Glanville Williams, "Alternative Elements and Included Offences" (1984) 43(2) Cambridge Law Journal 290

Glanville Williams, "Included Offences" (1991) 55 Journal of Criminal Law 234

Commissioner of Metropolitan Police v Wilson [1984] AC 242

Gillard v the Queen [2003] HCA 64; (2003) 219 CLR 1

Haoui v the Queen [2008] NSWCCA 209; (2008) 188 A Crim R 331

Pemble v the Queen [1971] HCA 20; (1971) 124 CLR 107

R v King [2004] NSWCCA 20; (2004) 144 A Crim R 405

R v Blackwell [2011] NSWCCA 93; (2011) 208 A Crim R 392

R v Brady and Smythe [2005] SASC 277; (2005) 92 SASR 135

R v Cameron (1983) 8 A Crim R 466

R v Cameron [2001] ACTSC 57

R v Fairbanks [1986] 1 WLR 1202

R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473

R v Jenkins (1877) Knox 295

R v Lillis [1972] 2 QB 236

R v Mandair [1995] 1 AC 208

R v Maxwell [1988] 1 WLR 1265

R v Overall (1993) 71 A Crim R 170

R v Sessions (1997) 95 A Crim R 151

R v Salisbury [1976] VicRp 45; [1976] VR 452

Reid v the Queen (2010) 205 A Crim R 447

Saraswati v the Queen [1991] HCA 21; (1991) 172 CLR 1

Vann v Palmer [2001] ACTSC 12

1. The jury be directed that the alternate verdicts of recklessly inflicting actual bodily harm and illegal act causing grievous bodily harm are available.

1. Mathew Neish, the accused, has been charged with recklessly inflicting grievous bodily harm on Thomas De Launey on 15 October 2010. This is an offence against s 20 of the Crimes Act 1900 (ACT) (the Crimes Act). It is the only count on the indictment and Mr Neish has pleaded not guilty to it. Under s 49 of the Crimes Act, the jury, if not satisfied that Mr Neish is guilty of that offence but is satisfied that he is guilty of certain other offences specified in the table to that section, may find Mr Neish not guilty of the offence charged, but guilty of the offence specified in the table.

2. In respect of the offence charged, the alternative offences for which an alternative verdict may be entered are set out in the table to s 49. They are: "Intentionally or recklessly inflict[ing] actual bodily harm" - s 23 of the Crimes Act; "[B]y any unlawful or negligent act or omission, caus[ing] grievous bodily harm" - s 25 of the Crimes Act; "[B]y culpable driving of a motor vehicle, caus[ing] grievous bodily harm" - s 29(4) of the Crimes Act; - or "[U]nlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to childbirth and before a child is born alive, inflict[ing] grievous bodily harm on the child" - s 43 of the Crimes Act.

3. The Crown has requested that I direct the jury in relation to the first two of the alternative verdicts. The second two obviously do not arise, for there was no motor vehicle involved in the matters that give rise to the charge, nor childbirth. Mr J Pappas, who appears for Mr Neish, has requested, however, that I do not direct the jury in respect of the alternative of recklessly inflicting actual bodily harm. In essence, he says that the case has been conducted on the basis that the harm that Mr De Launey suffered was grievous bodily harm and so I should not leave that alternative to the jury. He made no such submission in relation to the offence of causing grievous bodily harm by unlawful or negligent act or omission. He does not seek that I do not direct the jury in respect of this latter or alternative count.

4. At common law, an accused may be convicted of a lesser offence than that charged. In R v Lillis [1972] 2 QB 236 at 240 Lawton LJ, delivering judgment for the Court, said:

At common law, on an indictment charging felony, the accused could be convicted of a less aggravated felony of which the ingredients were included in the felony charged, and similarly as regards misdemeanours: but except under statute, a conviction for a misdemeanour was not allowed on a charge of felony.

5. See also per Dawson J in Saraswati v the Queen [1991] HCA 21; (1991) 172 CLR 1 at 13.

6. What was actually required at common law has been the subject of different approaches.

7. In Australia, it appears that it is required that the lesser offence must necessarily be included in the definition of the charged offence. That was set out in R v Salisbury [1976] VicRp 45; [1976] VR 452. It has been followed in later cases, including in other Australian jurisdictions: Reid v the Queen (2010) 205 A Crim R 447, R v Brady and Smythe [2005] SASC 277; (2005) 92 SASR 135, R v Cameron (1983) 8 A Crim R 466.

