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- “All or nothing trials”, alternative verdicts and the role of a trial judge – James v The Queen  HCA 6
Updated 28 July 2014
“All or nothing trials”, alternative verdicts and the role of a trial judge
“All or nothing trial” – alternative verdicts – intentionally causing serious injury – whether failure by trial judge to instruct jury as to lesser alternative verdicts occasioned substantial miscarriage of justice – role of trial judge – whether duty to secure fair trial required instruction on any lesser alternative verdicts regardless of forensic choices of counsel
Issues: Is a trial judge obliged to leave all possible alternatives to the jury for consideration in a non-murder case and irrespective of the wishes of defence counsel?
Facts: This case concerned a man found guilty in Victoria of intentionally causing serious injury. At trial, in response to a jury question, the prosecutor raised for the first time the question of whether the alternative verdict of intentionally causing injury simpliciter should be left to the jury. The trial judge said the case had not been put on this basis and that, to leave this alternative to the jury, would deprive the accused of the possibility of an acquittal. Defence counsel said nothing to contradict the judge’s view. The possibility of an alternative verdict of recklessly causing injury was not put to the jury either. On appeal, it was contended that the judge’s failure to tell the jury of these alternative verdicts constituted a miscarriage of justice. The Victorian Court of Appeal rejected this submission, taking into account the trial judge’s assessment that to put the alternatives would have been unfair and defence counsel’s acquiescence in this view by silence. The Court of Appeal also took into account that there was little evidence that raised the alternatives as real possibilities, as distinct from remote or artificial possibilities.
Held: (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) The decision of the Court of Appeal was correct. The High Court at  held that generally, it is not the duty of a trial judge to leave any lesser alternative verdict that is realistically open on the evidence regardless of the forensic decisions of counsel. At , the Court said that the authorities that concern the leaving of the alternative of manslaughter in murder cases do not state any wider principle applicable to non-murder cases. At , the Court endorsed the general rule in New South Wales (stated in R v Cameron  2 NSWLR 66; 8 A Crim R 466 at 71 (NSWLR); R v Pureau (1990) 19 NSWLR 372; 47 A Crim R 230 at 375–377 (NSWLR) per Hunt J) that it is unwise for a trial judge to direct on an alternative verdict in a case in which the parties had not raised that alternative.
However, at  the Court added this caveat:
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.
As to when failure to leave an alternative verdict will occasion a miscarriage of justice, at  the High Court referred to the reasons of Lord Bingham in R v Coutts  1 WLR 2154;  4 All ER 353 stating with apparent approval that:
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 [at ]. 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” [at ]. 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 [at ].
Remarks: The decision in James means that the decision in R v King (2004) 59 NSWLR 515; 144 A Crim R 405;  NSWCCA 20 at  where it was said that the principles applying to an alternative verdict of manslaughter in murder trials in authorities such as Gillard v The Queen (2003) 219 CLR 1; 139 A Crim R 100;  HCA 64, were held to apply to lesser offences as well, is no longer an accurate statement of the law. Various decisions have followed King such as R v Jacobs (2004) 151 A Crim R 452;  NSWCCA 462, Mifsud v The Queen  NSWCCA 313 and Blackwell v The Queen (2011) 81 NSWLR 119; 208 A Crim R 392;  NSWCCA 93. Each must now be looked at in the light of James.
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