Regina v King

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0001 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

60309/03 GROVE J SMART AJ DAVIDSON AJ Friday, 20 February 2004 Regina v MATHEW JAMES KING

GROVE J: I have had the opportunity of reading in draft form the judgments of Smart AJ and Davidson AJ. As they are not in agreement as to the outcome of the appeal I should express reasons for my own conclusions. This can be done relatively briefly as I adopt, gratefully, the detail of facts and issues collated by Smart AJ.

Ground 1 asserts that the learned trial judge was in error in refusing to direct the jury or leave open to them a verdict of robbery on the indictment which charged armed robbery. Pemble v The Queen 1971 124 CLR 107 stands as authority for the proposition that a judge must be astute to secure for an accused a fair trial according to law which includes, where appropriate, irrespective of the tactics adopted by counsel, a necessity to instruct a jury upon possible facts leading to an available outcome in addition to a count specifically charged.

In R v Elfar 2000 115 A Crim R 64 Sperling J, rejecting an argument that all alternative lesser offences prescribed by law must be left to the jury in every case, commented that different considerations applied to murder and manslaughter because of historical concepts to do with a single crime of unlawful homicide. Mason P, however, expressly stated that he had no difficulty in accepting that Pemble extended beyond the field of murder/manslaughter. Sully J, the third member of that Bench, did not find it necessary to express a view on the matter I do not consider Elfar establishes that the principle expounded in Pemble is limited to cases of homicide.

In Elfar doubt was expressed about the correctness of R v Rehavi 1999 2 Qd R 640 where a conviction for doing grievous bodily harm was substituted for a jury finding of doing grievous bodily harm with intent when, at trial, counsel had agreed and the judge acquiesced in leaving to the jury only the alternatives of conviction of the more serious offence or acquittal on the indictment.

We now have the advantage of two subsequent decisions of the High Court: Gilbert v The Queen 2000 201 CLR 414 and Gillard v The Queen 2003 78 ALJR 64 which offer guidance. Both of these cases involved charges of murder and the possible alternative verdict of manslaughter. Agreeing, as I do with the observation of Mason P in Elfar that Pemble is not limited to charges of murder, I consider those later cases clearly establish that where there is on the evidence a viable case of an available verdict of guilty of a lesser offence than that charged, failure to give an appropriate direction can amount to an error of law

The issue is whether there was such a viable case, and therefore a requirement for direction in the present circumstances. It is plain that at trial counsel was seeking a verdict of guilty of stealing, that simple larceny claimed to be evidenced in a spontaneous "snatch and grab". Counsel, in address, however did not ignore the more serious alternative. He is recorded as saying: "In my submission to you you will not be satisfied beyond reasonable doubt, which is the requirement and the standard of proof which the Crown must satisfy that on the evidence that the accused is guilty of either armed robbery or unarmed robbery." (T241)

During an adjournment and in the absence of the jury the matter of alternative verdicts was raised. Her Honour pointed out that the appellant had not made any admission of robbery. This was accurate. He had given evidence admitting only to larceny. However the response by counsel was, in my view unambiguous. He said: "My submission, it's against the interests of my client of course, but in the interest of assistance to the court is that at common law, robbery simplicita (sic) is an alternative to armed robbery." (T258)

I understand the reference to the interests of the client to say no more than that he was not seeking to be convicted of robbery, he was seeking to be convicted of the still lesser offence of stealing.

The transcript shows that the Crown Prosecutor expressly agreed that there were two available alternative verdicts of either robbery or larceny. Her Honour ruled that the appellant would have "to have been charged on the indictment" to entitle the jury to bring back a verdict of robbery. This view was incorrect and that is conceded by the Crown. The agreement of the prosecutor at trial with the submission by the appellant's counsel that two alternative verdicts were available was correct.

There was vigorous argument, and evidence from the appellant, about whether he was armed with a screwdriver and had threatened the victim with it. I am unable to agree with the assessment by Davidson AJ that there was no element of violence or threat of violence in the words or conduct of the appellant apart from what he did with the screwdriver.

It is true, of course, that in his evidence the appellant did not concede that he put the victim in fear but there was ample evidence that she was in fact in that state, there was evidence of her flight to the neighbour and request for assistance as well as observation of her condition by police who arrived shortly after the incident. It would have been well open to the jury to conclude that it was necessarily threatening conduct of the appellant which induced those states of affairs.

I consider that the alternative verdict should, in those circumstances, have been the subject of jury direction. I do not say that a judge is obliged to direct on every alternative lesser offence available at law in every case. Sperling J's caution against a "veritable cascade of lesser offences", is an instructive metaphor. Whether, in any case an alternative of lesser offence should be the subject of direction involves assessment of the way in which the case has been presented in court as well as the evidence. The juxtaposition between a grave offence charged and a technically available alternative which may be so trifling as have potential to distract a jury or, in short, prejudice the interests of justice from the point of view of both prosecution and accused: cf R v Fairbanks 1986 1 WLR 1202 should also be assessed.

In the present case there was an available basis in the evidence upon which the jury might have convicted of robbery simpliciter rather than armed robbery. The conduct of the case involved a specific challenge to the assertion that the appellant was armed, the need for direction was expressly raised and the decision to refuse to give the direction was founded upon an erroneous view that an additional count in the indictment was essential. That combination of circumstances places the case into the category of those where the absence of direction deprived the appellant of a fair chance of being convicted of the lesser offence.

I agree with Smart AJ that ground 1 should be sustained.

The notice of appeal raised four further grounds.

Grounds 2 and 3 asserted error in permitting certain evidence by way of re-examination of a Detective Senior Constable Scott. The topic was the reporting of the incident to police via either the alarm company or the neighbour, Mrs Isaacs. Ultimately, this matter was not controversial and senior counsel for the appellant (who did not appear at trial) conceded that neither of these grounds would attract the intervention of this court.

Ground 4 complained of the adequacy of a Jones v Dunkel direction given by her Honour. Particular reference was made to Mrs Isaacs to whose home the victim had fled. Mrs Isaacs was not called. Her Honour had given a direction in standard terms including a warning that the jury should not speculate about what Mrs Isaacs might have said if she was called. However, when dealing with evidence concerning a police report, entry of which referred to the offender being "possibly armed with a screwdriver" the jury were told that an inference was open that the police could only have been informed of this possibility if the matter had been conveyed to them through Mrs Isaacs. That this inference was available emerged from evidence elicited in cross examination by counsel for the appellant directed to both the victim and Detective Senior Constable Scott for the apparent forensic purpose of demonstrating inconsistencies in the complaints of the former and the qualification ("possibly") concerning the presentation of a screwdriver. No redirection was sought. Rule 4 applies. I would not sustain this ground.