8. It has not been followed in England and Wales: Commissioner of Metropolitan Police v Wilson [1984] AC 242. This decision, despite being followed by the House of Lords in R v Mandair [1995] 1 AC 208, has been criticised by Professor Glanville Williams (Glanville Williams, "Alternative Elements and Included Offences" (1984) 43(2) Cambridge Law Journal 290 at 297 and "Included Offences" (1991) 55 Journal of Criminal Law 234 at 243). It has not, so far, been followed in Australia and seems to have been rejected: Saraswati v the Queen at 13, Reid v the Queen at 451-2; [17]. That, however, does not apply here, for the alternative verdicts are statutorily mandated, and that has always been one of the bases for such a verdict, as is clear from R v Lillis. The statutory provision overcomes the concerns expressed in earlier cases such as R v Jenkins (1877) Knox 295. Thus, the two statutory alternative verdicts being available on the facts, the question is whether I should leave both to the jury.

9. Mr Pappas raises two issues in this context. In the first place, he submits that the trial has been conducted on the basis that the injuries are grievous bodily harm. To introduce the concept of actual bodily harm at this stage he says would be confusing and unfair. Secondly, he says that the alternatives were not open to the jury; that, he submits, is required.

10. Mr M Fernandez, Crown prosecutor, submits that the alternative verdicts are statutorily mandated, available and should be put. He says that the reliance on them was included in the case statement (see R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 at 478-9; [28]- [35]) and that there is no prejudice to the accused.

11. It is common for an alternative count of assault occasioning actual bodily harm to be included in an indictment which charges wounding or recklessly inflicting grievous bodily harm. This is usually because of the uncertainty in a particular case of whether the harm is, in fact, serious enough to constitute grievous bodily harm, where the accused may contend for the lesser degree of harm. That is not the case in this trial. The parties are agreed that the harm constitutes grievous bodily harm. That, of course, does not bind the jury. Indeed the injuries bear an apparent similarity to those held not to be grievous bodily harm in Haoui v the Queen [2008] NSWCCA 209; (2008) 188 A Crim R 331 at 358; [145]. The injuries here were certainly more serious, especially in the long term consequences, than in that case. Thus there may be an issue for the jury as to whether the injuries amount to grievous bodily harm.

12. In addition, however, the present state of the law as to the relevant mental element of the offence also raises an issue. In Blackwell v the Queen [2011] NSWCCA 93; (2011) 208 A Crim R 392 at 408-9; [78], 416; [120], 424; [170], the New South Wales Court of Appeal held that, for recklessly causing grievous bodily harm, the mental element is that the accused must have realised that, by doing what he did, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted as he did. This accords with the direction approved by Crispin J in R v Cameron [2001] ACTSC 57 at [47]. See also Vann v Palmer [2001] ACTSC 12 at [25]. Thus, if the jury are not satisfied that Mr Neish intended or was reckless as to the possibility that his action would cause grievous bodily harm, he could not be convicted of the offence charged.

13. He may, of course, realise that by doing what he did, some harm would be caused. That would be a sufficient mental element for the alternative verdict, which the Crown contends I should leave to the jury.

14. In this event, that the jury may consider that the harm was grievous bodily harm is not to the point. As Lord Roskill said in Commissioner of Metropolitan Police v Wilson at 259:

[T]he allegations expressly or impliedly included in a charge of 'inflicting grievous bodily harm'... must, so far as physical injuries are concerned, at least impliedly if not indeed expressly, include the infliction of 'actual bodily harm,' because infliction of the more serious injuries must include the infliction of the less serious injuries.

It is clear that an offender may be convicted of an offence of personal violence, notwithstanding that the injury was sufficient to constitute a more serious offence, though the sentence imposed must not take account of the more serious harm that would constitute a more aggravated offence. See, for example, R v Overall (1993) 71 A Crim R 170. Indeed, the injuries amounting to grievous bodily harm may, according to that decision, be able to be taken into account on sentencing, as pointed out in R v Sessions (1997) 95 A Crim R 151 at 168 per Eames AJA. Thus, there are two bases, that is, the extent of the injury and the mental element, which would justify leaving the challenged alternative verdict to the jury.

"Unfairness"

15. Mr Pappas, however, suggests, as I have noted above at [9], that the trial has been conducted on the basis that the injuries constitute a grievous bodily harm and so to introduce the concept of actual bodily harm would be unfair.

16. It is to be accepted that the trial has not addressed the issues of whether the harm suffered by the complainant, Thomas De Launey, was grievous bodily harm. Indeed, the medical evidence was tendered by consent in an agreed statement, signed by counsel of both parties; that, of course, cannot bind the jury. It is, however, very relevant.

