Hidden defences and concealed charges

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.

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