The final ground asserted that the trial judge gave inadequate and confusing directions on lies as consciousness of guilt. The Crown Prosecutor in this Court candidly acknowledged that the directions regarding lies were "not without blemish". The particular lies relied upon as evidencing consciousness of guilt were not identified: R v Fowler [2003] NSWCCA 321. It does not cure the defect to observe that the prosecutor had identified three particular lies in his address to the jury.

It was not disputed that, when arrested, the appellant told lies to police. He admitted these lies in his evidence in chief. It is therefore submitted that the jury may have been confused by the incantation of routine direction about being satisfied that the appellant told deliberate lies when he himself had testified that that was the case Her Honour did refer to the appellant's admission and his explanation for telling lies and, although I agree with the concession that there was a "blemish" in failing to identify the particular lies, I would not regard that as a reason for intervention by this Court. The way the case was conducted was a sharply defined contest between a robbery at the point of a screwdriver and an opportunistic theft. In so doing I do not ignore the onus of proof nor the availability of robbery simpliciter as discussed in relation to ground 1.

SMART AJ: Matthew James King appeals against his conviction of armed robbery and seeks leave to appeal against a sentence of imprisonment of 11 years commencing on 16 September 2001 with a non-parole period of 8 years and 3 months expiring on 15 December 2009.

The Crown alleged that around 5am on 13 September 2001 the appellant entered the Lisarow newsagency and robbed Patricia Martin of a quantity of cigarettes and money whilst being armed with an offensive weapon, namely a screwdriver. The appellant's fingerprint was found on the handset of the public telephone outside the newsagency. He used that telephone shortly before the alleged robbery.

The appellant admitted taking the money and cigarettes but denied threatening Mrs Martin. He did not deny that he was guilty of larceny. He insisted that what happened was no more than an unarmed snatch and grab.

It is necessary to summarise briefly the evidence of Mrs Martin. She opened the shop about 2am on 13 September 2001 and about 4.15am a regular customer, Mr Dave Wilson, came to have a cup of tea and toast before he went to work. About 4.45am she saw the appellant using the phone in the phone booth outside the newsagency. She did not recognise the appellant as one of her regular customers and asked Mr Wilson to stay a little longer.

On two occasions the appellant entered the shop and asked for change for the phone booth and this was provided. Mrs Martin and Mr Wilson went outside the front door of the shop and saw him talking on the telephone. She thought that the appellant seemed "OK" and she anticipated that people would be coming through shortly. Accordingly she told Mr Wilson "Look, I'll be right, you go." Mr Wilson left.

When Mr Wilson left Mrs Martin started to go back into the shop. The appellant came out of the booth and they chatted for about five minutes. Amongst other things he told her that he was ringing his girlfriend to come and pick him up. He followed Mrs Martin into the shop. Mrs Martin said that the appellant then went outside and that there was a car coming up the driveway. He signalled to her at the front of the shop; she went inside again. She attended to the magazines and was straightening them up. She said that the appellant walked back into the shop, stood at the counter and had his hand over the till. When she asked him what he was doing, he just glared at her. She walked up and was moving behind the counter. He said "Don't press that fucking button." She pressed the alarm button which was located under the counter.

He said "You've gone and pressed the fucking button." As he said that he walked around the counter towards her. She said that he had a screwdriver in his hand and lifted it almost to ear level. She was right in front of it. She estimated that they were about two feet from each other. She was able to slip past him and ran out the front and to the house next door. She spoke to Shirley Isaac who lived there and asserts that she said "I'm being robbed, there's a man in there with a screwdriver, he's robbing me." Shirley Isaac telephoned the police. Mrs Martin went back towards the shop and saw the appellant at the register behind the counter. She said that she saw the appellant leave the shop and the headlights of a car up the side driveway.

Mrs Martin said that when he left the shop the appellant was carrying the cash register drawer, and his arms appeared to be full. The engine of the car was running. The appellant got into the passenger side seat and the car drove off. She said that the handset was off the telephone in the shop; the telephone had rung previously and the appellant had picked it up. The whole drawer had been taken from the cash register and a tray full of cigarettes and tobacco was missing.

When asked to describe the screwdriver Mrs Martin said "It was just a squiggle thing and I didn't see the handle, I just saw the end bit." She indicated some sort of curly line and said that there was a little flat bit on the end of it. Mrs Martin described the screwdriver as "a normal household screwdriver." She said that it was pointed at her. Mrs Martin did not see any other person but the appellant coming in and out of the newsagency. She was cross-examined about discrepancies between her evidence in court and what she told the police on 14 September 2001. Mrs Martin said that while the appellant stood and talked to her he had nothing in his hand and she did not think that he was wearing gloves.

Mrs Martin was cross-examined to the effect that the appellant never told her not to press the button and that he had not remonstrated with her after she had pressed the button. She adhered to her version of events. She insisted that the appellant did produce a screwdriver. She added "that's why I ran out the shop because he had it pointed at me." She was cross-examined that she did not say anything to Mrs Isaac about being threatened with a screwdriver and that there was nothing about that in her statement. Mrs Martin asserted that she did mention the screwdriver to Mrs Isaac but agreed that there was nothing in her statement indicating that she had done so.

Mrs Martin was cross-examined that in her statement of 25 September 2001 she had said "the blade of the screwdriver is the only part that I could see, it had a rounded point not a straight edge." In her evidence in chief she had said that the screwdriver had a straight edge. Mrs Martin said that in her statement which included the words "it had a rounded point not a straight edge" she meant "the blade was rounded not the flat part". She added "I meant the blade was not a straight blade, it was rounded a squiggly thing. Because I was asked whether it was a shiny white screwdriver or one that had been used or and it was just a screwdriver like you'd have at home that you use."

Mrs Martin was also cross-examined about her statement that she could not tell if the appellant was still in the shop or not and she did not want to go any closer. Mrs Martin insisted that after she left the shop and spoke with Mrs Isaac she saw the appellant in the newsagency. She agreed that she said nothing in her statement about pacing backwards and forwards while the appellant was in the shop, but says that this was what happened. Mrs Martin agreed that in her statement of 14 September 2001 she made no reference to the appellant going behind the counter. She said that the appellant was behind the counter. She agreed that in paragraph 4 of her statement of 2 October 2001 she had not made any reference to seeing the appellant go behind the counter. Mrs Martin pointed out that she had mentioned this fact in the addition to her statement on 21 February 2002.

Mrs Martin agreed that in her statement of 14 September 2001 she did not mention that she had seen the appellant either in the shop or carrying the cigarettes away. However, she stated that her statements as to seeing the man in the shop and carrying the cigarettes away were correct. Mrs Martin explained that to push the button she had to go behind the counter and that she never saw the screwdriver until after she had pushed the button. She said that the appellant did not have the screwdriver in his hand when he had his hand over the till.

