An alternative verdict can be returned by the jury where it is charged by the Crown on the indictment (see s 23(3) Criminal Procedure Act 1986) or where it is available as an included offence at common law (see James v The Queen (2014) 253 CLR 475 at [14]) or under a particular statutory provision. Notable examples of the latter include ss 33(3), 80AB, 86(4), 97(3) and 193E Crimes Act 1900. Section 162 Criminal Procedure Act permits a jury to return an alternative verdict of attempt for any indictable offence. Section 153 Criminal Procedure Act provides for the taking of a guilty plea to an alternative charge “of some other offence not charged in the indictment”.

The Crown should indicate in its opening whether it relies upon any statutory or common law alternatives to the offence charged in the indictment. Generally, it is prudent practice for the judge to raise with the parties the issue of whether an alternative verdict is available at least prior to closing addresses in order to avoid possible unfairness to the defence: Sheen v R (2011) 215 A Crim R 208 at [82], [90]; James v The Queen at [34] approving R v Cameron [1983] 2 NSWLR 66 at 71 and R v Pureau (1990) 19 NSWLR 372 at 375–377.

The judge’s duty to instruct the jury on an alternative verdict is an aspect of the duty to ensure a fair trial: James v The Queen (2014) 253 CLR 475 at [38]. The judicial obligation to leave manslaughter to the jury as an alternative to murder (regardless of the stance of trial counsel) is a product of the development of the law of homicide. It does not extend to the trial of offences generally: James v The Queen at [19], [23] disapproving R v King (2004) 59 NSWLR 515. As to the obligation to leave manslaughter, see Murder at [5-1140].

The duty to leave an alternative verdict for offences other than murder does not require that a lesser charge is left in every case; the test is “what justice to the accused requires” in the circumstances of the case: James v The Queen at [34]; The Queen v Keenan (2009) 236 CLR 397 at [138]. If neither party relies on an included offence then the judge may conclude that it is not a real issue in the trial: James v The Queen at [37]. The duty to leave an alternative verdict will depend on the real issues in the case and the forensic choices of counsel: James v The Queen at [38]. However, the forensic choices of counsel are not determinative and on occasion the judge’s duty to secure a fair trial will require that an alternative verdict be left despite defence counsel’s objection: James v The Queen at [34], [38]. The judge may refrain from leaving an alternative verdict if to do so would jeopardise the appellant’s chances of acquittal: James v The Queen at [48].

Where an alternative verdict is left, the jury must be specifically warned not to return an alternative verdict as a compromise: R v Heaton (unrep, 1/6/90, NSWCCA) at 8–9; R v Currie [2002] NSWCCA 126 at [11]–[13].

As to alternative verdicts generally see Criminal Practice and Procedure NSW at [2-s 153.1], [2-s 162.1], [8-s 61I.20]; Criminal Law (NSW) at [CPA.162.40]–[CPA.162.100].

After dealing with the ingredients of the alternative offence add