A majority of the High Court has dismissed an appeal against the decision of the Victorian Court of Appeal relating to alternative verdicts in criminal trials. The appellant was convicted of intentionally causing serious injury for hitting the victim with his car, and was sentenced to eight years and six months in prison. On appeal, the VCA rejected the appellant’s argument that the trial judge’s was required to leave the alternative verdict of intentionally causing injury open to the jury, and that her Honour’s failure to do so made the conviction unsound (even though defence counsel had not chosen to leave that verdict open for forensic reasons).

The majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) held that the trial judge was not required to instruct the jury that further alternative verdicts were available in the case. The trial judge’s duty to instruct on alternative verdicts stems from the broader duty of securing a fair trial, and whether the failure to do so occasioned a miscarriage of justice requires the court to consider what justice to the accused required in the circumstances of the case. Those considerations involve the real issues in the case and forensic choices of defence counsel during trial. Because the central issue at trial was whether the prosecution could exclude the reasonable possibility that the appellant struck the victim inadvertently with his car, instructing the jury on alternative verdicts may have blurred that issue and jeopardised the appellant’s chances of acquittal. Gageler J dissented.