and in the circumstances where AB had already undressed in order to participate in paid sex with the accused. However, it was a matter for the jury whether, from those and the other facts available to it, it was satisfied that the inference relied on by the Crown was the only reasonable inference arising from those facts. As counsel pointed out, the evidence of AB, that the applicant held the knife to her throat while he was in the back seat and she was in the front seat of the car, might be regarded as militating against the inference contended for by the Crown. Further, the statements of AB to the passers-by, Mr Spinney and Mr Schepisi, after the incident, having been put to the jury as evidence of "recent complaint",[3] were capable of being considered by the jury as evidence inconsistent with an intention by the applicant to rape her.

25 The drawing of inferences is essentially the task of the jury.[4] On the facts of this case, it was open to the jury, having accepted AB's evidence, to find that it was not satisfied that the only reasonable inference was that the accused had assaulted her with the intention of raping her. It was therefore open to the jury to be satisfied beyond reasonable doubt that the accused had assaulted AB, but not satisfied beyond reasonable doubt that he did so with the intention of raping her. Accordingly, on the charges on which the accused had been arraigned, it was open to the jury to acquit the accused on count 2, but to convict him on count 3.

26 The second and third propositions, advanced by counsel for the applicant, involve the questions whether the trial judge, in those circumstances, was obliged to leave the count of common assault to the jury, and, if so, whether his failure to do so constituted a miscarriage of the trial.

27 Those questions were decisively answered in favour of the accused in the context of a murder trial in Gilbert v R.[5] In that case the accused had been convicted of murder. It was common ground on appeal that the trial judge had erred in failing to leave manslaughter as an alternative to the jury. The Crown, on appeal to the High Court, submitted that the Queensland equivalent to the proviso in s 568(1) of the Crimes Act (Vic) 1958 did not apply because the jury, having been properly directed as to the elements of the crime of murder, had been satisfied beyond reasonable doubt as to the charge against the accused. Accordingly, it was argued, if the jury had been directed on the alternative charge of manslaughter, they were nonetheless bound to convict the accused of murder consistent with their oaths and consistent with their satisfaction as to the elements of that charge. The majority of the High Court rejected that submission. Gleeson CJ (with whom Gummow J agreed)[6] and Callinan J[7] held that, while it is accepted that juries, consistent with their oaths, adhere to directions given to them to apply the law to the facts, nonetheless in a case of murder the jury's reasoning processes may be affected by an underlying concern as to the consequences of acquitting an accused who was in some degree culpable for the homicide of another person.

28 There is a difference of judicial opinion, contained in the authorities, whether the principles enunciated by the High Court in Gilbert also apply to cases where the principal charge is not that of murder. It is not necessary, in this judgment, for me to rehearse the various decisions, both in the United Kingdom and interstate,[8] for they have already been the subject of detailed discussion by Ormiston JA in R v Kane.[9] The question has been addressed, but not definitively answered, in three decisions of this Court to which it is necessary to make short reference.

29 In R v Doan,[10] the accused, who was convicted on one count of trafficking heroin in an amount not less than the commercial quantity, submitted that the trial judge had erred in failing to leave to the jury the lesser offence of possession as an alternative. The Court of Appeal held that, as the accused's defence to the trafficking charge was based on a denial of any knowledge of the drug at all, the trial judge was not obliged to leave the lesser charge to the jury. In the course of his judgment, Charles JA expressly doubted whether the decision in Gilbert extended beyond cases in which murder was charged.[11] Vincent JA agreed with Charles JA. Batt JA agreed with the decision of Charles JA, but reserved the future consideration of the question of the application of Gilbert to non murder cases.

