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10
Court of Criminal Appeal 20 February 2004

Regina v King

[2004] NSWCCA 20

Also reported as (2004) 59 NSWLR 515
Assault & violenceTheft & property

Citation: Regina v King [2004] NSWCCA 20
Court: New South Wales Court of Criminal Appeal
Date: 20 February 2004
Judge(s): Grove J; Smart AJ; Davidson AJ

Background

The appellant was charged with armed robbery, with the Crown alleging he had produced and brandished a screwdriver to threaten the complainant, a shopkeeper, during the course of stealing from her. At trial, the appellant gave evidence admitting only to larceny, denying that he had used or threatened anyone with a screwdriver. His counsel sought a finding of simple larceny, characterising the incident as a spontaneous "snatch and grab."

During the trial, the question of leaving robbery simpliciter (that is, unarmed robbery) as an alternative verdict arose in the absence of the jury. Both defence counsel and the Crown prosecutor agreed that robbery was available as an alternative verdict at common law. The trial judge (English DCJ) refused to direct the jury on robbery, taking the view that a separate count in the indictment was required before such a verdict could be returned.

The appellant was convicted of armed robbery. He appealed to the Court of Criminal Appeal on several grounds, the most significant being that the trial judge had erred by refusing to direct the jury on the lesser alternative of robbery.

  • Whether robbery simpliciter is an available alternative verdict at common law on an indictment charging armed robbery with an offensive weapon, without needing a separate count
  • Whether the principle in Pemble v The Queen (124 CLR 107), requiring a judge to direct a jury on lesser available verdicts where the evidence supports them, extends beyond the field of murder and manslaughter
  • Whether, on the evidence at trial, there was a sufficient basis to leave robbery as an alternative verdict to the jury
  • Whether other grounds of appeal (concerning re-examination evidence and a Jones v Dunkel direction) warranted intervention

Decision

The Court of Criminal Appeal allowed the appeal by majority (Grove J and Smart AJ), with Davidson AJ dissenting on the key ground. The majority held that the trial judge erred in law by refusing to direct the jury on robbery as an alternative to armed robbery.

Grove J confirmed that the principle in Pemble v The Queen is not confined to charges of murder and manslaughter. Where there is a viable evidentiary basis for a lesser available verdict, a trial judge's failure to direct the jury on that alternative can constitute an error of law. Grove J drew support from the subsequent High Court decisions in Gilbert v The Queen (2000) 201 CLR 414 and Gillard v The Queen [2003] HCA 64, and noted that Mason P in Elfar had expressly accepted that Pemble extends beyond homicide. The trial judge's stated reason for refusing the direction, namely that a separate indictment count was required, was incorrect, and this was conceded by the Crown on appeal.

Grove J was careful to note that a judge is not obliged to direct on every theoretically available lesser offence in every case. Factors relevant to whether a direction is required include the way the case was conducted, the strength of the evidentiary basis for the lesser verdict, and whether leaving the alternative would distort the issues before the jury or prejudice the interests of justice. In this case, however, all the relevant circumstances pointed toward a direction being required: the evidence was genuinely contested on the question of whether the screwdriver was used, counsel had expressly raised robbery as an alternative, and the refusal was based on a legal error.

Davidson AJ dissented on the first ground, concluding that the evidence of threats or conduct capable of constituting robbery (absent the screwdriver) was insufficient to ground a direction. Davidson AJ took the view that any apparent threat arose solely from the appellant's use of the screwdriver, and that if the jury were not satisfied the screwdriver was used, there was no independent basis for robbery. On the remaining grounds of appeal, all three judges agreed that no intervention was warranted.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • The principle in Pemble v The Queen, requiring a trial judge to direct a jury on lesser available verdicts where the evidence supports them, extends beyond murder and manslaughter to other serious offences, including armed robbery.
  • At common law, robbery simpliciter is an available alternative verdict on an indictment charging armed robbery with an offensive weapon; no separate count in the indictment is required.
  • A direction on a lesser alternative verdict is not required in every case: the evidentiary basis for the lesser offence must be viable, and the court must assess whether leaving the alternative would serve or distort the interests of justice, having regard to how the case was conducted.
  • Where a trial judge's refusal to direct on a lesser alternative verdict is founded on a legal error, and there is a genuine evidentiary basis for that lesser verdict, the omission can deprive an accused of a fair chance of conviction on the lesser charge and constitute reversible error.
  • The majority and dissent in this decision illustrate that the question of whether sufficient evidence exists to ground an alternative verdict direction can be genuinely contestable, particularly where the threatening conduct is said to arise solely from the use of a weapon the jury may disbelieve was present.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Pemble v The Queen (1971) 124 CLR 107
- Gilbert v The Queen (2000) 201 CLR 414
- Gillard v The Queen [2003] HCA 64
- R v Elfar (2000) 115 A Crim R 64
- Mraz v The Queen (1955) 93 CLR 493
- Gammage v The Queen (1969) 122 CLR 444
- R v Fairbanks [1986] 1 WLR 1202
- R v Rehavi (1998) 101 A Crim R 569
- Elliott and Hitchins [1983] 3 NSWLR 318
- R v Cameron (1983) 2 NSWLR 66
- R v Fowler [2003] NSWCCA 321
- Benbolt (1993) 67 A Crim R 11
- Maxwell [1988] 1 WLR 1265
- Reg v Saunders [1986] 1 WLR 1163
- R v Parrott (1913) 8 Cr App R 186
- Jones v Dunkel