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District Court 10 October 2024

R v Tembeleski

[2024] NSWDC 503

Theft & property

Citation: R v Tembeleski [2024] NSWDC 503
Court: District Court of New South Wales
Date: 10 October 2024
Judge: Montgomery DCJ

Background

The accused stood charged on an amended indictment with one count under s 112(3) of the Crimes Act 1900 (NSW) (aggravated break and enter) and, in the alternative, one count under s 111(3) (break and enter). Both offences fell within the scope of s 115A of the Crimes Act, which provides a statutory framework for alternative verdicts in certain offences.

The trial commenced on 2 October 2024. The Crown made no reference to s 115A when opening to the jury, and no alternative counts beyond those already on the indictment were raised at that stage. The question of whether the jury should be directed on additional statutory alternative verdicts under s 115A did not arise until 8 October 2024.

Montgomery DCJ invited written submissions from both parties and delivered this ex tempore ruling on 10 October 2024, determining how the trial should proceed on the question of alternative verdict directions.

  • Whether the trial judge should direct the jury on further alternative verdicts available under s 115A of the Crimes Act 1900 (NSW), beyond the counts already on the indictment.
  • How the trial judge's duty to secure a fair trial interacts with the forensic choices made by counsel for each party.
  • What weight should be given to the timing of any such direction, and the stage the trial had reached.

Decision

Montgomery DCJ identified the governing principle from James v The Queen (2014) 253 CLR 475: the duty to instruct on alternative verdicts is an aspect of the broader duty to secure a fair trial. The question of whether omitting such an instruction causes a miscarriage of justice is assessed by reference to the real issues in the trial and the forensic choices of counsel. The court is not bound by those choices but must take them into account.

The Defence had made a clear forensic decision not to seek any direction on the statutory alternatives available under s 115A. Their written submission stated that the trial had been prepared and conducted to meet the offences as charged, and that full consideration had been given to the potential benefit or detriment to the accused of such a direction. The Defence had also elected not to open, leaving it to challenge the Crown case as called. The Crown acknowledged this position, while noting that the possibility of further alternatives could not be excluded depending on how the remainder of the trial unfolded.

Applying the general practice stated in R v Gulliford (2004) 148 A Crim R 558, the court noted that while it is generally inadvisable for a trial judge to raise an alternative count that trial counsel have not suggested, it is not forbidden. Relevant considerations include timing, whether counsel have had a proper opportunity to deal with the issue, and whether the defence would be prejudiced by the way the case was conducted.

At this stage of the trial, and in the absence of any observed need for further alternatives, the court determined it would not direct the jury on additional alternative counts under s 115A. However, the court expressly retained its responsibility for ensuring a fair trial and required the parties to revisit the issue before the close of the Crown case, and again before closing addresses if forensic choices had changed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that the duty to instruct a jury on alternative verdicts derives from the trial judge's overarching obligation to secure a fair trial, not from the parties' wishes alone.
  • Under the framework in James v The Queen, the real issues in the trial and the informed forensic choices of counsel are both relevant considerations when a judge decides whether to leave alternative verdicts.
  • A clear forensic decision by the defence, made after full consideration of the consequences, carries significant weight in this analysis, though it does not extinguish the judge's independent responsibility.
  • Timing matters: Gulliford indicates that any direction on alternative counts should generally be given at the earliest opportunity and, unless unavoidable, before the close of the Crown case.
  • The ruling was expressly provisional. Montgomery DCJ required the parties to revisit the s 115A question before the Crown case closed, preserving the court's ability to intervene if the fair trial obligation later demanded it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(3), 112(3), 115A

Cases
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338
- GM v R [2017] NSWCCA 298