Mrs Martin stated that the appellant could have intercepted her before she got to the counter and that there was no obstruction of her passage to the counter.

Mrs Martin insisted that there was about $2000 in the till. She disagreed with the appellant's statement that it only contained $114. The description which she gave of the cigarettes taken exceeded noticeably the quantity which the appellant claimed he had taken. Mrs Martin maintained that there was a driver in the car that came to collect the appellant, but she was unable to tell whether the driver was male or female. She said that she did not suggest to the police that there were two male offenders. She agreed that the description of the offender which she gave to the police shortly after the incident differed from that contained in one of her statements. She conceded that she had told the uniformed police officer that she saw the appellant reach over the counter and press the button. She explained that the appellant had his hand on the button. She said that she saw the screwdriver when she was coming out from the counter. She appeared to accept that she did not tell the uniformed police that the appellant moved towards her, although she asserted this was the case in her statement of 14 September 2001. Her explanation was that the uniformed police probably didn't ask her about the matter. It appears that she did not tell the uniformed police that the appellant had walked behind the counter.

Counsel for the appellant put to Mrs Martin that at no time did the appellant threaten her. She replied "He held the screwdriver I had to run past it." Mrs Martin insisted what occurred was more than a snatch and grab. There was nothing she could do to stop the appellant taking her money and cigarettes and that is why she pressed the button for assistance. She affirmed that as the appellant came around the counter he produced a screwdriver and that frightened her so much that she ran.

Mrs Martin agreed that Mrs Isaac cautioned her about going back to the shop but that she went back to see if he was still in there. Although there were a number of discrepancies between the statements made by Mrs Martin and her evidence and also between the statements, the central message was clear. She saw the appellant at the till endeavouring to take her money; she queried what he was doing, she went behind the counter and pressed the alarm button (which went back to a security firm) and as she moved round the counter and he moved forward he was very close to her and produced a screwdriver. She was very frightened and ran past him and went to her neighbour's home. The neighbour summoned the police. Further, a car arrived to collect the appellant and he was driven off in it. What appears to have happened is that as Mrs Martin was pressed for further details she recalled some of them and her subsequent statements were fuller. In her evidence she accepted that some of the details in her statements were either incorrect or incomplete. The jury may well have taken the view that Mrs Martin was likely to have been very upset by her encounter with the appellant and that the core of her evidence was correct. There was no identification problem and the appellant conceded that he was in the shop and did a snatch and grab.

Snr Cons Scott attended the scene with Cons Vidler about 5.20am on 13 September 2001. He said that Mrs Martin was shaking and had been crying. She spoke nervously and was in a state of shock. The COPS report of 13 September 2001 was compiled by him in conjunction with Cons Vidler and contained a statement that the person of interest was possibly armed with a screwdriver. Det Sgt McLaughlin, a fingerprint expert, gave evidence that the fingerprint on the telephone handset in the phone booth outside the newsagency was that of the appellant.

In her discussion with Snr Cons Ashby and Fitzsimon shortly after 7am on the morning of the robbery Mrs Martin gave an account which corresponded in substance with her evidence. Snr Cons Ashby's notes read: "He walked in door leant over and opened till, what are you doing. Went behind counter to press alarm button. Don't press the fucking alarm button, pressed alarm. Produce screwdriver."

Det Snr Cons Buddeke explained that the third statement from Mrs Martin was not taken on two occasions but one He went to the newsagency on 21 February 2002 with his laptop computer. He could not open a new pro forma statement on the laptop and had to work from an old statement which was already created and delete and mix around the name and headings so he could type out a statement for her which the computer would accept. This already created document bore the date of 2 October 2001 when the actual date on which the statement was taken was 21 February 2002. As to paragraph 5 of the statement he did not know why it came out in a different font. The evidence of Det Buddeke neutralised a portion of the attack made on the credibility of Mrs Martin.

In his evidence at the trial the appellant said that he drove a blue hire car to the telephone booth near the Lisarow Newsagency. He parked that car in the driveway of the lawn mowing shop which was next to the newsagency. He used the telephone booth and in the process of doing so twice went into the shop to get change. After completing his phone calls he returned to the newsagency to thank Mrs Martin for giving him the change and spoke with her for a couple of minutes. He said that a car did not pull up nearby.

The appellant said that he noticed that the cash register was easily accessible. He made a decision to reach over and open the cash register. He intended to take the money out of the till and run. He said that he commenced to do that, that after the noise of the drawer opening she asked him what he was doing and that he replied that he was taking her money. He said that nothing was said in relation to the alarm button. He denied that he held anything in his hand. He said that two hands were needed to take the money out of the till, that he had neither a screwdriver nor any other weapon and that he did not threaten Mrs Martin in any way. He stated that he had no intention of stealing any money until he was in the shop for the second time, that the lady moved slowly towards him and "just sort of walked towards her counter and then sort of veered off and went outside."

After Mrs Martin left the shop he continued to take the money drawer out of the cash register, noticing that there wasn't very much money in it. He took some 20 packets of cigarettes and 7 packets of tobacco. He denied removing any money box. He went to the car, put the stolen property on the passenger's seat and drove away. There was just himself in the vehicle. He later counted the money, the amount taken being $114.

In cross-examination the appellant conceded that he had given a very different version of events to the police during his record of interview. He insisted that a police officer had told him that there were two people involved so he thought he "could more or less pass the buck on to somebody that wasn't even there." He agreed that as he did not want to get into trouble he started telling lies.

The Crown Prosecutor took the appellant through his record of interview at some length. There were a considerable number of lies, many on material matters. The second male was stated by the appellant to be a man known as Dazza. The appellant agreed that he told the police that Dazza was going to use a tool or some other implement in the robbery. The appellant agreed that this was "a make believe story."

Throughout his cross-examination the appellant asserted that he stole money and cigarettes from the shop, that he did not rob anybody or hurt anyone and had no intention of doing so. He was adamant that he did not hurt anyone with a screwdriver or threaten anyone.

Appeal Ground 1 reads: "The trial judge erred in refusing to direct the jury on or leave open the verdict of robbery."

The appellant submitted that there was a real issue whether he had or had not been armed with an offensive weapon. Mrs Martin had been cross-examined directly that the appellant had not been so armed and he had given evidence to that effect. Further, there were the omissions from her earliest formal statement of any reference to a screwdriver.

Before the Crown Prosecutor commenced his address, counsel for the appellant submitted that a verdict of stealing was open on the evidence. At T227 counsel for the appellant submitted that upon the indictment for robbery there may be a conviction for simple larceny. The Crown immediately conceded that the jury had the power to bring in a verdict of simple larceny under the common law.

