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3.12 - Taking Verdicts

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Alternative Charges

  1. Unless expressly provided for by law, an accused must not be punished more than once for the same act or omission (Interpretation of Legislation Act 1984 (Vic) s51; R v Sessions [1998] 2 VR 304).
  2. This means that when alternative charges are left to the jury, the accused must not be convicted of the lesser offence if found guilty of the major offence (R v Sessions [1998] 2 VR 304; R v Weeding [1959] VR 298. See also Crimes Act 1958 s421(2)).
  3. When alternative charges of differing gravity are left to the jury, the verdicts should be taken in descending order of gravity. The judge should discharge the jury from returning a verdict on the lesser offence once the jury has returned a verdict of guilty of the major offence (R v Sessions [1998] 2 VR 304; R v Weeding [1959] VR 298).
  4. Where the alternative charges are of equal gravity or are inconsistent (e.g. theft or receiving stolen goods), the jury should be asked whether they have found the accused guilty on any charge. If they have, the charge should be identified, the verdict taken, and the jury discharged without verdict on the other charge (R v Seymour (1954) 38 Cr App R 68).

    Multiple Accused

  5. If multiple accused are tried jointly, it is usual for the judge to charge the jury in respect of all of the accused and all of the charges at the one time, before allowing the jury to deliberate about all of the matters together (R v Houssein (1980) 70 Cr App R 267; R v Wooding (1980) 70 Cr App R 256).
  6. However, in a trial of unusual complexity it is open to the trial judge to vary the procedure. For example, a judge may:
  7. Although the trial judge has a discretion to adopt such alternative procedures, the risk to a fair trial is such that this course should not be adopted unless the case really demands it (R v Houssein (1980) 70 Cr App R 267; R v Wooding (1980) 70 Cr App R 256).
  8. If the trial judge is contemplating adopting an alternative procedure, it would be desirable to discuss the matter with counsel as soon as possible. The discussions should include submissions about whether the jury is to be kept together throughout their deliberations or permitted to separate under s50 of the Juries Act 2000 (Vic).

    Persistent sexual abuse of a child under 16

  9. In Chiro v R [2017] HCA 37, the High Court held that for offences such as persistent sexual abuse of a child (see Crimes Act 1958 s49J) where there is an extended unanimity requirement concerning proof of constituent acts, the judge should ask the jury to specify the acts proved.
  10. When sentencing, a judge must sentence consistently with the jury’s verdict. For this kind of offence, that requires information from the jury on the basis for its verdict. Without that information, the judge must sentence on the assumption that the jury were satisfied of the minimum number and the least serious offences that were available to prove the offence charged.

For information on asking the jury to identify the basis for its verdict, see Persistent sexual abuse of a child (From 1/7/17).

Last updated: 23 October 2019

In This Section

3.12.1 - Charge: Taking a Unanimous Verdict

3.12.2 - Charge: Taking a Majority Verdict

3.12.3 - Charge: Alternative Charges on the Indictment

3.12.4 - Charge: Alternative Charges Not on the Indictment

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings