Citation: R v Adam Thomas Orlowsky [2008] NSWDC 368
Court: District Court of New South Wales
Date: 13 August 2008
Judge(s): Cogswell SC DCJ
Background
The accused faced two counts on an indictment: count 1, aggravated sexual assault, and count 2, assault occasioning actual bodily harm, pleaded as an alternative to count 1. Upon arraignment, the accused pleaded not guilty to count 1 but guilty to count 2.
The Crown did not accept the guilty plea on count 2, which meant that count fell to be determined at trial alongside count 1. The jury was sworn to try both counts, but the correct approach to that arrangement required judicial resolution before addresses.
A second procedural question arose during the defence cross-examination of the complainant. It became apparent on the evidence that the jury might, if it accepted part of her account, return a verdict on an attempt to commit aggravated sexual assault, an alternative that had not been pleaded on the indictment and had not been opened by the Crown.
Legal Issues
- Where an accused pleads not guilty to a primary count but guilty to an alternative count, and the Crown does not accept the guilty plea, should both counts go before the jury, or only the count on which a not guilty plea was entered?
- Where a possible alternative verdict of attempt emerged from the evidence but was never pleaded or opened by the Crown, should the trial judge leave that alternative to the jury?
Decision
Issue 1: Whether both counts remain before the jury
Cogswell SC DCJ identified a divergence in practice between jurisdictions. The Criminal Trial Courts Bench Book published by the Judicial Commission of NSW endorses the English approach, established in Regina v Cole [1965] 2 QB 388: where a guilty plea to an alternative count is not accepted by the Crown, only the count on which the accused pleaded not guilty goes to the jury. The alternative count is dealt with after verdict, either by conviction on the admission or by being left on the file.
Victorian courts take a different approach, set out in Regina v Broadbent [1964] VR 733 and affirmed by the Victorian Court of Appeal in DPP v Collins [2004] VSCA 179. Under that approach, both counts are left before the jury, which may be directed to use the guilty plea as an admission when considering the alternative count. The Victorian reasoning includes a concern that withdrawing the lesser charge might be taken as an acceptance of the plea, potentially giving rise to an autrefois convict answer to the primary charge (a plea in bar asserting the accused has already been convicted of the same matter).
The judge accepted that NSW practice is likely reflected in the Bench Book. However, because the jury had already been sworn to try both counts, withdrawing count 2 at that stage risked affecting the integrity of the proceedings. Finding Victorian authority sufficient to support proceeding with both counts before the jury, the judge declined to withdraw count 2.
Issue 2: Whether the attempt alternative should be left to the jury
The Crown conceded that the alternative of attempted aggravated sexual assault was available on the evidence, had not been pleaded, and had not been opened. Counsel for the accused raised two sources of prejudice. First, had the alternative been flagged at the outset, defence counsel would have conducted cross-examination of the complainant with greater caution, and the cross-examination actually conducted had been shaped by a different forensic objective. Second, the case turned on a binary factual dispute: either penetration occurred or no sexual contact occurred at all. Leaving an attempt alternative created a real risk of a compromise verdict between those two positions.
The judge found both grounds of prejudice real and persuasive. The alternative was not left to the jury.
Orders Made
No formal orders were made in this decision; it is a ruling on two procedural questions arising during trial.
Key Takeaways
- The District Court identified an unresolved divergence in NSW practice between the English approach (only the not-guilty count goes to the jury where a guilty plea to an alternative is not accepted) and the Victorian approach (both counts remain before the jury), noting that the NSW Bench Book favours the English position.
- Where a jury has already been sworn to try both counts, withdrawing an alternative count mid-trial may itself compromise the integrity of the proceedings, a consideration that weighed in favour of allowing both counts to remain.
- The Victorian concern that withdrawing a lesser count might be construed as acceptance of a guilty plea, and thereby found an autrefois convict defence to the primary charge, was acknowledged as a legitimate basis for permitting both counts to proceed.
- A trial judge retains discretion to decline to leave an uncharged alternative to the jury where that alternative was not pleaded or opened and where leaving it would cause real forensic prejudice to the accused, including by undermining strategic decisions already made in cross-examination.
- The risk of a compromise verdict is a recognised form of prejudice: where the factual contest is binary, leaving an intermediate alternative may distort the jury's reasoning rather than assist it.
Legislation and Cases Referenced
Cases:
- Regina v Cole [1965] 2 QB 388 (Court of Criminal Appeal, England)
- Regina v Broadbent [1964] VR 733 (Full Court of the Supreme Court of Victoria)
- DPP v Collins [2004] VSCA 179 (Victorian Court of Appeal)
Texts:
- Criminal Trial Courts Bench Book (Judicial Commission of New South Wales)