17. No admission was made as to whether Mr Neish did or might have adverted to the possibility that his actions might cause grievous bodily harm.

18. Indeed, the submission of counsel that the alternative of unlawful act causing grievous bodily harm should be left to the jury, shows very clearly that the issue of the relevant mental element of the charged offence is very much in issue, for that is, in the circumstances of this case, the only relevant difference between the two offences.

19. Mr Pappas drew my attention to two English decisions: R v Fairbanks

[1986] 1 WLR 1202 and R v Maxwell [1988] 1 WLR 1265. It is not necessary to deal in detail with each. It is clear from them that a judge has a duty to leave an alternative verdict to the jury if reasonably open. Thus, in R v Maxwell at 1270, the Court said:

[W]e adhere to the general observations in Fairbanks on the duties of the trial judge. Naturally, the judge is not obliged to leave an alternative offence just because the defence ask for it: see R v Kearney, The Times, 26 April 1988, where it was held that the judge rightly refused to leave manslaughter as an alternative to murder where this was inconsistent with a case advanced by the defendant himself. But in other cases there will be a viable alternative to a conviction on the major offence as charged, and no conviction at all, and if so the judge should leave the jury with a full range of choice. In still other cases there will be no real place for an acquittal: for instance, where a person accused of murder admits an unlawful killing, but maintains that in the circumstances it amounted to no more than manslaughter, in which event the jury should be left only with a choice between verdicts for the greater and lesser offence. The right course will vary from one case to another, but the judge should always use his [or her] powers to ensure, so far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence.

20. Further, in R v Maxwell at 1269 the Court adopted what had earlier been said in R v Fairbanks at 1205-6 as follows:

These cases bear out the conclusion, which we should, in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interest of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case has been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.

We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and jury, and where the possibility of conviction for a trivial offence would be an unnecessary further complication.

On the other hand, the interest of justice will sometimes demand the lesser alternatives left to the jury. It must be remembered that justice serves the interest of the public as well as those of the defendant, and if the evidence is such that he [or she] ought at least to be convicted of the lesser offense, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater.

21. It seems to me that the application of these principles, in the circumstances of this case, favours the position that both alternative verdicts should be left to the jury. Mr Pappas further referred, however, to comments of the New South Wales Court of Appeal in R v King [2004] NSWCCA 20; (2004) 144 A Crim R 405, where Smart AJ, with whom Grove J agreed, analysed the issue in some depth. His Honour (at 416; [57]) initially referred to what Barwick CJ had said in Pemble v the Queen [1971] HCA 20; (1971) 124 CLR 107 at 117, namely:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his [or her] client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves an adequate direction, both as to the law and the possible use of the relevant facts upon any matter, upon which the jury could - in the circumstances of the case upon the material before them - find or base a verdict in whole or in part.

22. Smart AJ, then analysed a number of the cases as to how this principle has been considered, continuing (at 422; [96]-[99]):

It is true that the function of determining what charges should be laid and prosecuted is essentially that of the Executive. This, of course, is subject to some safeguards such as autrefois acquit, the prosecution not being an abuse of process and there being insufficient evidence to support the charge. (Usually, the last mentioned point arises after the Crown evidence at the trial has been completed). Sometimes the Court has to rule on the sufficiency of the charges in the indictment and what the Crown has to prove. Many alternative verdicts are permitted either by the common law or by statute.

If the Crown wants the jury to consider an alternative charge it should open that to the jury. It should not be left to its closing speech or later.

The problem mostly arises where the lesser offence is a viable outcome on the evidence, counsel for the accused does not put the alternative offence to the jury but states that the judge may think it should be put to the jury, or that he (counsel) does not ask or wish it to be put to the jury but that is a matter for the judge. Despite the attitude of the Crown prosecutor and counsel for the accused and their fears of a compromise it may appear to the judge that on the evidence the alternative or lesser offence merits serious consideration by the jury.

While a criminal trial is an adversarial proceeding, the basis of the approach of Barwick CJ in Pemble is that the judge must be astute to secure for the accused a fair trial according to law and that this involves leaving a lesser offence to the jury, even if disclaimed by the parties, where conviction of the lesser offence is a viable outcome. It is in the public interest that alternative verdicts which are open on the evidence be considered so that a correct outcome is achieved.