30 In R v Kane, the accused was presented with three other co-accused on one count of intentionally causing serious injury (count 1) and one count of recklessly causing serious injury (count 2). The charges arose out of an incident in which a fellow inmate had been attacked in prison. In the course of that attack, the victim had been stabbed with a pair of scissors, and had also been repeatedly struck and bashed. The Crown opened the case on the basis that the serious injury could be constituted either by the stab wound alone, or by a combination of all the injuries including that stab wound. However, in his charge, the trial judge directed the jury that they could consider the verdict on the basis that the serious injury could be defined by the stab wound alone, or by the combination of other injuries apart from the stab wound. The principal complaint on appeal was that, in those circumstances, the trial judge erred in failing to leave to the jury, as alternatives, the charges of intentionally causing injury and recklessly causing injury. That ground of appeal was upheld by Callaway JA, with whom Batt JA agreed. In a separate judgment Ormiston JA dissented.

31 In the course of his judgment, Callaway JA referred to the differing views as to the obligation of a trial judge to leave a lesser alternative in a case not involving a charge of murder, and as to the effect of a failure of a trial judge to leave such a lesser alternative, where the jury, correctly instructed, had convicted the applicant on the higher charge. Callaway JA stated that it was not necessary to decide "all" the issues raised by those authorities in order to decide the present case.[12] His Honour held that, in light of the change in the Crown case between the commencement of the trial, and the final directions given by the trial judge, the jury should have been alerted to the possibility of a lesser verdict on each count, if the jury were not satisfied as to the responsibility of the applicant for the stab wound.

32 In reaching that conclusion, Callaway JA referred to the decision of the House of Lords in R v Maxwell.[13] In that case the accused, who had been convicted on a charge of robbery, complained of the failure of the trial judge to leave to the jury an alternative count of burglary. The Court of Appeal, and subsequently the House of Lords, rejected the accused's appeal. However, the House of Lords recognised that there were cases, other than cases of homicide, in which a judge ought to leave a lesser alternative to a jury, in order to safeguard against two dangers. The first danger is that, faced with a false choice between conviction or acquittal of the main offence, the jury would acquit the accused altogether when he should have been convicted of the alternative offence; and the second danger is that, faced with the same false choice, the jury would convict the accused on the more serious offence rather than let him escape with impunity for what was on any view serious misconduct. Having referred to Maxwell's case, Callaway JA stated:[14]**

"In light of the verdict, the relevant danger for this Court is that the jury convicted the applicant on count one because they did not know that it was open to them to convict her of intentionally causing injury. Ms Sexton (for the Crown) submitted that we could have more confidence that the jury performed their duty conscientiously because they did not convict the applicant on count two; 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 one. 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 acquittals. 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 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." (Footnotes omitted)

**33 The issues raised in Kane's case were considered by Nettle JA in R v Saad.[15] In that case the applicant, who had been convicted of murder, complained of the failure of the trial judge to leave to the jury an alternative lesser offence of assisting an offender contrary to s 325 of the Crimes Act. Nettle JA (with whom Chernov JA and Harper AJA agreed) held that the reasoning in Gilbert did not apply to require the judge to leave a lesser charge under s 325 as an alternative to a charge of murder. In reaching that conclusion, his Honour expressed the view that the rule in Gilbert's case is confined to cases of murder, in which the trial judge fails to leave manslaughter to the jury as an available alternative verdict.[16]

34 In order to determine this appeal, it is not necessary for me to enter substantially upon the debate as to the reach of the principles stated by the High Court in Gilbert v R. Notwithstanding the differing views in the authorities, the common thread of those views is that, in certain circumstances, it may be necessary, in a case not involving a charge of murder, to leave an alternative lesser charge to a jury where such a course is necessary in the interests of justice. In particular, it may be necessary to leave such a lesser charge to the jury, where the course of the trial is such that it would be unfair to one or both of the parties not to do so.

35 For that reason, Callaway JA in Kane's case focussed on the important change in the Crown case between its opening to the jury, and the manner in which it was put to the jury in the judge's charge. It was that shift in the Crown case which enlivened the issue whether the injuries, for which the accused was alleged to be liable, were serious injuries. In those circumstances, the majority held that it would have been unfair to the accused to have permitted the Crown to change its case in such a way, without, at the same time, leaving the alternative lesser charge to the jury.[17] It is significant that in his dissenting judgment, Ormiston JA, who considered that the principles in Gilbert are strictly confined to murder cases, nonetheless acknowledged that in a case involving a charge other than murder, the circumstances of the particular case may require the trial judge to leave a lesser alternative charge to the jury.[18]

