James v The Queen [2014] HCA 6

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

SAMUEL JAMES APPELLANT

AND

THE QUEEN RESPONDENT

James v The Queen [2014] HCA 6 5 March 2014 M102/2013

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

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))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ. 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. 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. 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. 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 Saad, held that the interests of justice had not required that the further alternative verdicts be left. 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. In dissent, Priest JA held that Saad was wrongly decided. 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. This approach holds that the statements in Gilbert v The Queen and Gillard v The Queen, 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. On 16 August 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 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. 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. Thirdly, the statements in Gilbert concerning jury deliberations 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. 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 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. 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. 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 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." The provision is modelled on s 6(3) of the Criminal Law Act 1967 (UK). The enactment of the English provision followed the recommendation of the Criminal Law Revision Committee. 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. Two features of the statutory scheme should be noted. 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". 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. The special features of the verdict of manslaughter on the trial of an indictment of murder are the product of the development of the law of homicide, which is detailed in a number of this Court's decisions. It is sufficient for present purposes to observe that murder and manslaughter emerged as forms of the one felony. By statute, murder became the non-clergyable form of the felony. Murder was distinguished from other homicides by the presence of malice aforethought. It was open on the indictment to return a verdict of murder or manslaughter. Sir Owen Dixon, writing extra-curially in 1935, explained the point of present significance: "[T]he difference between murder and manslaughter was not the difference between two distinct felonies, but the difference between two descriptions of the one felony. They were differentiated only because the consequences of a conviction had, by statute, ceased to be the same. But the fact that the two descriptions formed only one felony is reflected in one consequence which profoundly affects the practical conduct and often the result of a murder trial of today. For it is because homicide is a single felony, that, upon an indictment of murder, a verdict of manslaughter may be found." The practical conduct of the trial of an indictment of murder at the time Sir Owen Dixon was writing was understood to require a trial judge to leave manslaughter in any case in which the accused or the jury asked about the matter notwithstanding that the facts did not support it. That understanding was corrected in Gammage v The Queen, which held that the jury did not have a right to return a "merciful" verdict of manslaughter. The obligation to leave manslaughter in most, although not all, cases was identified by Barwick CJ as arising from the necessity to satisfy the jury of the elements of murder. This was so whether the element in issue was proof of the intention accompanying the unlawful and dangerous act causing death or whether the prosecution had negatived a partial defence. In Varley v The Queen his Honour explained the obligation as one that is owed to the accused and the Crown alike. In the latter connection, his Honour observed that in default of the jury's satisfaction of all the elements of murder, the Crown was not to be denied a verdict. As will appear, there is good reason not to extend this reasoning to the trial of offences generally. While the trial of an indictment of murder required that the jury be directed on manslaughter where that verdict was open on a view of the facts, the consequences of the wrongful failure to give the direction differed. Where there was material before the jury raising the partial defence provocation, the failure to leave manslaughter was likely to constitute a substantial miscarriage of justice: the verdict of murder did not gainsay that the jury might have convicted of manslaughter had it been invited to consider the matter. The wrongful failure to leave manslaughter in other circumstances did not necessitate the conclusion that the trial had miscarried: the verdict of murder demonstrated the jury's satisfaction of the accused's liability for that offence. The correctness of the latter assumption was the issue in Gilbert. Gilbert and Gillard In Gilbert the jury was instructed that on the view of the facts for which the defence contended the accused was entitled to outright acquittal. The direction accorded with the law as it was understood at the time. The understanding proved to be wrong, as on the view of the facts for which the defence contended, it had been open to convict Gilbert of manslaughter. The question in this Court was whether the Queensland Court of Appeal erred in dismissing Gilbert's appeal against his conviction for murder under the proviso in s 668E(1A) of the Criminal