Citation: Miranda v R [2016] NSWCCA 283
Court: Court of Criminal Appeal, New South Wales
Date: 14 December 2016
Judge(s): Hoeben CJ at CL, Campbell J (principal judgment), Button J
Background
The appellant was a kickboxing instructor who was convicted by a District Court jury of entering a dwelling armed with an offensive instrument with intent to commit a serious indictable offence (assault occasioning actual bodily harm), contrary to s 111(1) of the Crimes Act 1900 (NSW). The incident occurred on 4 October 2013, when the appellant attended the home of her student following a dispute at the gym.
The Crown alleged the appellant forced her way into the complainant's home armed with a stocking weighted with a ball, struck the complainant multiple times with it, and then punched her in the face while making threats. The appellant's version was that she entered with the complainant's permission out of concern about drug use, and that she struck the complainant only in self-defence after being pushed.
The indictment contained two counts, framed as alternatives: the more serious aggravated breaking-and-entering offence under s 112(2), and the lesser aggravated entry offence under s 111(2). The jury acquitted on all three of the more serious alternatives but convicted on the least serious charge available, the s 111(1) offence.
Legal Issues
- Whether the conviction under s 111(1) was unreasonable because it was logically inconsistent with the jury's acquittals on the other counts
- Whether the trial judge was required, as part of the duty to ensure a fair trial, to leave the lesser common law alternative of assault occasioning actual bodily harm for the jury's consideration, even though neither the Crown nor the defence requested it
Decision
Ground 1: Inconsistent verdicts
The Court rejected the argument that the verdicts were logically irreconcilable. The jury's acquittals on the more serious charges were consistent with a finding that the appellant had not broken in and was not armed with the alleged weapon, while still accepting that she entered the dwelling intending to commit an assault. The jury was entitled to accept parts of the complainant's evidence and reject others. No rational path to the guilty verdict was foreclosed by the acquittals.
The Court noted that the trial judge had observed during sentencing that the verdicts necessarily reflected a partial acceptance of each witness's account. The Court found no basis to suppose the jury had impermissibly compromised on the least serious charge rather than reaching a reasoned conclusion. This ground was dismissed.
Ground 2: Failure to leave a lesser alternative
The appellant argued the trial judge should have directed the jury on the availability of a common law verdict of assault occasioning actual bodily harm, even though neither party requested it. The Court applied the High Court's reasoning in James v The Queen (2014) 253 CLR 475, which emphasised that the prosecution bears the responsibility for the charges it brings, and that imposing an affirmative duty on a trial judge to invite the jury to consider an uncharged alternative is incompatible with the separation of functions in an adversarial trial.
The Court also gave significant weight to the fact that the defence had actively sought a full acquittal and had not requested the alternative direction. Overriding that considered tactical position could have undermined the appellant's own case. Additionally, the Court accepted there was force in the Crown's submission that assault occasioning actual bodily harm was not in any event an available alternative to the s 111(1) offence, as it is not an element of that offence. This ground was also dismissed.
The Court further noted that James must be taken to have impliedly overruled the earlier New South Wales decision of R v King (2004) 59 NSWLR 515, reinstating the approach previously taken in R v Cameron and R v Pureau.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Inconsistent verdicts will not ground a successful appeal merely because the jury accepted only parts of a witness's evidence across different counts. The test is whether there is a rational path to the verdict that is consistent with the acquittals, not whether every element of a witness's account must stand or fall together.
- Under the principle confirmed in James v The Queen (2014) 253 CLR 475, a trial judge is not under a general duty to leave lesser alternative offences to the jury where the prosecution has not charged them. Doing so would cut across the adversarial structure of the criminal trial.
- Where defence counsel has made a deliberate tactical choice to pursue outright acquittal, courts will be slow to override that position by introducing lesser alternatives not sought by either party.
- A lesser alternative verdict is only available where the uncharged offence is an element of the charged offence. Assault occasioning actual bodily harm, the Court found, is not an element of the s 111(1) entering-a-dwelling offence, so it was not an available alternative in any event.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that James impliedly overrules R v King, restoring an earlier line of New South Wales authority consistent with the High Court's approach.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 111, 112, 115A
- Criminal Appeal Act 1912 (NSW), s 5
Cases
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- James v The Queen (2013) 39 VR 149
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15
- R v Keenan (2009) 236 CLR 397; [2009] HCA 1
- R v Markuleski (2001) NSWLR 81; [2001] NSWCCA 290
- Pillay & Ors v R (2014) 43 VR 327; [2014] VSCA 249
- R v King (2004) 59 NSWLR 515
- R v Cameron [1983] 2 NSWLR 66
- R v Pureau (1990) 19 NSWLR 372
- R v Kirkman (1987) 44 SASR 591