Defence
lawyers are familiar with the difficulty of deciding how to make the best of
one defence while not losing a fall-back defence in the event that the first is
unsuccessful. You can’t credibly build a case that “My client didn’t do it, but
if he did he was forced to, but if he wasn’t he did it in self defence, but if
he didn’t it was an accident.” Plainly the defence case is that the defendant
didn’t do it. The judge, on the other hand, may have to consider evidence that
if the defendant did do it, he acted in self defence, or that some other
defence appears on the evidence to require to be considered.
“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 [Footnote: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117-118 per
Barwick CJ.]. 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.”
James v The Queen [2014] HCA 6 (5 March 2014) joint
judgment at [31], and see Gageler J at [69].
Another
aspect of the judge’s duty to ensure a fair trial for the defendant comes into
play when a separate issue arises: should the judge leave open the opportunity
for a conviction on another offence that may, on the evidence adduced at trial,
have been committed? That is, by way of an alternative verdict. For example, a
defendant may argue on an appeal against conviction that the trial court did
not have the opportunity to consider a lesser offence in respect of which it
may have preferred to find the defendant guilty.
In James the jury had found the defendant
guilty of intentionally causing serious injury. There had been an alternative
count of recklessly causing serious injury. On appeal he argued that the jury
should have had the opportunity to consider the lesser offence of intentionally
causing injury (that is, ordinary old injury). The defence case at trial had
been that the defendant had caused the injury accidentally.
A tactical
decision had been made at trial not to seek the alternative verdict of intentionally
causing injury.
The defendant
was understandably not, at trial, saying “It was an accident, but if it wasn’t
I didn’t appreciate the risk of injury, but if I did, I didn’t mean to cause
injury, but if I did, I didn’t mean it to be serious injury.” He wanted the
jury to reject the serious allegation and to acquit him outright, without
bothering itself over whether he may have committed the lesser offence.
On the facts
of this case, where a car had allegedly been used to cause the injury, the
majority, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, held that there
had been no unfairness because it would be artificially subtle [47] to expect
the jury to distinguish between an intent to cause serious, as opposed to
ordinary, injury, and that the defendant could not have been prejudiced by the
omission an alternative verdict [48]. Gageler J dissented on this issue. He
regarded the distinctions between the degrees of injury as something that the
jury could have considered when determining the defendant’s state of mind [88].
Since the defendant could have been convicted of the lesser offence, he
concluded that there had been a substantial miscarriage of justice in not
leaving it for the jury’s decision [89].
The judicial
approach to alternative verdicts is summarised by the majority [37]:
“
... 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 ... .”
But Gageler J
considered [71] that the relevant statutory environment required the judge to
direct the jury on alternative offences
“
... whenever it was open on the evidence for the jury to find the accused not
guilty of the offence charged but guilty of the alternative offence, unless the
giving of the direction would be unfair to the accused in the particular
circumstances of the case.”
He observed
that this was consistent with the common law as stated by Lord Bingham in R v Coutts, discussed here
on 21 July 2006.
The majority,
however, put the focus on the real issues in the trial, assessed in the light
of the prosecutorial decision as to what charges to prefer:
“[33]
... 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.”
And
“[37]
... 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 [the
judicial and prosecutorial] 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. ...”
That is to
say, judges shouldn’t be surrogate prosecutors. It is for the prosecutor to say
at trial, and at a stage of the trial when it is fair to do so, whether
conviction is sought for any included offence.