At T240 after the conclusion of the Crown Prosecutor's closing speech the judge ascertained that the Crown was seeking a direction as to lies. The judge stated that with respect to the alternate verdict she understood that she was required to indicate to the jury the elements of stealing.

Counsel for the appellant commented that the statutory alternative to armed robbery was robbery or larceny. The Crown agreed that was so. (This was later corrected, that is, the alternative verdicts were at common law). After counsel for the appellant had completed most of his address there was further discussion between the judge and counsel in the following terms: "Her Honour: Mr Brown when we were discussing earlier the alternative verdict, you referred to a statutory alternative verdict.

Brown: Yes, my friend alerted me to that. If I did, what I am suggesting or what I submit as a matter of law is that the alternative verdict of robbery simpliciter is at common law not by statute.

Her Honour: I thought you were talking about it being an alternate verdict of larceny as opposed to robbery

Brown: I believe that there is an available alternative verdict as to larceny also.

Her Honour: So you believe there are two alternative verdicts then? Robbery simpliciter or larceny.

Crown Prosecutor: I agree with that, your Honour. … Her Honour: The robbery you say is putting her in fear by glaring at her?

Brown: I'm saying it is available but I'm not suggesting that - I'm suggesting the evidence certainly doesn't establish that but the elements of robbery without being armed

Crown Prosecutor: The Crown case of course, your Honour is that there was a screwdriver and that's the Crown case. Her Honour: I disagree with that and I'll come back to it. The only admissions made by the accused are in respect of a larceny not a robbery. There's no statutory alternative to 97(1) being armed robbery of just robbery It seems to me that the only options available are either guilty or not guilty on the indictment or the admissions that he's made with respect to larceny, not robbery simpliciter.

Brown: I hear what your Honour says about that. I think the position in law as I understand it is this, that armed robbery of course is based on the possession of whether the dangerous or offensive weapon but there could still be a robbery if there was no - if the jury wasn't satisfied --

Her Honour: And he's not making an admission to robbery

Brown: I understand that. My submission, it's against the interests of my client of course, but in the interests of assistance to the Court is that, at common law, robbery simpliciter is an alternative to armed robbery.

Her Honour: Well I'd need some authority in that because that's certainly not my understanding of it Mr Brown.

Brown: Thank you your Honour. Certainly it's to the advantage of my client --

Her Honour: I know it's to your (sic) advantage of your client.

Crown Prosecutor: I was of the same view as Mr Brown, that the elements of the robbery are within the armed robbery. The only difference being that there's an offensive weapon used in one and not the other.

Her Honour: But he's not charged in the alternative.

Her Honour: And 97(1) is armed robbery. It's not a 94. Had he been charged under 94 of course there's no weapon but under 97(1) there must be a weapon. If they're not satisfied that he was armed then he's entitled to a not guilty verdict and on my reading of the cases last night it doesn't extend to robbery. He would have had to have been charged on the indictment on robbery simpliciter to entitle the jury to bring back a verdict on robbery.

Her Honour: It may well be that I'm wrong but that's certainly my understanding of the cases that I read last night and that's the way I propose to sum up to the jury.

Brown: I don't want to say anything about that, I mean I've just indicated what my understanding is in relation to the matter. If a benefit flows there then so be it." 52. The judge summed up in accordance with her stated intention and the jury were not told that they could convict of robbery if they were not satisfied beyond reasonable doubt that the appellant was armed with an offensive weapon. There was a conflict of evidence as to whether the appellant was so armed. Robbery involves putting the victim in fear and there was a strong Crown case of robbery, even if the jury were not satisfied that the appellant was armed with an offensive weapon.

53. Both the appellant and the Crown accepted as this Court does that at common law robbery was an alternative verdict to armed robbery. This has not changed even though the appellant was charged under s.97(1) of the Crimes Act 1900. The position is discussed in R v Cameron (1983) 2 NSWLR 66 at 67-70. It is a pity that the judge was not referred to this decision as she was seeking references to authority
54. The judge appeared to think that before robbery could be left to the jury a count of robbery had to be included in the indictment. In Cameron at 71 this Court said: "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 R v Solomon [1980] 1 NSWLR 321."

Those remarks deal with the situation where the Crown wants a particular alternative verdict left. That is not the present case. The Crown case was one of robbery while armed with an offensive weapon. The appellant's primary case was that he was guilty of no more than larceny. However, from the cross-examination of the complainant and the evidence in chief of the appellant an issue was being raised whether the appellant was armed with an offensive weapon. For understandable tactical reasons counsel for the appellant did not want to suggest the alternative of robbery to the jury or to have the judge indicate that the appellant had sought that the jury be told of the alternate verdict of robbery.

In the circumstances of the present case the Court leaving the alternative of robbery was very much in the appellant's interest. This was what counsel for the accused had in mind when he pointed out that robbery was an alternate verdict. Looked at realistically there was little prospect of the appellant only being convicted of larceny. If there was going to be an alternative verdict, it would have been one of robbery.

In Pemble v The Queen 124 CLR 107, the trial judge in a case where the jury would have been entitled to return a verdict of manslaughter, directed the jury in terms of murder alone. At 117 Barwick CJ said: "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client the trial judge must be astute to secure for the accused a fair trial according to law. This involves … 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."

All the justices agreed that the summing-up was inadequate and that the verdict of murder could not stand. The principle propounded by Barwick CJ has since been applied. It was submitted that there was no reason to justify the failure to leave the alternative charge of robbery in the present case.

The remarks of Barwick CJ in Pemble followed his earlier remarks and those of other Justices in Gammage v The Queen (1969) 122 CLR 444.

In Gilbert v The Queen (2000) 201 CLR 414 it was common ground on appeal that on the view of the facts for which the defence contended the appellant could be found guilty of manslaughter. The trial judge instructed the jury that there was no such possibility. The appellant was convicted of murder. The question for decision was whether a substantial miscarriage had occurred. On this issue the Queensland Court of Appeal divided.

The Crown in Gilbert contended that the jury having been correctly instructed on the elements of murder the verdict demonstrated that they were satisfied of all the elements of murder. The Crown there relied upon this proposition in R v Evans & Lewis [1969] VR 858 at 871: "If the trial judge correctly instructs the jury on the essential elements of the crime of which the appellant is convicted and fully and fairly puts to the jury the defence set up by the appellant the verdict of guilty amounts to a finding by the jury of every essential element of the crime and if those findings negate a verdict of guilty of a lesser offence then the verdict cannot be disturbed by a suggestion that the jury might have found him guilty of that lesser offence if the judge had informed them they were at liberty to do so."

