The three cases presented below all address the question of when alternative verdicts should be left to the jury.
Plainly, this addresses circumstances of statutory alternatives, rather than alternative charges expressed on the indictment. The most common examples of this are the cascading offences contained at s33 of the Crimes Act 1900 (Wounding or Grievous Bodily Harm with Intent) s35 of the Crimes Act (Reckless Grievous Bodily Harm or Wounding).
The law requires any defence open on the evidence be explained to the jury, no matter whether that defence is relied on or even mention by defence counsel. The position is quite different, however, on alternative verdicts.
James v The Queen  HCA 6 stands for the proposition that the judge is required to, on the question of whether an alternative verdict should be left, consider “what justice to the accused required in the circumstances of the particular case”, although this can (and should) take into account “the real issues in the trial and the forensic choices of counsel.”
R v Pureau (1990) 19 NSWLR 372
“The issue of alternative verdicts should be opened to the jury by the Crown. If the alternative verdict is not referred to them, it must be raised before closing addresses when the judge can rule whether the delay in raising it so late in the piece would be likely to cause injustice to the accused.”
Sheen v R  NSWCCA 259
“This Court has emphasised the strong desirability of the prospect of an alternative verdict being raised at an early time in the trial. 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.”
James v The Queen  HCA 6
“The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence.”
At 373 and 374
The appellant (Michael Kodi Pureau) was charged that, being in company with a person then armed with an offensive weapon (a knife), he did assault and rob a taxi driver of $30 in cash and that, immediately after that robbery, he did wound the taxi driver. The jury in the District Court found the appellant not guilty of that charge but guilty of attempting to commit the offence. Gallen DCJ imposed a sentence of imprisonment for five years, and fixed a non-parole period of three years.
The Crown case was that the appellant and a woman (whose identity is unknown) hired the victim's taxi, the appellant sitting in the front and the woman in the back. The appellant gave the victim the destination. He later asked the victim to stop. The woman placed a knife against his throat from behind, and the appellant said: “This is it mate, give us your money.” A struggle followed, in which the appellant punched the victim in the face and pulled at his money pouch (containing approximately $30), which had been hanging by its strap around the steering wheel, breaking its strap in the struggle with the victim over its possession. The appellant and the woman left the taxi, with the appellant holding the bag, and they were pursued by the victim. The victim grappled with the appellant, and was stabbed by him twice in the stomach. The woman disappeared, as did the money pouch. (I shall have to refer later to other evidence in relation to the possession of that pouch.)
The appellant's case was that he had never previously seen, and he was not associated with, the woman who had committed the robbery. Both had sought to hire the victim's taxi at the same time, and they had agreed to share it. The woman had attacked the victim without any foreknowledge on his part. He had never seen the victim's money pouch, and he had in fact gone to the victim's assistance. He had punched the victim only because the victim had punched him, apparently mistakenly believing that the appellant was taking part in the robbery. The appellant had attempted to remove the knife from the woman but the victim managed to remove it from both of them. The victim then stabbed the appellant in the hands, who regained possession of the knife. When they left the taxi, the victim had wanted to fight him, and they “ended up in a bit of a struggle; somehow he [the victim] got stabbed”. In other words, he had not deliberately stabbed him. The first ground of appeal is that the judge was in error
The first ground of appeal is that the judge was in error in leaving the alternative verdict of attempt, both as a matter of law and as a matter of fairness.
The appellant has argued that the Crown case here was an all or nothing one. If the jury accepted the evidence upon which the offence charged was based, then he had to be found guilty of that offence. If the jury did not accept any part of that evidence, then there was no remaining basis upon which the alternative verdict of attempt could be based.
The Crown's answer is that there was one ingredient of the offence charged in relation to which the evidence within the Crown case differed so that, if the jury accepted one of the two versions, that particular ingredient would not have been established and the alternative verdict of attempt would properly have been based upon the other version.
