Some assistance about available alternative verdicts may be obtained from I. Freckelton Indictable Offences in Victoria (4th Ed, 1999).
In addition, in a trial for any offence except treason or murder, the jury may return an alternative verdict for another offence, if the allegations in the indictment amount to or include (expressly or by necessary implication) an allegation of that other offence (Criminal Procedure Act 2009 s239(1)).
This involves the application of the common law ‘red pencil’ test. An offence will amount to or include another offence if words could be deleted from the particulars of an offence in the indictment in a way that leaves the particulars of the alternative offence (Mareangareu v The Queen  VSCA 101, ; Chaarani & Ors v The Queen (2020) 61 VR 353, ).
The availability of an alternative verdict depends on the terms in which the charged offence is laid, and not upon the evidence adduced. The evidence led at the trial is only relevant to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge (R v Salisbury  VR 452; Reid v R (2010) 29 VR 446; Pollard v R (2011) 31 VR 416; R v Perdikoyiannis (2003) 86 SASR 262; Chaarani & Ors v The Queen (2020) 61 VR 353).
Section 239 does not allow a court to leave a State offence as a necessarily included alternative to a Commonwealth offence. This is because while s 239 may be ‘picked up’ by Judiciary Act 1903 s 79(1) to permit an alternative verdict of one Commonwealth offence for another, a substantive offence cannot be picked up by s 79 to become ‘another offence within the jurisdiction of the court’ (Chaarani & Ors v The Queen (2020) 61 VR 353, ; Fattal & Ors v The Queen  VSCA 276, ).
Any allegation of an offence (other than treason) includes an attempt to commit that offence (Criminal Procedure Act 2009 s239(2)).
A judge may not leave a driving offence, such as dangerous driving causing death, as an alternative to a charge of murder under Crimes Act 1958 s421(1) (R v Borthwick  VSC 306).
The offence of sexual penetration of a child under 16 is not an alternative to a charge of rape (Pollard v R (2011) 31 VR 416).
Duty to leave alternative verdicts
Although an alternative verdict may be available at law, a judge is not always obliged to leave such a verdict to the jury. A judge may order that the guilt of a person in respect of such alternatives shall not be determined at the trial if he or she considers that it is expedient to do so in the interests of justice (Criminal Procedure Act 2009 s240).
The judge’s duty to leave an available alternative verdict to the jury will depend on the course of the trial and the evidence in the case.
Under the Jury Directions Act 2015, after the close of all the evidence, the prosecution must indicate whether any alternative offences are open on the evidence and, if so, whether it relies on them. Defence counsel must then indicate whether they consider any alternative offences are in issue and must request directions on the matters in issue (Jury Directions Act 2015 ss11, 12).
Three situations may therefore arise
If the possibility of an alternative verdict forms part of either party’s case, appropriate directions about that verdict must be given to the jury (Jury Directions Act 2015 s14; R v Kane (2001) 3 VR 542 per Ormiston JA);
If the possibility of an alternative verdict has not formed part of either party’s case, but one of the parties has requested such a verdict be left to the jury, the judge must consider whether there are good reasons for not giving the requested direction (see “Good Reasons for Not Giving Requested Direction” below);
If the possibility of an alternative verdict has not formed part of either party’s case, and the parties have not requested such a verdict be left to the jury (or have objected to such a verdict being left), the judge must decide whether fairness to the accused requires that the jury consider the alternative charge (see “Leaving Alternative Verdicts Even if Not Sought by Counsel”) below.
Good Reasons for Not Giving Requested Direction
Jury Directions Act 2015 s14(1) states:
The trial judge must give the jury a requested direction unless there are good reasons for not doing so.
In deciding whether there are good reasons for not giving a requested direction, the judge must consider the manner in which the parties have conducted their cases and whether the direction would involve the jury considering the issues in a manner different from the way in which the accused presented his or her case (Jury Directions Act 2015 s14(2)(b)(ii)).
This provision appears designed to limit the ability of counsel to seek directions which require the jury to assess alternative theories of the case which are not raised with the jury by defence counsel. Until the provision is interpreted, it is not known when a judge should refuse to give a direction sought on the basis that it is not raised or relied on by the accused.
Leaving Alternative Verdicts Even if Not Sought by Counsel
Jury Directions Act 2013 s16 abolished the common law rule which required a trial judge to direct the jury about offences open on the evidence which had not been identified during the trial and alternative bases of complicity. This abolition has continued despite the repeal of the Jury Directions Act 2013, but does not limit the residual obligation under Jury Directions Act 2015 s16 (Interpretation of Legislation Act 1984 s14(2)(c); Jury Directions Act 2015 s17 Note).
Under the Jury Directions Act 2015, a judge has a residual obligation to give the jury a direction if there are substantial and compelling reasons for doing so even though the direction has not been requested (Jury Directions Act 2015 s16).
This residual obligation presupposes that the parties have complied with their obligations under Jury Directions Act 2015 s11 to identify alternative offences that are open on the evidence and whether those alternatives are relied upon or in issue (Aston v The Queen  VSCA 225, , ).
While a judge is not required to leave an alternative charge that is not a realistic alternative, fairness to the accused may require that the judge leave an alternative charge where the jury might reasonably return a verdict on that alternative, even if the alternative charge was not sought by any party (Aston v The Queen  VSCA 225, , ).
Before giving a direction that was not sought, the judge must inform the parties of his or her intention to give the direction and invite submissions on the direction and whether there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 s16).
At common law, there was a greater obligation on judges to leave alternative verdicts in homicide cases compared to non-homicide cases. It is unclear whether different principles continue to apply when determining whether a judge must give a direction regarding alternative offences under the residual obligation. These common law authorities are addressed below.