After referring to this passage, Gleeson CJ and Gummow J in Gilbert observed (at 419) that that proposition repeated what was said by the majority in Ross v The King (1922) 246 at 254. At 429 Gleeson CJ and Gummow J continued (references omitted): "In R v Elliott and Hitchins , Lee J, with whom Street CJ and Enderby J agreed, examined the Australian authorities and considered the relationship between Ross and Pemble. He said: 'The cases on provocation … exemplify the true basis in law upon which a verdict of murder will be quashed if manslaughter has not been left, and that basis is: where, in addition to the facts upon which the murder verdict can be seen to rest, there are other facts which would permit a verdict in manslaughter, then the verdict of murder cannot stand if manslaughter has not been left.' Lee J considered that the principle in Ross , qualified as stated above, still had a role to play, and meant that 'the giving of a verdict that in fact represents the jury's view as to what is the proper verdict on the evidence put forward can never be regarded as an unfairness to the accused.' As will appear, the Supreme Court of Canada has taken a different approach." 63. Gleeson CJ and Gummow J discussed the statements of principle in Mraz v The Queen (1955) 93 CLR 493, and at 422 wrote: "These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences. … To adopt the words of Fullagar J, a jury may be hesitant to acquit, and may be glad to take a middle course which is offered to them.

The Supreme Court of Canada in R v Jackson [1993] 4 SCR 573 … declined to apply the proviso where a jury, having been inadequately directed on manslaughter, but correctly instructed on the elements of murder, convicted the accused of murder." 64. The Supreme Court of Canada held that one could not be satisfied that the verdict was just, given the failure of the trial judge to set out the basis for convicting the accused of manslaughter. The test formulated in that Court's judgment for the application of the proviso was whether it was clear that a jury, properly instructed, would necessarily have returned a verdict of murder. Gleeson CJ and Gummow J agreed that such a question must be asked in order to determine whether there has been a miscarriage of justice.

Callinan J in a separate judgment took substantially the same view as Gleeson CJ and Gummow J and joined with them in ordering a new trial. At 439 Callinan J appeared to accept that there is no universal proposition that the fact of conviction of a greater offence is always a good answer to a complaint of failure to direct the jury that a verdict of a lesser offence is available and the further proposition that there may be some cases in which a conviction may be set aside even though at first sight it might appear that the verdict which has been given negatives the commission of a lesser offence.

Callinan J at 441 held that Evans & Lewis and other decisions to the same effect were all cases in which the appellate courts thought that the verdicts of guilty on the greater charge were inevitable.

At 441 Callinan J further wrote: "It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice."

McHugh and Hayne JJ in separate judgments dissented in Gilbert. In Gilbert at 423-4 McHugh J adopted the approach taken in Ross and Evans& Lewis and the reconciliation of the principles by Lee J in Elliott and Hitchins. McHugh J placed emphasis on the jury acting on the evidence and in accordance with the trial judge's directions. Hayne J adopted a broadly similar approach and attached weight to the jury doing its duty conscientiously.

In Gillard v The Queen [2003] HCA 64 the appellant was convicted of murder. The trial judge failed to leave manslaughter as a possible verdict. The principal questions for decision were whether, on the facts there was a viable case of manslaughter to be left to the jury and whether it was clear that a jury, properly instructed, would necessarily have returned a verdict of murder.

In their joint judgment [par 26] Gleeson CJ and Callinan J held that there was a viable case of manslaughter to be left to the jury. They next considered whether there had been a substantial miscarriage and said [par 27]: "Gilbert decides that it is not an answer to the appellant's argument to point out that, since the jury were properly (albeit conservatively) instructed on the elements of murder, and since they convicted the appellant of murder, there is, on that account alone, no miscarriage of justice. … The jury were wrongly deprived of an opportunity to consider an intermediate position."

Gummow J held that the judge erred in law in not directing the jury that manslaughter was an available outcome. Gummow J referred with approval to the earlier quoted remarks of Callinan J in Gilbert at p441.

Kirby J was also of the opinion that manslaughter was an available outcome and that the proviso should not be applied.

Hayne J held that it had been open at the trial for the jury to conclude that the accused was not guilty of murder or attempted murder but was guilty of the manslaughter of the two victims who had died [par 106]. Hayne J stated [par 107]: "It cannot be said that there has been no substantial miscarriage of justice unless it is right to have regard to the findings of fact which, consistent with the proper application of the directions in fact given at the trial, the jury must have made to reach the verdicts they did. The decision of Gilbert v The Queen, the correctness of which was not challenged by either party, precludes that line of reasoning."

Later Hayne J said [par 133] "It follows from what was decided in Gilbert that, in deciding here whether no substantial miscarriage of justice has actually occurred … account may not be taken of the findings implicit in the jury's verdicts at the appellant's trial."

While Gilbert, Gillard, Ross, Pemble and many of the other cases have arisen where murder has been charged and manslaughter, although an available outcome on one view of the facts, has not been left to the jury, the principle propounded by Barwick CJ in Pemble and the majority in Gilbert is not so limited. Indeed, in Evans and Lewis, the principle was stated more widely - it applies where it is fairly open to a jury to convict of a lesser offence than that charged.

In Rehavi (1998) 101 A Crim R 569 at 573 the Queensland Court of Appeal held that there was no logical reason for confining the reasoning as to the need to leave the lesser offence where it is fairly open as an alternative verdict to the more serious charge to instances of murder and manslaughter. It relied at least in part on the discussion by King CJ in Benbolt (1993) 67 A Crim R 11 at 15 et seq. Mason P in Elfar (2000) 115 A Crim R 64 at 65 said, "I have no difficulty in accepting that Pemble (1971) 124 CLR 107 extends beyond the field of murder/manslaughter."

In Maxwell 1988 1 WLR 1265 the appellant was charged with robbery. He admitted that he had recruited one of the co-defendants to arrange a burglary but denied intending any violence to the victims. The judge in response to a question from the jury instructed them that burglary was not an alternative and that they should concentrate on the charge, namely, robbery.

Mustill LJ in delivering the judgment of the English Court of Appeal reviewed and adopted its earlier decision in Fairbanks [1986] 1 WLR 1202 and quoted extensively from it, including these passages from 1205-1206: "…the judge is obliged to leave the lesser alternative only if this is necessary in the interests 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 … 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 … the interests of justice will sometimes demand that the lesser alternatives are left to the jury … justice serves the interests of the public as well as those of the defendant …" 79. In Maxwell at 1270 after pointing out that the judge was not obliged to leave an alternative offence just because the defence asks for it, Mustill LJ said: "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 the full range of choice … The right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable that the issues left to the jury fairly reflect the issues which arise on the evidence."