The ingredient in question was the unlawful taking and carrying away of the victim's property, such an issue being involved in the alleged robbery. The Crown points to the evidence of Lee Bowman, who was in a motor vehicle stopped in the traffic behind the taxi, and who said that when the appellant and the victim left the taxi the money pouch was in the possession of the victim. Such evidence was contrary to that given by the victim himself and to that given by Lailie Schwartz, who was in another motor vehicle stopped in the traffic. Both said that the appellant had possession of the money pouch when he left the taxi. A possible third version was given by Stephen Anderson, who was a bystander, and who said that he saw a brownish leather handbag with a strap in the possession of the woman when she left the taxi. That may or may not have been the money pouch. The Crown says, however, that the jury could have accepted Bowman's evidence on this point in preference to that of the victim and of Schwartz.
No mention of the availability of this alternative verdict was made by the Crown Prosecutor in either her opening or closing address, and counsel for the appellant had not addressed upon it either. The issue was raised for the first time by the judge in his summing-up. That was unfortunate. The Crown, however, has argued that it was nevertheless appropriate for the judge to have left the issue to the jury.
The issue of alternative verdicts should be opened to the jury by the Crown. If the alternative verdict is not referred to them, it must be raised before closing addresses when the judge can rule whether the delay in raising it so late in the piece would be likely to cause injustice to the accused.
It must be conceded that the factual situation which gives rise to the prospect of an alternative verdict of attempt is often not apparent until the trial is under way. In that regard, this particular alternative verdict may well differ from, say, that of malicious wounding as an alternative to malicious wounding with intent (permitted by s 34). The trial judge would therefore be more likely to conclude that the late raising of this particular alternative verdict had not prejudiced the accused. But it is difficult to imagine circumstances which would justify it being raised for the first time during the summing-up, when neither counsel had had at least the opportunity of addressing upon it if they had wished to.
Having said that, however, the Crown has a good argument that, in the circumstances of this particular case, no actual miscarriage of justice was created for the appellant by the judge's failure to deal with this issue before the closing addresses. The appellant's case at all times was a complete denial of any common purpose with the woman and of any deliberate stabbing by him of the victim. There appears really to have been nothing which his counsel could usefully have said in his closing address which would have assisted him on this alternative verdict which would not also have been tactically unwise in relation to the offence charged. But it is unnecessary in this case to decide that particular matter.
In any event, the failure to give the jury any real idea as to how the Crown case on this alternative verdict was to be established, and the positive misdirection as to what that case was, must together result in a finding that the trial miscarried.
Such a result is particularly regrettable. It would appear that the case against the appellant on the offence charged was a very strong one. He was fortunate indeed not to have been convicted of that offence. If the jury's doubt related only to the issue of asportation, as it is suggested, that doubt is likely to have been engendered only because the judge's directions upon that issue also failed to give them any assistance as to how that issue could have been established on the evidence: R v Zorad (1990) 19 NSWLR 91 at 105G-E. If, for example, he had told the jury (as he should have) that taking the pouch from the victim inside the taxi was sufficient, even though the appellant had not succeeded in taking the pouch away from the scene, I am
reasonably certain that the jury would have convicted him of that offence.
But, as strong as the Crown case may have been in relation to the offence charged, it cannot be said to be strong on the attempt, depending as it does upon both accepting and rejecting the evidence of the victim. The effect of the errors which were made cannot be described as unimportant, and accordingly this is not a case for the application of the proviso. The conviction must therefore be quashed.
I agree with what has been said by the presiding judge, Hunt J, and only wish to add a few short words of my own.
To me, the most unsatisfactory aspect of the trial is the ambush aspect that crept in. Defence counsel had no opportunity to put submissions to the jury concerning this alternative serious charge that was being levied against his client. It had not been dealt with in the addresses; it had been sprung on both counsel for the Crown and counsel for the defence by his Honour. Because of that, this trial was not a fair trial. If additional support were needed for this concern, it could be found in the fact that in the directions given by his Honour about “attempt” he misstated the Crown's position on the subject by stating that the Crown had an attitude on attempt, when in fact the Crown did not have such an attitude. That misstatement seems not to have been corrected.
