Alternative verdicts

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.” 

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 [2014] 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.”

Pureau

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.”