In Rehavi (1998) 101 A Crim R 569 the appellant was convicted of grievous bodily harm with intent to do grievous bodily harm. He contended that the trial judge should have left grievous bodily harm to the jury despite his counsel at trial having agreed that the verdict should be either guilty of grievous bodily harm with intent or acquittal. The Court formulated the question for decision thus: "…whether, in light of the acceptance by the defence of an 'all or nothing' approach to the charge was the … judge nonetheless under a duty to advise the jury of their right to bring in a lesser verdict."

The Court there reviewed a number of authorities and placed reliance on the remarks of Barwick CJ in Pemble and those of Mustill LJ in Fairbanks and Maxwell. The crux of the decision in Rehavi is to be found in this passage at 576-577: "However, the evidence was far from clear as to whether the appellant broke the rim of his glass before thrusting it in the complainant's face or whether the glass broke on his face. If it were the former that would be compelling evidence of an intention to commit grievous bodily harm. If the latter then a reasonable jury may have had a doubt as to his state of mind. In the light of that evidence it was wrong not to inform the jury that they could convict of the lesser offence if they were not persuaded beyond a reasonable doubt of the appellant's mental state at the time, notwithstanding the tactical decision taken by the appellant below and which the prosecution was content to adopt. There is a public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused. To shut the jury out from the lesser verdict compromised the verdict given. There was, in our view, a real risk that the jury, being persuaded that the appellant had inflicted serious injury on the complainant, and without compromising their oaths, were prepared to infer the necessary intent rather than acquit him altogether. The appellant has thereby been deprived of the opportunity of a verdict on the lesser offence."

In R v Elfar (2000) 115 A Crim R 64, the appellant was convicted of knowingly take part in the manufacture of not less than the commercial quantity (250 g) of amphetamine in contravention of s.24(2) of the Drug Misuse & Trafficking Act 1985 (NSW). The appellant contended that the judge erred in not putting the alternative verdict to the jury under s.24(3) of the Act which states that if the jury is not satisfied that the amount equals or is more than the commercial quantity they may acquit and bring in a guilty finding under s.24(1) which does not refer to quantity. The appellant contended that the evidence was so imprecise as to relevant quantities that it remained open to the jury not to be satisfied that the amount was of the commercial quantity.

The principal judgment was that of Sully J. That judge thought that the Crown was entitled to go to the jury on an all or nothing basis and that, given the overall state of the evidence at trial, the starkness of the choice offered by the Crown to the jury gave the appellant an advantage at trial. I have reservations about this so-called advantage. The jury is offered an unattractive alternative to conviction of the major offence, where there is obvious criminality.

Sully J referred to this conclusion of Lee J in Elliott and Hitchins [1983] 3 NSWLR 318 at 336: "The question in every case will be whether the failure to put manslaughter means that the murder verdict is suspect or not, and it is difficult to see how it can be said to be suspect when it amounts to a rejection of the basis upon which manslaughter could be found."

and continued: " In Gilbert, two members of the majority, Gleeson CJ and Gummow J referred in their joint judgment to Lee J's discussion of relevant authority in Elliott and Hitchins. As I read the judgment of Gleeson CJ and Gummow J their Honours do not say anything apt to cast doubt upon the principle expressed by Lee J."

As earlier appears, Gleeson CJ and Gummow J pointed out that the approach of Lee J differed from that of the Supreme Court of Canada. They preferred the latter.

Elfar was decided in July 2000. The decision in Gillard was delivered in November 2003. Thus the members of this Court in Elfar did not have the advantage of the further exposition of the principles laid down by the majority in Gilbert.

I have reservations about the suggestion that the Crown is entitled to go to the jury on an "all or nothing" basis where there is a viable case of a lesser offence See also Maxwell at 1270. These reservations are subject to the exception mentioned by Mustill LJ in Fairbanks at 1205-6, namely, that the principal offence is grave and the alternative is comparatively trifling.

Sully J at 70-71 concluded: "On the given facts of the present case, and having regard in particular to the stance adopted at trial by the present appellant, I am wholly unable to conclude that, to paraphrase Lee J, the verdict of the jury on the s 24(2) charge is suspect by reason of the failure to put to the jury the s 24(3) alternative. The case seems to me to be, precisely, one in which it can be said that the verdict of the jury embodied, amongst other findings, a finding reached beyond reasonable doubt that the relevant knowing participation of the appellant had been in an enterprise, the end objective of which was the manufacture of more than 250g of amphetamine. That necessarily entails that the jury was affirmatively satisfied beyond reasonable doubt of something which negatives the essence of the s 24(3) alternative."

Sully J thought that there had been no miscarriage of justice in the trial judge not putting the lesser offence to the jury.

Sperling J agreed with Sully J. Sperling J (at 73) rejected the proposition that all alternative lesser offences must be left to the jury. This reflects the comment made by Mustill LJ in Fairbanks. Sperling J stated, "Different considerations apply in relation to murder and manslaughter because of historical concepts to do with a single crime of unlawful homicide."

It seems that Sperling J was not referred to the comments of Lawton LJ in delivering the judgment of the Court of Appeal in Reg v Saunders (1986) 1 WLR 1163 at 1167: "The power of juries to return verdicts of manslaughter on indictments charging murder was grounded in the common law rule that on a charge of felony a defendant might be convicted of a less aggravated felony of which the ingredients are included in the felony charged. There was a similar rule about misdemeanours, but except under a statute a conviction of a misdemeanour was not allowed on a charge of felony: see Rex v Stokes (1925) 19 Cr App 71."

At 65 Mason P expressed his reservations about the correctness of the principle for which Rehavi appeared to be authority. Mason P noted that Rehavi, Benbolt (1993) 67 A Crim R 11, a judgment of the Full Court of South Australia and Maxwell contained passages suggesting that there are "some cases" in which the jury should be given the opportunity to return a lesser verdict even though the lesser offence is not charged, indeed even though the point is not taken by the defence. I would add a reference to Fairbanks. At 65-66 Mason P said: "I have three difficulties with this line of authority about which I would require further assistance before being comfortable in applying Rehavi 1. It appears to elide the separation of executive and judicial functions in the administration of criminal justice. The function of determining what charges should be laid and prosecuted is essentially that of the Executive (Ridgeway, (1995) 185 CLR 19 at 32-33; 78 A Crim R 307 at 315-316; Maxwell (1996) 184 CLR 501; 87 A Crim R 180).

2. The cases discussed in Rehavi (especially Maxwell) seem to accept that there is an element of judicial discretion involved, and that not every theoretical possibility need be put to the jury in what Sperling J describes as 'a veritable cascade of lesser offences'. For example, it would be absurd that a conviction on a charge of sexual assault without consent would miscarry because the jury were not given the opportunity of returning a verdict of common assault. If there is a judicial discretion, then I have real difficulty in seeing what principles underlie it. If there are no principles, then my first problem is rawly exposed.