36 A similar approach is evident in the judgment of Nettle JA in Saad's case. His Honour referred to the decision of the English Court of Appeal in R v Fairbanks.[19] That case concerned the question whether, on a trial of the accused for causing death by dangerous driving, the trial judge should have left the alternative of careless driving to the jury. The Court of Appeal expressed the view that the judge is obliged to leave the lesser alternative "only if this is necessary in the interests of justice". In Saad's case Nettle JA adopted those views. Although his Honour considered that Gilbert and Gillard were each confined to cases in which the offence charged is murder, his Honour nonetheless stated:**

"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 ... ."[20]

**37 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.

38 In this case the count of assault was included on the presentment. Upon arraignment, the accused pleaded not guilty to that count, and thus joined issue on it. At the conclusion of opening, the trial judge correctly told the jury that if it were satisfied that the assault occurred, but not satisfied that the accused's intention was to rape AB, then the alternative charge of assault must be considered by them.

39 Having given that direction, the evidence was then presented to the jury. There was nothing in that evidence which altered the status of count 3. Rather, as I have already pointed out, on the evidence given by AB, count 3 remained as a viable alternative to count 2, should the jury be satisfied beyond reasonable doubt as to the assault, but not as to the intention of the accused. Nonetheless, at the conclusion of the evidence, his Honour explained to the jury that if they were to acquit the accused on counts 1 and 2 there was "no realistic scenario" which would enable the jury to convict on count 3. His Honour then embarked on his charge. In doing so, his Honour correctly pointed out to the jury that there were two elements to count 2, namely, proof of the assault, and proof of the intention of the accused to rape AB. His Honour correctly told the jury that it must be satisfied beyond reasonable doubt as to each of those two elements in order to convict the accused. However, notwithstanding that direction, after instructing the jury as to the elements of count 1 (false imprisonment), the trial judge said to the jury:**

"As I mentioned to you earlier today, there will be no need for you to consider count three or to return a verdict on count three, because if you convict the accused on either count one or count two or both, it will follow that you are satisfied, it seems to me, that the accused assaulted (AB), in which case count three becomes superfluous, so it seems to me. If you acquit the accused on count one and count two, it must follow as a matter of logic, it seems to me, that you are not satisfied beyond reasonable doubt that she has told you the truth, in which event count three would be superfluous. So, it did seem to me that it would be difficult to construct a realistic scenario where you could convict on count three, but not on count one or count two or both."

**40 Pausing there, in my view the explanation given by the trial judge to the jury was incorrect. As I have pointed out, there was a "realistic scenario" in which the jury might acquit the accused on count two and convict him on count three. The problem was then exacerbated by the judge telling the jury that AB was the crucial witness in the case, and that the jury could not convict the accused unless it were satisfied beyond reasonable doubt that her evidence was truthful and reliable. That direction, so far as it went, was correct. In order to convict, it was necessary for the jury to be satisfied beyond reasonable doubt as to the evidence of AB. However, the acceptance by the jury of that evidence was not, alone, sufficient to enable the jury to automatically convict the accused on count two. Rather, the jury also had to be satisfied beyond reasonable doubt, by a process of inference, that the intention of the accused in assaulting AB was to rape her.

41 Two important and interrelated points emerge from what I have discussed so far. First, as I have pointed out, the trial judge erred in withdrawing count 3 from the jury. There was a "realistic scenario" on which the jury might have acquitted the applicant on count two and convicted him on count three. Secondly, compounding that error was the combination of the two statements to the jury, namely, that count 2 was, in effect, an "all or nothing" charge, and, secondly, that the fate of count 2 depended on the acceptance by the jury of the evidence of AB. Those two directions were given by the judge to the jury in the context of the preliminary direction by his Honour to the jury (three days earlier) that count 3 served as an alternative to count 2, in the event that the jury were satisfied beyond reasonable doubt as to the assault, but not as to the intent of the accused. In my view, the combined effect of those matters was to create a real risk that the jury might have misconceived its critical task in evaluating the second element necessary to convict the accused on count 2, namely the proper satisfaction by it as to his intention at the time of assault. Although the trial judge correctly told the jury that that was a second element of the charge on which it must be satisfied beyond reasonable doubt, the other circumstances, to which I have referred, in my view, when taken in combination, were clearly capable of engendering in the minds of the jury the impression that, once they was satisfied as to the evidence of AB, they were entitled, without more, to conclude that the accused was guilty of the charge in count 2. In that way, the decision to withdraw count 3 from the jury operated to obscure the requirement that the jury be satisfied beyond reasonable doubt of the second element of count 2, namely the intention of the accused to rape AB.

