Verdicts
Jury verdicts generally must be unanimous (in the case of murder it must always be unanimous): see s 59 Jury Act.
However, if a prescribed period has elapsed the judge may allow a majority verdict: s 59A Jury Act. A majority verdict means that 11/12 or 10/11 jurors agree. Juries do not provide reasons for their verdict but judges (in a judge alone trial) must do so: s 615(3).
However, if a prescribed period has elapsed the judge may allow a majority verdict: s 59A Jury Act. A majority verdict means that 11/12 or 10/11 jurors agree. Juries do not provide reasons for their verdict but judges (in a judge alone trial) must do so: s 615(3).
Alternative Verdicts
An alternative verdict is a verdict of guilty of an offence other than that charged. The issue may be raised by either party or by the judge. Ultimate duty lies with the Judge to instruct the jury to consider the alternative if it is fairly raised on the evidence: R v Willersdorf [2001] QCA 183. The High Court case of James v R (2014) 306 ALR 1 confirmed that the ultimate decision is for the judge and rests of whether an instruction as to an alternative is necessary for a fair trial. Alternatives can not be shut out by deals between prosecution and defence (R v Rehavi (1998) 101 A Crim R 569) rather there is an overarching requirement of the interests of justice (R v MBX [2013] QCA 214.)
'In summary, the duty to leave an alternative verdict to the jury depends upon the interests of justice, and the interests of justice are not determined by a request or the absence of a request by counsel to leave an alternative verdict. A request to leave an alternative verdict will not determine the matter if the alternative is not fairly open on the whole of the evidence. The interests of justice, including justice to the accused, may oblige a judge to leave an alternative verdict which is fairly open on the whole of the evidence in the absence of a request from defence counsel. The interests of justice, including the public interest that a guilty party is convicted of an alternative, lesser offence that is fairly open on the evidence, may oblige a judge to leave that alternative verdict despite a request by defence counsel that it not be left. The interests of justice are not determined by the tactical choices of defence counsel, acting on instructions, to "roll the dice." The duty of a trial judge to ensure a fair trial does not mean a trial judge will acquiesce in any request made by counsel... the ultimate duty to ensure fairness is not always achieved by acquiescing in the request of defence counsel.
The failure of defence counsel to seek an alternative verdict does not preclude an appellant from taking the point that the alternative should have been put and that a miscarriage of justice occurred. Still, a forensic decision to leave the jury with "a stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence because the opportunity of a conviction on the lesser offence was not left to the jury.' (R v MBX [2013] QCA 214, 14 [49]-[50]).
'In summary, the duty to leave an alternative verdict to the jury depends upon the interests of justice, and the interests of justice are not determined by a request or the absence of a request by counsel to leave an alternative verdict. A request to leave an alternative verdict will not determine the matter if the alternative is not fairly open on the whole of the evidence. The interests of justice, including justice to the accused, may oblige a judge to leave an alternative verdict which is fairly open on the whole of the evidence in the absence of a request from defence counsel. The interests of justice, including the public interest that a guilty party is convicted of an alternative, lesser offence that is fairly open on the evidence, may oblige a judge to leave that alternative verdict despite a request by defence counsel that it not be left. The interests of justice are not determined by the tactical choices of defence counsel, acting on instructions, to "roll the dice." The duty of a trial judge to ensure a fair trial does not mean a trial judge will acquiesce in any request made by counsel... the ultimate duty to ensure fairness is not always achieved by acquiescing in the request of defence counsel.
The failure of defence counsel to seek an alternative verdict does not preclude an appellant from taking the point that the alternative should have been put and that a miscarriage of justice occurred. Still, a forensic decision to leave the jury with "a stark choice between conviction on the more serious offence and complete acquittal will weigh heavily against any submission that the accused was deprived of a chance of acquittal of the more serious offence because the opportunity of a conviction on the lesser offence was not left to the jury.' (R v MBX [2013] QCA 214, 14 [49]-[50]).
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s 578Charged with Rape
* Can be convicted (if established on the facts of) 1. Sodomy 2. Att Sodomy 3. Indecent treatment of a child < 16 4. UCK 5. Abuse of intellectually impaired persons 6. Procuring for carnal knowledge 7. Procuring sexual acts by coercion 8. Incest or 9. Sexual Assault Charged with Sodomy * Can be convicted of 2,3, 5, 6, 7, 9 Charged with UCK * Can be convicted of 3, 6, 7 Charged with Unlawful/indecent assault (s 352(1)(a)) * Can be convicted of 3 Charged with incest/attempted incest * Can be convicted of 1-7 & 9, as well as rape/attempted rape Any substituted offence may be substituted in an aggravated form (eg. where the accused has the victim in his 'care'.) |
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