I agree with the orders proposed and the reasons given by Hunt J.
1. The Appellant, Michael Richard William Sheen, seeks an extension of time to appeal against conviction and sentence following a trial which took place in the Sydney District Court in 2009.
7. The Appellant relies upon the following grounds of appeal against conviction:
(a) Ground 1 - the trial miscarried.
(b) Ground 2 - the trial Judge erred in his directions to the jury in:
(i) failing to give a "Murray" type direction,
(ii) respect to the drawing of inferences,
(iii) giving misleading directions to the jury regarding self-defence,
(iv) failing to summarise the evidence relevant to his directions on self-defence.
(c) Ground 3 - the trial Judge erred in directing the jury on an alternative count.
(d) Ground 4 - the verdicts were inconsistent and the verdicts of conviction were unreasonable.
Ground 3 - Directions to the Jury Concerning an Alternative Verdict on the Second Count
Submissions of the Parties
64. Mr Ramage QC submitted that the trial Judge had erred in leaving to the jury an alternative verdict on the second count of guilty of break, enter and steal simpliciter. He submitted that the trial had been conducted upon the basis that the incident on 19 August 2008, which was the subject of the second count, had been committed whilst the Appellant was armed with an offensive weapon, being the green cylindrical knife as asserted by Mr Potts in his evidence.
65. It was submitted that neither the Crown nor the defence at trial had adverted to the prospect of such an alternative verdict, and that the trial Judge did not raise the matter with counsel before informing the jury of this available alternative verdict in the course of the summing up. He submitted that this course was contrary to law and gave rise to a miscarriage of justice in the circumstances of the case.
66. The Crown submitted that there was an obligation on the trial Judge to leave an alternative verdict where it arose in the circumstances of the trial, and that it was not to the point that the Crown had not opened, nor relied upon such an alternative verdict: R v King  NSWCCA 20; 59 NSWLR 515 at 516 , 525 .
68. The second count in the indictment charged the Appellant with an offence of aggravated break, enter and steal contrary to s.112(2) Crimes Act 1900, an offence punishable by imprisonment for 20 years, with a standard non-parole period of five years. The circumstance of aggravation charged in the second count was that the Appellant was armed with an offensive weapon: s.105A(1) Crimes Act 1900.
69. During the course of the summing up, the trial Judge instructed the jury in the following terms concerning a possible alternative verdict on the second count (SU13-14):
"Now it is theoretically possible that you might find, I am not suggesting this is what you should or would find but I am obliged to describe to you the full range of legal options open to you, and that is it is entirely possible that you might find that you are persuaded beyond reasonable doubt that the accused broke into, entered the house of and stole property from Mr Potts. But if for some reason you are not satisfied beyond reasonable doubt that he was armed with the green cylindrical knife, the offensive weapon, at that stage then you would find him not guilty of this charge but you would need to tell me then that you find him guilty of the charge of breaking, entering and stealing. Because there is a breaking, entering and stealing and then there is the aggravating element of being armed with the offensive weapon. So that charge is, if you like, subdivisible."
70. This direction left open to the jury the prospect of returning a verdict on the second count of not guilty of the charge under s.112(2) Crimes Act 1900 , but guilty of break, enter and steal under s.112(1) Crimes Act 1900 , an offence punishable by imprisonment for 14 years.
73. Accordingly, the course taken by the trial Judge was open as a matter of law. The complaint here is that, in the circumstances of the case, the trial Judge erred in leaving the alternative verdict to the jury in the summing up when there had been no earlier reference to that possibility by the Crown or the trial Judge. In effect, the Appellant submits that unfairness resulted to him in these circumstances and that a miscarriage of justice has occurred.