42 In those circumstances, it is not necessary to enter upon the question as to the application of the principles in Gilbert's case and Gillard's case to non-murder cases. In this case, the issue was not simply whether the trial judge should have left an uncharged alternative count of assault to the jury. Rather, as I have concluded, the trial judge, having initially explained the function of that count to the jury, erred in removing the count (which was on the presentment) from the jury's consideration, and in explaining to the jury his reason for doing so.

43 Accordingly, it follows that, in my opinion, there was a substantial miscarriage of justice in the trial, within the meaning of the s 568(1) of the Crimes Act. Contrary to the submissions on behalf of the Crown, it was not inevitable that the jury must conclude from the evidence of AB that the accused intended to rape her. As I have stated, the course of the trial, and the circumstances in which count 3 was taken from the jury, were such that it could not be concluded from the jury's verdict that, if count 3 had been left, the jury would nonetheless have convicted the accused on count 2. On the evidence at trial, it was a matter for the jury whether the only reasonable inference from the evidence of AB was that the accused intended to rape her at the time at which he assaulted her. Accordingly, the course taken at the trial deprived the accused of a reasonable opportunity of acquittal on count 2.

44 As I have already stated, counsel for the accused did not object when the trial judge, at the conclusion of the evidence, stated that he would not require the jury to return a verdict on count 3. Nor did counsel take any exception to the parts of the charge given by the judge to the jury, in which his Honour explained to the jury why he was not leaving count 3 for its consideration. Further, as the judge who presided the trial, his Honour was well placed to understand the issues as they unfolded during the evidence, and to form an assessment as to what issues ought to be left for the jury's consideration. Ordinarily those considerations are good reason to hesitate before concluding, in a case such as this, that the course taken at trial has resulted in a miscarriage of justice. Nonetheless, for the reasons which I have set out, I consider that the learned trial judge did err in taking count 3 away from the consideration of the jury, and that his decision to do so has occasioned a substantial miscarriage of justice. For those reasons, I am of the view that the application by the applicant for leave to appeal against his conviction on count 2 should be allowed, that the applicant's conviction and sentence on that count be quashed, and that an order be made for the re-trial of the applicant on that count.**

[3] Cf R v Freeman & Ors [1980] VicRp 1; [1980] VR 1, 6; R v Brdarovski [2006] VSCA 231; (2006) 166 A Crim R 366, [54] (Nettle JA).

[4] R v Cengiz [1998] 3 VR 720, 721-2 (Ormiston JA), 737-8 (Harper AJA).

[8] See: Benbolt v R (1993) 60 SASR 7, 19, 20 (King CJ); 23, 26 (Perry J); 26, 27 (Duggan J); R v Perdikoyiannis [2003] SASC 310; (2003) 86 SASR 262, [50] (Doyle CJ); R v Matthews [2005] SASC 91, [11] (Vanstone J); R v Rehavi [1998] QCA 157; [1999] 2 Qd R 640, 647-8; cf R v Elfar [2000] NSWCCA 255; (2000) 115 A Crim R 64, 70-1 (Sully J), 73 (Sperling J).

[16] Ibid [96]; see also R v Van Xuan Bui [2005] VSCA 300, [76].

[17] [2001] VSCA 153; (2001) 3 VR 542, see esp. [116] (Callaway JA).

[19] [1986] 1 WLR 1202, 1205-6; see also R v Maxwell [1990] 1 WLR 401, 404-5 (Lord Ackner).

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