Code (Q). The majority held that the verdict did not preclude the possibility that the jury had not applied the instructions concerning proof of the elements of murder. Gleeson CJ and Gummow J disavowed that appellate courts are to assume a mechanistic approach to fact-finding on the part of the jury. In this context, their Honours observed that the jury's findings of fact are made in the context of instructions as to the consequences of the findings. They referred with approval to statements in Mraz v The Queen concerning the "realities" of jury deliberations when murder is in issue. In Mraz those realities were that murder was punishable with death. Gleeson CJ and Gummow J considered that an equally influential contemporary reality is that "[t]his is an age of concern for the victims of violent crime, and their relatives" (emphasis added). Callinan J, the other member of the majority, also reasoned that it is contrary to human experience, where there is a choice of decisions, that what is chosen will be unaffected by the variety of choices offered. The rationale of the decision in Gilbert is discussed in Gillard. In that case manslaughter was not left when, on a view of the facts, it was an available verdict, albeit not one for which the defence contended. As Hayne J explained, the holding in Gilbert precluded the appellate court from taking into account the findings made by the jury and for this reason it could not be concluded that Gillard had not lost a chance of more favourable verdicts than those that the jury returned. Gilbert and Gillard are concerned with the consequences of the wrongful neglect of the obligation to leave manslaughter to the jury in any circumstance in which it is open. History and recognition of the gravity of conviction for murder inform the obligation. Gilbert and Gillard do not state any wider principle respecting the obligation to leave alternative verdicts for included offences (including alternative verdicts for offences other than manslaughter on an indictment of murder) or the consequences of the failure to do so. The rationale of the proposed rule In the appellant's submission, the contention that the principles in Gilbert and Gillard should be extended to the trial of all offences arises from the trial judge's obligation to ensure the fair trial of the accused. That obligation was explained by Barwick CJ in a frequently cited passage in Pemble v The Queen: "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, in my opinion, 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." Pemble was concerned with the trial of an indictment of murder. Consistently with the submissions of defence counsel the trial judge instructed the jury that it was a case of murder or manslaughter. The trial judge did not in terms instruct the jury that it was open to acquit. No question arose in Pemble of the obligation to instruct the jury on liability for included offences. Such authority, as there was at the time, was against the existence of an obligation to leave every included offence comprised in the allegations in the indictment. The correctness of that line of authority was later affirmed by the English Court of Appeal in R v Fairbanks, in which it was said that an obligation to leave a lesser alternative arises only if it is necessary in the interests of justice to do so. 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. Reference should here be made to the decision of the House of Lords in R v Coutts, upon which the appellant relies. Coutts, like Gillard, was concerned with a trial of murder at which, with the concurrence of the parties, manslaughter was not left although that verdict was open. Lord Bingham of Cornhill endorsed the reasoning of the majority in Gilbert. His Lordship went on to propose that at any trial on indictment, irrespective of the wishes of trial counsel, any obvious alternative verdict for which there is evidence should be left. Two features of the proposed rule may be noted. First, its confinement to an "obvious" alternative verdict is by way of contrast with alternative verdicts "which ingenious counsel may identify through diligent research after the trial". Secondly, the interest that the proposed rule serves is the public interest in the administration of justice: in some cases application of the rule would benefit the accused, protecting against an excessive conviction, and in other cases it would benefit the public, providing for the punishment of a lawbreaker who is deserving of punishment. 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". 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. The starting point in this consideration is Barwick CJ's frequently cited account of the incidents of the criminal trial: "It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law." 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. 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. 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. 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. Statements in the authorities favouring the existence of an obligation to leave any alternative verdict open on the evidence have not been sourced in fair trial principles but in a different and wider public interest. Phillimore J distinguished the two in Parrott. Delivering the reasons of the Court of Criminal Appeal in 1913, his Lordship allowed that there may be cases in which the interests of the accused require that a lesser verdict is left. By comparison, his Lordship considered there to be many cases in which the interests of justice will not be met unless the jurors are informed that they may convict of a lesser offence since otherwise "thinking it a case of 'neck or nothing,' they may acquit altogether". An accused may successfully raise a plea in bar on arraignment for an offence of which the accused might have been convicted on the allegations in the indictment at an earlier trial. This consideration inclined King CJ to the view in Benbolt v The Queen that it was the trial judge's obligation to direct the jury on any alternative verdict, notwithstanding that the parties had made no reference to that possibility. The failure to do so might preclude the prosecution of the accused for an offence of which he or she was guilty. Contrary to the burden of the appellant's argument, King CJ considered that the overriding fair trial obligation would in an appropriate case justify the decision not to leave an alternative verdict. 