3. Rehavi appears to attribute a wider and different scope for the Pemble principle than that stated by McHugh J in Gilbert at 586 [26]-587 [27]. McHugh J states the qualification to the Ross principle as being that: '… where the evidence, in substance but not necessarily in form gave rise to a "defence" by way of confession and avoidance which the trial judge failed to put to the jury, the verdict can be set aside.' "

It is not uncommon for the Crown to seek a conviction for the most serious offence and for the accused, depending on the facts, to seek either an acquittal or conviction for a lesser (or much lesser) offence and for both parties not to raise some intermediate offence. In murder cases an accused who relies on self-defence will often eschew raising manslaughter based on excessive self defence or provocation. Judges often have to put manslaughter to the jury where it is not suggested by either the Crown or the accused, but it appears to be a viable alternative on the evidence. This happens on occasions where it is open to the jury to accept some of the evidence of the prosecution witnesses but the jury may not be satisfied as to other parts of that evidence.

Similar problems also arise where an accused is charged with robbery while armed with a dangerous weapon but the jury may only be satisfied that the weapon was an offensive one and where, as here, the offence charged is robbery while armed with an offensive weapon, but the evidence supports as a viable outcome, the charge of robbery.

Other instances include charges under s 33 of the Crimes Act 1900 (maliciously wounding or inflicting grievous bodily harm with intent to do grievous bodily harm) and s 35 of the Act (malicious wounding or infliction of grievous bodily harm). This is not an exhaustive list.

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.

The approach in the dissenting judgment of McHugh J in Gilbert is similar to that of Lee J in Elliott and Hitchins. I doubt if that approach can be sustained in view of the majority judgments in Gilbert and Gillard.

While the major decisions which must be applied are those of the High Court in Pemble, Gilbert and Gillard and their development of the law since Ross, it is useful to return to the modern English approach in Fairbanks and Maxwell. In Fairbanks, the appellant was charged with causing death by dangerous driving. The trial judge rejected a defence submission that the alternative of careless driving should be left to the jury. The dangerous driving alleged was grossly excessive speed on a narrow serpentine road. Considerable headway was made in cross-examination of the prosecution witnesses and with evidence called on behalf of the defence. There was material upon which the jury could properly have concluded that the speed might well have been much lower than the prosecution had suggested. On this view a verdict of guilty on the count of reckless driving was problematical. It was held that by declining to leave the alternative verdict to the jury, the recorder had committed a material irregularity and that the proviso could not be applied. The conviction was quashed and a conviction of careless driving was substituted.

Mustill LJ, in delivering the Court's judgment, in referring to two early cases (1908 and 1910) said: "The reports are brief, but they demonstrate that the judge is not always obliged to leave all the alternative verdicts theoretically comprised in the charge of the offence, but need not (and indeed should not) do so unless the alternatives really arise on the issues as presented at the trial."

Mustill LJ next quoted these observations of Phillimore J in R v Parrott (1913) 8 Cr App R 186 at 193: "There may be cases where in the interests of the prisoner a judge ought to do so; there are certainly many cases where the interests of justice are not met unless it is pointed out to the jury that they may convict of a lesser offence, or, thinking it a case of 'neck or nothing', they may acquit altogether."

In discussing Maxwell reference was made to other passages from Fairbanks which were adopted. In Fairbanks there was no discussion of the question of the jury acting contrary to their oath if they convicted him of the more serious offence rather than finding him not guilty.

In Maxwell the Court of Appeal acknowledged the force of the criticism of Archbold Criminal Pleading Evidence & Practice, 42nd ed (1985) para 7-44, p.172 of Fairbanks, but adhered to the general observations in Fairbanks on the duties of the trial judge, noting, in effect, that the alternative offence must fairly arise on the evidence. After holding that the judge had not, as he should have, used his powers to ensure, so far as practicable, that the issues left to the jury fairly reflected the issues which arose on the evidence, that Court considered the consequences which should follow.

The Court stated: "… we have come to agree with the general thrust of Archbold's comments on Fairbanks. As it seems to us the task of the jury was not to choose between deciding that Maxwell was guilty of robbery and deciding that he was entirely innocent, but rather to perform the single function of asking themselves whether they were sure that he was guilty as charged. To this function the anomalous consequences of a negative answer were irrelevant, however puzzling they may have been … To interfere with the verdict would require us to identify solid grounds for suspecting that the members of the jury had foresworn their oaths by deliberately returning a verdict of guilty when they were not sure of it, simply to avoid an unwarranted outcome. No such grounds are established, and we cannot assume them to the jury's discredit."

One of the features of Maxwell was that the alternative offence could not be left to the jury as it had to be included in the indictment and the Crown refused to include it. That feature is probably not decisive.

A critical aspect of the problem and its solution lies in the different approaches of two schools of thought. That favoured by the dissenting justices in Gilbert is that where the most serious offence alone is put to the jury, and the jury is correctly directed as to the elements of that offence and otherwise correctly instructed and on the evidence a conviction on an alternative and lesser offence is a viable outcome, this Court cannot and should not assume that the jury have not followed the judge's directions without some substantial basis for doing so. The dissenting Justices emphasised that it was fundamental that a jury understood, followed and applied the judge's directions, even if the result thereby produced seemed unreasonable or unsatisfactory. This was subject to an exception where the evidence gives rise to a "defence" by way of confession and avoidance (e.g. provocation, self defence and lawful excuse) and this "defence" erroneously was not put to the jury.

The approach adopted by the majority justices in Gilbert and those same justices in Gillard was that the Court does not have to assume, on the part of the jury, a mechanistic approach to the task of fact-finding divorced from a consideration of the consequences and that they make their findings of fact in the context of instructions as to the consequence of such findings. Further, it is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of choices offered.

Having regard to the principles discussed by the majority Justices in Gilbert and those same justices in Gillard (with whom Kirby J in substance agreed in Gillard on the points now under discussion) these principles emerge on the authorities: (a) Where on a trial for murder, there is a viable case of manslaughter to be left to the jury, the refusal to do so constitutes a wrong decision on a question of law: Gillard v The Queen 2003 HCA [par 26]; [par 32]; [par 85]; [par 106].

(b) This raises the question of the proviso. It is not an answer to such refusal or failure that the jury were correctly instructed on the elements of murder and that since they convicted the accused (appellant) of murder there is on that account alone, no miscarriage of justice. The jury were deprived of the opportunity to consider an intermediate position.