80. In the circumstances of this case, it was open to the trial Judge as a matter of law to leave the alternative verdict on the second count to the jury. Indeed, the authorities support an argument that the trial Judge was bound as a matter of law to do so. It appears that this was his Honour's view as he told the jury that he was "obliged to describe to you the full range of legal options open to you" (see  above).
81. That leaves a further question concerning the manner and timing of the alternative verdict being raised. The Crown did not open to the jury upon this aspect. Nor was mention made during the trial by the trial Judge, the Crown Prosecutor or defence counsel concerning the possibility of an alternative verdict on the second count. The topic was not referred to in closing addresses. The trial Judge did not raise the issue with counsel in the absence of the jury. Rather, the topic was mentioned for the first time in the extract from the summing up set out at  above.
82. This Court has emphasised the strong desirability of the prospect of an alternative verdict being raised at an early time in the trial. 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. It has been said to be unwise for a trial Judge to introduce these matters on his own initiative: R v Cameron at 71. In R v Pureau (1990) 19 NSWLR 372 at 376, Hunt J observed that normally the prospect of an alternative verdict should be raised by the Judge with counsel before the closing addresses to enable counsel to consider what, if anything, they wish to say on the issue. Hunt J said that it was difficult to imagine circumstances which would justify such an issue being raised for the first time during the summing up, when neither counsel had had at least the opportunity of addressing upon it if they so wished.
92. When the issue was raised by the trial Judge, neither the Crown Prosecutor nor (more particularly) defence counsel raised any concern or objection to that course. There was no submission made that the late raising of this prospect had taken counsel by surprise or that any aspect of the trial, including closing addresses, may have been handled differently if counsel had been told that this was to occur.
93. The observations of Hunt J in R v Pureau (at  above) are pertinent in this respect. If the complaint is, as in Chand v R , that the Appellant was somehow entitled to run an "all or nothing" defence on the second count, then that approach is not supported by authority. It is difficult to see how unfairness resulted to the Appellant where an alternative and lesser included count was left to the jury. Senior counsel for the Appellant before this Court has not articulated any practical unfairness which is said to have resulted from this course.
94. In all the circumstances, without seeking to endorse the approach of the trial Judge in this case, I am not persuaded that there was a practical injustice to the Appellant resulting from the course taken by his Honour.
180. I agree with the reasons and orders proposed by Johnson J.
181. I agree with Johnson J.
French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ (would dismiss the appeal)
1. The appellant was convicted following a trial in the Supreme Court of Victoria (Williams J) of intentionally causing serious injury to a man named Khadr Sleiman. A second count, an alternative to the first, charged the appellant with recklessly causing serious injury to Mr Sleiman. Mr Sleiman suffered multiple injuries as the result of being struck by a motor vehicle that at the time was being driven by the appellant. It was the prosecution case that the appellant deliberately struck Mr Sleiman with the vehicle intending thereby to cause him serious injury. It was the defence case that Mr Sleiman was struck accidentally while the appellant manoeuvred his vehicle in reverse in an endeavour to get away from Mr Sleiman, who was menacing him with a knife.
2. During the course of its retirement the jury sought clarification of the distinction between an intention to cause serious injury, the mental element of the offence charged in the first count, and awareness that his acts would probably cause serious injury, the mental element of the offence charged in the second count. In the course of a discussion about how to answer the jury's question the prosecutor raised, for the first time, the question of whether the jury should be instructed of the availability of a further alternative verdict: that the appellant intentionally caused injury, as opposed to serious injury, to Mr Sleiman. The trial judge responded that the prosecution case had not been put on this basis. Her Honour expressed the view that to leave a further alternative verdict at this stage of the trial would deprive the appellant of the possibility of acquittal. By his silence, the appellant's counsel is to be taken to have agreed with that assessment.
3. The jury was not instructed of the availability of the alternative verdict of intentionally causing injury to Mr Sleiman. Nor was the jury instructed of the availability of the alternative verdict of recklessly causing injury to Mr Sleiman. The jury found the appellant guilty of intentionally causing serious injury to Mr Sleiman.
