Alternative Verdicts in Criminal Law

Being charged with a criminal offence can be daunting, and being acquitted of the charges following a hearing or trial is obviously a desirable outcome for any defendant.

But did you know that in some situations, you can be acquitted of one (or several) offences and instead convicted of an alternative, less serious offence?

When Can an Alternative Verdict Be Returned?

The law recognises three main situations where a verdict for an alternative charge may be returned after a defendant is found ‘not guilty’ of another, more serious offence.

1. Where an alternative charge is listed in the indictment

Section 23(3) of the Criminal Procedure Act 1986 (NSW) allows a defendant to be convicted of an alternative charge where it is listed on the same indictment.

Under section 15(2), an indictment broadly refers to ‘a court attendance notice or any other process or document by which criminal proceedings are commenced.’ A Court Attendance Notice (CAN) is the piece of paper that a person receives when they are charged with a criminal offence.

CANs can be a small, yellow slip of paper handed to a defendant somewhere away from the police station; such as at a festival or in a hotel. These are called ‘Field CANs’. Alternatively, the CAN may be a typed document given to the defendant at the police station, which will also contain a narrative of the allegations against the defendant – known as the ‘full facts’.

The CAN will set out the offence or offences that the defendant has been charged with, as well as other information such as the court date and location.

Police will sometimes list one or more ‘alternative charges’ on the court attendance notice if there is a chance that the main charge may be dropped prior to a hearing or trial, or where there is a possibility that the defendant may be found ‘not guilty’ of a more serious charge due to a lack of evidence or some other reason.

For instance, if a person is allegedly involved in a fatal police pursuit, police may include a main charge of ‘dangerous driving occasioning death’ and the less serious charges of ‘police pursuit’, ‘negligent driving occasioning death’ and perhaps ‘speed by more than 45km/h’ – to reduce the likelihood of the defendant escaping ‘scot-free’ if they are found not guilty of the main charge.

2. Where there is a ‘statutory alternative’

Another situation where an alternative verdict can be returned is where a person has been acquitted of an offence which has a ‘statutory alternative’.

This is where the legislation specifically states that a person can be convicted of a different charge if one or more of the elements of the main charge are not satisfied, provided that all of the elements of the alternative charge are established.

Statutory alternatives can apply to offences of ‘specific intent’. As discussed on one of our recent blogs, a specific intent offence is one which requires the prosecution to prove beyond reasonable doubt that the defendant had an ‘intention to cause a specific result.’

One example of a specific intent offence is ‘wounding or causing grievous bodily harm with intent to do so’.

The Crimes Act says that if a defendant is found not guilty of this offence, but the jury believes that there is enough evidence to prove that they recklessly caused wounding or grievous bodily harm, the jury may instead find the defendant guilty of the latter, less serious offence, which carries a lower maximum penalty.

Another example of a specific intent offence is murder. In cases where there is not enough evidence to prove beyond a reasonable doubt that a defendant intended to kill or cause grievous bodily harm to another person, they may instead find the defendant guilty of manslaughter.

3. Where the allegations amount to an ‘included offence’

The last situation is where a defendant is found not guilty of the offence which they have been charged with, but the allegations in the indictment amount to another offence.

These are known as ‘included offences’. They differ from ‘statutory alternatives’ because the alternative charge is not specified in the legislation.

The test of whether an alternative verdict for an included offence can be returned is ‘whether proof of the lesser offence was a necessary step in proving the offence charged.’

Perhaps the most common examples are ‘drug supply’ and ‘assault occasioning actual bodily harm’ (AOABH).

If a person is charged with ‘drug supply’ but the prosecution cannot establish the element of supply, the defendant may instead be found guilty of ‘drug possession’ – even if that charge is not contained in the CAN.

Similarly, if the defendant is charged with AOABH but the prosecution cannot establish the required level of injury, then the defendant may still be convicted of ‘common assault’ if the ingredients of that offence are made-out.

Another example is making or using a false official instrument to pervert the course of justice under section 318 of the Crimes Act.

If the elements of that offence are not made out beyond a reasonable doubt, but the ingredients of ‘perverting the course of justice’ are, the defendant may be found guilty of the general offence of perverting the course of justice under section 319 of the Crimes Act.

Does The Failure to Raise An Alternative Charge Amount to a Miscarriage of Justice?

Some defendants might argue that a failure by a trial judge to raise the possibility of an alternative charge, which carries a lower penalty, might amount to a miscarriage of justice if they are convicted of a more serious offence.

This very issue was considered in the recent High Court case of James v The Queen (2014).

The case involved a Victorian defendant who was charged with intentionally causing serious injury. The prosecution raised the question at trial as to whether the jury should be allowed to consider an alternative, lesser charge of intentionally causing injury – as distinct from ‘serious’ injury.

The trial judge suggested that because the case had not been run on the basis of the alternative charge, it would be unfair to allow the jury to consider this alternative as it could deprive the defendant of an acquittal.

But in an unfortunate turn of events, Mr James was not acquitted – he was found guilty of intentionally causing serious injury and sentenced accordingly. Mr James appealed to the High Court, arguing that the trial judge’s failure to allow the jury to consider the alternative, less serious charge constituted a miscarriage of justice.

But the High Court held that it is not up to a trial judge to tell a jury to consider alternative charges when neither the prosecution nor the defence has raised it, and where the evidence did not raise the alternative charge as a ‘real possibility’.

However, this did not exclude the potential for such actions to amount to a miscarriage of justice in every case.

Rather, the court said that determining whether or not a miscarriage of justice had occurred required an assessment of ‘what justice to the accused required in the circumstances of the particular case,’ as well as a consideration of any decision by the parties to not raise the alternatives and the ‘real issues in the trial.’

Criminal defence lawyers will often refrain from raising alternative charges so as not to jeopardise their chances of an outright acquittal.

But case law makes it clear that, provided the above requirements are met, the trial judge can raise an alternative verdict to ensure a fair trial, despite any objection by the defence.

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