(c) The principle stated in Gillard is not limited to instances of murder and manslaughter, but applies where a serious offence is charged and there is a lesser alternative offence, the conviction for which would be a viable outcome on the evidence, that is, the evidence is such that a conviction for the lesser alternative offence would represent a rational result. See Fairbanks , Maxwell , Gillard and Elfar [par 5]. Where this is the position it is in the interests of justice for the alternative count to be left. However, there are limits to the principle earlier stated in this sub-paragraph, including: (i) where there is no dispute that the full offence charged was committed and the issue is whether the Crown has proved that the defendant committed it ( Fairbanks at 1206 ; Maxwell at 1269) (ii) where the principal offence is grave and the alternative alleged is comparatively trifling and remote from the real point of the case ( Fairbanks at 1206; Maxwell at 1269) (d) If the Crown wishes the jury to consider the alternative offence in the event of them finding the accused not guilty of the principal offence the Crown must open the alternative offence to the jury.

(e) 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. 111. 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.

In the present case, on any sensible view of the evidence as to what took place, a conviction for stealing did not adequately represent the appellant's criminal conduct. There was a strong case that the victim had been put in fear, whether or not a screwdriver was produced by the appellant. Robbery is a serious criminal offence and carries a maximum penalty of 14 years imprisonment. As an alternative verdict to robbery while armed with an offensive weapon, robbery also represented a major serious criminal offence with a suitably severe maximum penalty.

An examination of the evidence leads to the conclusion that on the cross-examination of the victim and the evidence of the appellant, it was a viable outcome that the jury, if it had been given a choice of convicting of robbery, might have done so rather than of robbery while armed with an offensive weapon. It is not without significance that one of the early police reports contained the phrase, "possibly armed with a screwdriver". That does not suggest that the witness (or witnesses) were sure that a screwdriver was provided.

The judge erred in not leaving the alternative offence of robbery to the jury. This is not a case in which it can be said that no miscarriage of justice resulted. It was not a case where the jury, if correctly instructed, would necessarily have returned a verdict of guilty of armed robbery with an offensive weapon. Nor is it a case where this Court should substitute a verdict of robbery.

I agree with what Grove J has written on grounds 2, 3, 4 and 5.

I propose that the appeal be allowed, the conviction quashed and a new trial ordered.

DAVIDSON AJ: I have now had the advantage of reading in draft the judgments of Grove J and Smart AJ.

This Court, differently constituted, in R v Elfar (2000) 115 A Crim R 64 was disinclined to follow the decision of the Queensland Court of Criminal Appeal in R v Rehavi (1998) 101 A Crim R 569, at least the majority rejecting the notion that the principle in Pemble's case automatically applies to charges of offences other than murder/manslaughter.

The fact that the judgments in Elfar were delivered prior to the decision of the High Court in Gillard does not affect, in my view, the authority of Elfar in this respect since Gillard itself was a murder/manslaughter case.

I respectfully adopt the view of Sperling J in Elfar that different considerations apply in relation to murder/manslaughter. This is particularly so in New South Wales in light of the statutory definition of murder in s 18 of the Crimes Act 1900. It has been consistently held that a jury has a right to return a verdict of not guilty of murder but guilty of manslaughter even where there is no legal basis on the evidence to justify such a verdict. Whilst there is no corresponding duty on the trial judge to leave such a verdict to the jury where there is no basis for it, there is a duty in the judge to tell the jury, if asked by them, that they have such a right to return a verdict of guilty of manslaughter in all cases.

It is clear from the authorities analysed by Smart AJ that it is only when there is an evidentiary basis for the lesser offence that the judge should leave it as an alternative verdict available to the jury in other than murder/manslaughter cases. Further, much will depend on the way the trial was conducted and on what the interests of justice and fairness demand.

I note that Smart AJ has come to the view that: "There was a strong case that the victim had been put in fear, whether or not a screwdriver was produced by the appellant".

I must respectfully disagree with this view on my assessment of the evidence.

It is a necessary element of the offence of robbery that the Crown establish that the accused by his conduct, which may include a threat express or implied, put the alleged victim in fear of violence.

There clearly was evidence before the jury that Mrs Martin was in fear. There had been a previous robbery in the newsagency and even before the accused, Mr King, entered the shop on the first occasion, she was apprehensive to the extent of wanting Mr Wilson, her customer, to stay at least for a time until that apprehension abated and she told Mr Wilson that he might go.

As Smart AJ states, the accused followed Mrs Martin into the shop. He then went outside again and walked back into the shop. She saw that he had his hand in the till at the counter. When she asked what he was doing he "glared" at her. When she moved behind the counter, he directed her, "Don't press that fucking button". When she did so he said, "You've gone and pressed the fucking button". He then walked around the counter towards her until they were about two feet from each other. It was then, according to Mrs Martin's evidence in chief that she ran from the house.

There was a contested issue as to whether the appellant had possession of, and produced and brandished in the manner described by Mrs Martin, a screwdriver.

The jury found beyond reasonable doubt that he did have and threatened her with a screwdriver. Whether this precludes the appellant from now asserting that simple robbery ought to have been left as an alternative to the jury depends on the question, to which I have referred above, whether the principle in Pemble applies generally or is limited to cases of murder/manslaughter.

However that question may be resolved, there must still be a legal basis for leaving the lesser alternative offence to the jury (c/f murder/manslaughter).

In cross-examination Mrs Martin, in insisting that the appellant did produce a screwdriver, said, "That's why I ran out of the shop because he had it pointed at me".

The question is whether the evidence of acts and/or words of the accused (appellant) up to the point of time when he is said to have produced the screwdriver were sufficient to permit the jury to come to a conclusion beyond reasonable doubt that his conduct and words involved a threat of violence towards Mrs Martin sufficient to sustain robbery. In my view they do not.

If there was no element of actual violence, nor a threat of violence in the accused's words or conduct apart from what he did with the screwdriver, then this essential element can not be resolved in favour of the Crown by reference to Mrs Martin's assumed reaction if the jury were not satisfied that there was a screwdriver.

The issue up to the close of evidence was whether the Crown had proved beyond reasonable doubt armed robbery rather than the lesser offence of larceny. There was no litigation of the question whether robbery was available as a verdict. That is the way the trial was conducted. Counsel for the accused initially not only saw no advantage to his client in leaving robbery as another alternative with larceny, but said, "It's against the interests of my client, of course" (see Appeal Book p265, 258T). The context makes it clear that he was moved by his duty of the Court, not to his client, to suggest robbery as an alternative. Rather than an advantage, counsel perceived a disadvantage to his client from leaving robbery as a possible verdict at that stage of the proceedings.

Accordingly, I am of the view that this ground of appeal fails. As to the other grounds of appeal I respectfully agree with Grove J.

I would dismiss the appeal and confirm the conviction.

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