26. Plainly enough the fair trial of the accused may require that an alternative verdict be left, including in a case in which the accused disavows reliance on it. However, the proposition for which the appellant contends is the adoption of a rule requiring that every viable alternative verdict be left in every case.
28. The rule for which the appellant contends is one of greater stringency than that proposed in Coutts. Since the elements of an included offence are expressly or impliedly encompassed in the allegations pleaded in the indictment, included offences will commonly be "viable" in the sense of being open on the evidence. The appellant's proposed rule would not allow the trial judge to omit instruction on any alternative verdict lawfully open, notwithstanding that a realistic lesser alternative offence is charged in the indictment. In some cases, irrespective of the allegations charged in the indictment and the conduct of the trial, the trial judge would be required to direct the jury on a "cascade of lesser offences".
29. This lastmentioned prospect may be thought to be the antithesis of the obligation imposed on the trial judge when summing up to the jury to identify the real issues in the case and to instruct the jury on so much of the law as is necessary to decide those issues. That is so unless the real issues at every trial encompass the accused's guilt of every included offence of which, in law, the accused could be convicted regardless of the forensic choices made by the parties. This latter contention is to be assessed in light of the essential features of our accusatorial and adversarial system of criminal justice.
31. Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel. Among other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how on a view of the facts a defence or partial defence arises.
32. Of course, forensic considerations may equally be against defence counsel inviting the jury to consider the accused's guilt of a lesser offence. The submission may be inconsistent with the tenor of the defence case. Nonetheless fairness to the accused may require that the jury be directed of the availability of the alternative verdict. In such a case the failure to do so would be a miscarriage of justice.
33. However, it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused's chances of outright acquittal on the issues joined not be jeopardised by the trial judge's decision to leave an alternative verdict.
34. Consideration of fairness to the accused led the New South Wales Court of Criminal Appeal to hold that it was unwise for the trial judge to direct on an alternative verdict in a case in which the parties had not raised that matter. The Queensland Court of Appeal has similarly held that fairness may require that the accused's chances of acquittal are not jeopardised by leaving an alternative verdict. These remarks were approved by Kiefel J in R v Keenan with the concurrence of Hayne, Heydon and Crennan JJ. Keenan holds that the duty to ensure a fair trial does not require that a lesser charge is left in every case: the test is what justice to the accused requires.
37. The importance under Australian law of maintaining the separation between prosecutorial and judicial functions has been stated in a number of this Court's decisions since Benbolt. The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence.
38. The trial judge's duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court's assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused's guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel's objection.
48. Fairness to the appellant did not require that either alternative verdict be left. To have instructed the jury on the alternative verdicts at the conclusion of the trial might rightly be judged to have jeopardised the appellant's chances of acquittal. It might have done so because the central issue at trial – had the prosecution excluded the reasonable possibility that the appellant struck Mr Sleiman inadvertently as he manoeuvred the vehicle – may have been blurred in a summing-up which introduced additional, uncharged, pathways to conviction.
49. The appeal must be dismissed.
Gageler J (would allow the appeal)
52. My answers accord substantially with those of Priest JA, who dissented from the judgment of the Court of Appeal now under appeal to this Court. A trial judge was required to direct that a jury might find an accused guilty of a lesser included offence, if the jury did not find the accused guilty of the offence charged, whenever it was open to the jury on the evidence adduced at the trial to find the accused not guilty of the offence charged but guilty of the lesser included offence, irrespective of any forensic choice made by or on behalf of the accused, unless giving that direction would be unfair to the accused. Failure to give such a direction where so required would result in a substantial miscarriage of justice requiring the Court of Appeal to allow an appeal against conviction of the offence charged if there was reason to consider that the jury might have entertained doubt as to guilt of the offence charged had the direction been given, unless the Court of Appeal was able to conclude from its review of the record that conviction of the offence charged was inevitable.