James v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan,Kiefel,Bell,Gageler
• Judgment Date: 05 March 2014
• Neutral Citation: [2014] HCA 6
• Docket Number: M102/2013
• Date: 05 March 2014

Samuel James

Appellant

and

The Queen

Respondent

[2014] HCA 6

French CJ, Hayne, Crennan, Kiefel, Bell and Gageler

M102/2013

HIGH COURT OF AUSTRALIA

James v The Queen

Criminal law — Appeal — Appeal against conviction — Intentionally causing serious injury — Whether failure to instruct jury as to lesser alternative verdicts occasioned substantial miscarriage of justice.

Criminal law — Role of trial judge — Whether duty to secure fair trial required instruction on any lesser alternative verdicts regardless of forensic choices of counsel.

Crimes Act 1958 (Vic), ss 16, 17. .

Criminal Procedure Act 2009 (Vic), s 239. .

Representation

T Kassimatis with B J Franjic for the appellant (instructed by Valos Black & Associates)

P B Kidd SC with B L Sonnet for the respondent (instructed by Solicitor for Public Prosecutions (Vic))

ORDER

Appeal dismissed.

1 French CJ, Hayne, Crennan, Kiefel, Bell and Gageler 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 1. A second count, an alternative to the first, charged the appellant with recklessly causing serious injury to Mr Sleiman 2. 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 3. 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 4. 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 5.

The jury found the appellant guilty of intentionally causing serious injury to Mr Sleiman.

4 The appellant appealed to the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Whelan and Priest JJA) against his conviction, contending that the trial judge's failure to instruct the jury of the availability of verdicts for each of the lesser offences had occasioned a substantial miscarriage of justice. By majority, the appeal was dismissed. Maxwell P and Whelan JA, applying the test formulated by the Victorian Court of Appeal in R v Saad6, held that the interests of justice had not required that the further alternative verdicts be left 7. Their Honours” conclusion took into account both the trial judge's assessment that to leave them would be unfair to the appellant and defence counsel's acceptance of that assessment. It also took into account that there was little evidence which raised the alternative verdicts as a real, and not a remote or artificial, possibility 8.

5 In dissent, Priest JA held that Saad was wrongly decided 9. His Honour favoured the approach of the New South Wales Court of Criminal Appeal and the South Australian Court of Criminal Appeal as to the consequences of failing to leave an alternative verdict which is open on the evidence 10. This approach holds that the statements in Gilbert v The Queen11 and Gillard v The Queen12, with

respect to the failure to leave manslaughter on an indictment of murder, apply by parity of reasoning to the failure to leave any lesser offence which, expressly or by implication, is included in the allegations charged in the indictment (‘an included offence’). It followed, for the reasons explained in Gillard, that the failure to leave the further alternative verdicts at the appellant's trial occasioned a substantial miscarriage of justice 13.

6 On 1August 2013 Bell and Gageler JJ granted the appellant special leave to appeal from the orders of the Court of Appeal. The question presented by the appeal is whether, on a trial on indictment, it is the duty of the judge to leave any lesser alternative verdict that is realistically open on the evidence regardless of the forensic decisions of counsel. For the reasons to be given, the answer to that question is ‘no’. The Court of Appeal majority was correct to conclude that the trial judge was not required to instruct the jury of the availability of further alternative verdicts. It follows that the appeal must be dismissed.

The appellant's submissions

7 The appellant's argument may be summarised in the following steps. First, s 239 of the Criminal Procedure Act 2009 (Vic), which provides for the return of alternative verdicts, confers an unqualified right on the jury to return a verdict of guilty of any included offence that is open on the evidence.

8 Secondly, the failure to direct the jury on any included offence that is open, regardless of the conduct of the parties, is a miscarriage of justice: the jury, ignorant of the range of possible verdicts which the law allows, may be driven to convict rather than to acquit the accused outright.

9 Thirdly, the statements in Gilbert concerning jury deliberations 14 should not be understood as confined to appellate consideration of the trial of an indictment of murder at which manslaughter is not left. Their Honours” statements are equally applicable to appellate consideration of the trial of any offence on indictment.

10 Fourthly, there is no principled justification for distinguishing the obligation to instruct the jury on any defence or partial defence that is open on a view of the facts 15 from the proposed obligation to instruct on any alternative verdict that is open on a view of the facts. On this analysis, fairness requires that the jury is informed of any pathway to a verdict that is more favourable to the accused than conviction of the principal offence.

11 Finally, as the jury was not informed of the availability of verdicts for the two included offences, it was not open to the appellate court to conclude that the appellant did not lose the chance of a more favourable verdict and for this reason the failure to leave the alternative verdicts was an error resulting in a substantial miscarriage of justice 16.

12 Acceptance of the appellant's argument requires the appellate court to set aside his conviction for the offence charged in count one notwithstanding that the verdict was returned following a trial at which the law governing liability for that offence, and for the lesser alternative offence charged in count two, was correctly explained to the jury. This result is required notwithstanding that the prosecution confined its case to proof of guilt of the charged offences and that the appellant chose not to invite the jury to convict him of any lesser offence should the prosecution fail in that endeavour.

Alternative verdicts — included offences and manslaughter

13 Section 239 of the Criminal Procedure Act 2009 (Vic) provides:

‘(1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.

(2) For the purposes of subsection (1), an allegation of an offence includes an allegation of an attempt to commit the offence.’

14 The provision is modelled on s 6(3) of the Criminal Law Act 1967 (UK) 17. The enactment of the English provision followed the recommendation of the Criminal Law Revision Committee 18. The provision served to overcome technicalities of the common law. At common law the jury could not convict of a misdemeanour if the indictment charged a felony, but was at liberty to convict of a less aggravated felony (or misdemeanour if the indictment charged a misdemeanour) provided the words of the indictment covered the lesser offence 19.

15 Two features of the statutory scheme should be noted 20. First, the power to return a verdict of guilty of an offence not charged in the indictment is conditioned upon finding that the accused is not guilty of the offence charged. It is not correct to characterise s 239, as the appellant does, as conferring ‘an unqualified statutory right or power to find an accused person guilty of a lesser offence’.

16 Secondly, s 239 is expressed to apply to the trial on indictment of offences other than treason or murder. Professor Williams, writing of its English counterpart, observes that manslaughter is not correctly classified as an included offence. He suggests that its separate treatment as an alternative verdict under s 6(2) of the Criminal Law Act 1967 (UK) reflects the special features of the verdict of manslaughter 21.

17 The special features of the verdict of manslaughter on the trial of an indictment of murder are...