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. 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. Did justice to the appellant require that the lesser alternative verdicts be left? It is sufficient to refer in broad outline to the evidence in order to explain why the interests of justice to the appellant did not require the further alternative verdicts to be left for the jury's consideration. The incident occurred at night time in the car park of a suburban shopping centre. There was evidence that the appellant and Mr Sleiman had arranged to meet in connection with a debt alleged to be owed by Mr Sleiman to the appellant. It appeared that Mr Sleiman had armed himself with a knife before going to the meeting. It was not in issue that Mr Sleiman was struck by the appellant's vehicle and that as a result he suffered extensive serious injuries. At the trial Mr Sleiman claimed to have no recall of the circumstances of the collision. In a statement earlier made to the police Mr Sleiman had given an account that the appellant had put his vehicle into reverse and swung the steering wheel such that the front of the vehicle struck him as it reversed. The only direct evidence of the collision was that of an eye witness, Monica Woods, a 17 year old high school student. Ms Woods described seeing the appellant's vehicle as "revving back and forth ... and then moving forward". She saw a man who was standing in front of the vehicle projected a few metres into the air. The vehicle drove over the body and away. In cross-examination Ms Woods acknowledged that she had not given an account of the vehicle driving over the body in her police statement. She also acknowledged that at the committal hearing she had said that after the vehicle hit the man she had not seen it run over him. There was expert evidence that Mr Sleiman had suffered significant and potentially life-threatening injuries. In the expert's view, these were the result of a direct or forceful blunt trauma from impact with the front or the rear of the vehicle and were unlikely to have been caused by a "glancing blow". No evidence was adduced by the defence. The appellant relies on Priest JA's analysis in support of his contention that his fair trial required that each alternative verdict be left. That analysis is as follows: "In my opinion, the jury would have been entitled to come to the conclusion that they could not reject, on the criminal standard, the thesis that [Mr Sleiman] was struck only a glancing blow; or, perhaps more importantly, that the appellant's appreciation was that he had only struck a blow less severe than what appears to have been the reality. The jury would, I think, legitimately have been entitled to conclude that [Mr Sleiman] – despite his claimed lack of recall – had accurately described to the police in his initial version of events the manner in which the vehicle struck him. … That being so, I think that it would have been open to the jury to find that the appellant did not intend to cause serious injury (or that he foresaw the probability of serious injury being caused); or, at least, to have entertained a reasonable doubt about it." It may be accepted that it was open to reject the more graphic aspects of Ms Woods' evidence and to consider that Mr Sleiman had been struck by the vehicle as it reversed. Proof of the offence charged in count one required satisfaction that the appellant intended to cause serious injury by striking Mr Sleiman with his vehicle. In the event the jury was not so satisfied it was required to consider whether at the time the appellant drove his vehicle so as to strike Mr Sleiman he was aware that he would probably cause him serious injury and with that awareness he nonetheless proceeded to hit him. The reasonable possibility that Mr Sleiman sustained his injuries as the result of being struck a glancing blow by the appellant's vehicle as he manoeuvred the vehicle in reverse was relied upon by the defence as requiring his acquittal. The elimination of that reasonable possibility was the central issue in the case. "Serious injury" need not amount to grievous bodily harm for the purposes of these offences. Injuries consisting of the infliction of black eyes and grazes to the head and face have been held to amount to serious injury. Logic may commend that evidence supporting an inference of an intention to cause serious injury must support an inference of intention to cause injury. In this sense it can be said that each of the alternatives was "viable". To distinguish the intention to injure from the intention to cause serious injury, as defined, in the context of giving effect to the intention by deliberately hitting a person with a motor vehicle has a degree of subtlety rightly characterised by Whelan JA as artificial. That observation is even more apt when considering the claimed necessity to direct the jury of the availability of the alternative verdict in recklessness. 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. The appeal must be dismissed.