23. In commenting as his Honour did, especially at [97], his Honour echoed what had earlier been said in R v Cameron (1983) 8 A Crim R 466 at 470 as follows:

It remains necessary only to say this. The availability of the alternative verdict in this present case was raised by his Honour for the first time during the course of an application at the conclusion of the Crown case for a directed verdict in relation to the first count in the indictment. In the normal case where the Crown seeks an alternative verdict, this is a matter which is opened to the jury and litigated by the parties from the commencement of the Crown case. To raise the question for the first time at the conclusion of the Crown case may, in many cases produce an injustice to the accused unless the situation is as clear as it was, for example, in Coughlan's case. It is, we believe, unwise for a trial judge to introduce these matters on his own initiative (cf. Solomon [1980] 1 NSWLR 321; (1979) 1 A Crim R 247).

24. I only pause to comment that the suggestion that the trial judge should not introduce the alternative verdicts seems to need review in light of High Court consideration, especially in Gilbert v the Queen (2000) 201 CLR 414 and Gillard v the Queen [2003] HCA 64; (2003) 219 CLR 1, and in light of the statute. Indeed, Smart AJ (at 425; [110]) summarised the effect of the authorities, including those discussions, later in his Honour's reasoning, as follows:

The judge should leave the lesser offence where conviction on that is a viable outcome even if the accused does not seek that where it is in the interests of justice and in the interests of the accused to do so. This transcends adversarial and tactical considerations.

In deciding whether to leave the lesser offence, the state of the evidence is critical, as Gillard emphasises. The lesser offence is not left to the jury if the evidence in support of it is flimsy or the prospect of a conviction on the lesser offence rather than the major offence is fanciful.

Sometimes the argument is advanced that the accused has obtained an advantage where the lesser offence is not left to the jury, but that argument is unsound. Where it is apparent that the accused has been guilty of serious criminal conduct, a jury would expect to convict an accused of an offence which reflects such conduct. The true issue is, of course, whether the guilt of the accused of the serious offence charged has been proved beyond reasonable doubt. However, a jury may be reluctant, in the circumstances mentioned, to acquit an accused or to find him guilty of a comparatively minor offence, even if the proofs of one element of the serious major offence are a little less than compelling.

When adverting to the question of "advantage," a realistic view has to be taken of what the evidence establishes. Theoretical advantages are of little use and can be disregarded. It is not of much moment that the accused or his counsel thinks it may be to the accused's advantage for the alternative offence not to be put if that view is based on an unrealistic view of the evidence.

26. Returning to the issue raised by both Smart AJ and in R v Cameron (1983) 8 A Crim R 466 about the Crown's opening, I note that, despite what Smart AJ said (at 422; [97]), referred to above (at [22]), his Honour, in summary of the authorities, said (at 425; [110]):

If the Crown wishes to the jury to consider the alternative placed in the event of them finding the accused not guilty of the principle offence the Crown must open the alternative offence to the jury.

I have been unable to find, in the time available to me, where, on the authorities, the "should" in [97], has become a "must" in that summary.

27. I need also to take into account that s 49 of the Crimes Act enacts a legislative direction to permit the statutory alternatives to be considered by the jury. The form of the section implies a legislative wish for the jury to consider the alternatives. Clearly this must be subject to them actually arising, as the two alternatives I have dismissed could not, as noted above (at [3]). It is also subject to the overriding need for fairness, which is clear from the authorities. Yet, it does seem to me that the section favours what is clear, namely, statutory alternatives recognised as such by specific enactment.

28. As Mr Fernandez noted, and I have noted above at [10], the alternatives, while not opened to the jury, were clear on the case statement. Indeed, Mr Pappas stated that he had informed the Crown before the trial that he was proposing to argue that the alternative of recklessly inflicting actual bodily harm was not available. That would be a reason for the Crown not to open on that issue. It may be that there should have been an argument conducted prior to the opening by the Crown about this issue so that the matter could properly be resolved. Neither party raised that issue with me. Indeed, it was only when I raised the question of the relevant mental element in the offence charged (which I had based on what Hunt CJ at CL had said in R v Overall at 177-8) and whether, given that approach - subsequently overruled in R v Blackwell - that issue was ventilated.

29. As I have noted above (at [10]), the Crown submitted that there was no prejudice to the accused. None was referred to or submitted to be prejudice suffered by the accused. I have given anxious thought to this matter. It is not an easy one to resolve, but I have considered all the matters to which I have referred.

30. I am of the view that it is appropriate, in this trial, that both available alternative verdicts - namely recklessly inflicting actual bodily harm and illegal act causing grievous bodily harm - should be left to the jury. I will direct them accordingly.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Ben Aulich & Associates