Judge Must Direct Jury About Manslaughter if “Viable”
At common law, the judge in a murder trial was required to direct the jury to consider the alternative verdict of manslaughter if a “viable” case is available on the evidence. This was necessary even if the possibility of a manslaughter verdict has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury (R v Kanaan (2005) 64 NSWLR 527; DPP v Tabbit  VSC 137; R v Parsons (2004) 145 A Crim R 519; R v Makin (2004) 8 VR 262; Gillard v R (2003) 219 CLR 1; R v Kane (2001) 3 VR 542; Gilbert v R (2000) 201 CLR 414; R v Doan (2001) 3 VR 349; Pemble v R (1971) 124 CLR 107; Gammage v R (1969) 122 CLR 444).
This duty also extended to cases of accessorial liability. Where the principal offender could be found guilty of either murder or manslaughter, the jury was directed about any “viable” bases of accessorial liability for both possible verdicts (R v Nguyen (2010) 242 CLR 491; R v Nguyen  VSCA 23). However, Jury Directions Act 2013 s16 expressly removed the obligation to direct on alternative bases of complicity and the note to that section expressly referred to R v Nguyen (2010) 242 CLR 491 (see also Jury Directions Act 2015 s17).
There was be a “viable” case of manslaughter if there was a basis for a manslaughter verdict on a reasonable view of the facts. The evidence must have disclosed a reasonable basis upon which such a verdict could be found (R v Williamson (2000) 1 VR 58. See also R v Kane (2001) 3 VR 542; R v Doan (2001) 3 VR 349; R v Thorpe  1 VR 326; Van den Hoek v R (1986) 161 CLR 158; Varley v R (1976) ALJR 245; Pemble v R (1971) 124 CLR 107).
A retrial was generally required if a judge failed to direct the jury about manslaughter when it was available on the evidence, as this deprived the accused of a chance of being acquitted of murder (and convicted of manslaughter instead), causing a miscarriage of justice (Gillard v R (2003) 219 CLR 1; Gilbert v R (2000) 201 CLR 414; R v Kanaan (2005) 64 NSWLR 527; R v King (2004) 59 NSWLR 515; R v Kane (2001) 3 VR 542; R v Nguyen (2010) 242 CLR 491).
If there was no viable manslaughter case, and counsel has not raised the issue, the jury was not be directed about it (unless questioned about it by the jury: see below) and it may have been a misdirection to do so  (R v Williamson (2000) 1 VR 58; R v Kanaan (2005) 64 NSWLR 527; R v Iannazzone  1 VR 649; Markby v R (1978) 140 CLR 108; Gammage v R (1969) 122 CLR 444; Mraz v R (1955) 93 CLR 493).
Do Not Mislead Jury About their Ability to Return a Manslaughter Verdict
This section discusses the obligation on a trial judge not to mislead a jury about their ability to return a verdict of manslaughter. These principles remain relevant under the Jury Directions Act 2015.
While the judge should not direct the jury about manslaughter if there is no viable case, he or she must not lead the jury to understand that a manslaughter verdict is beyond their power. The jury has the right under Crimes Act 1958 s421(1) to return such a verdict, even if it is not open on the evidence (a “merciful verdict”) (Gammage v R (1969) 122 CLR 444; Packett v R (1937) 58 CLR 190).
It will therefore be a misdirection to tell the jury that they are not at liberty to find a verdict other than guilty or not guilty in relation to murder, even if on the evidence it is a case of murder or nothing (Brown v R (1913) 17 CLR 570).
Because of the possibility of merciful verdicts, the judge is bound to inform the jury of their capacity to return a manslaughter verdict if they ask about that possibility, even if such a verdict is not open on the evidence. To do otherwise would be to misstate the law, and would deny the jury a power they possess by statute (R v Williamson (2000) 1 VR 58; Gammage v R (1969) 122 CLR 444; R v Stone (1965) 84 WN (Pt 1) (NSW) 361; Brown v R (1913) 17 CLR 570).
The fact that the jury asks a question about the mental element of murder does not oblige the judge to leave manslaughter as an alternative verdict. In the absence of a viable case, a judge only needs to direct the jury about manslaughter if they specifically ask about its availability, or if they ask about the power to return a verdict other than murder (R v Williamson (2000) 1 VR 58).
While the judge must not tell the jury that they cannot return a manslaughter verdict, he or she may tell them that they should not return a manslaughter verdict if there is no evidence to support such a verdict (Gammage v R (1969) 122 CLR 444; R v Stone (1965) 84 WN (Pt 1) (NSW) 361).
If there is no viable manslaughter case, and the judge is asked by the jury whether they can return a manslaughter verdict, the judge should therefore:
Tell the jury that they may return a manslaughter verdict;
Inform the jury of the basis on which they may properly return a manslaughter verdict (e.g. if they are not satisfied that the accused committed murder, but are satisfied that the accused killed the deceased by an unlawful and dangerous act: see Manslaughter by Unlawful and Dangerous Act); and
Tell the jury that if they are satisfied beyond reasonable doubt of all the elements of the crime of murder, their duty is to convict of murder (Gammage v R (1969) 122 CLR 444).
A judge is not obliged to direct the jury about manslaughter simply because defence counsel asks them to do so in the absence of the jury. At common law, a judge only needed to direct the jury on manslaughter if it arose on the evidence, or if he or she was questioned about it by the jury (R v Williamson (2000) 1 VR 58). Under the Jury Directions Act 2015, the judge should consider whether there are good reasons for not giving the direction sought, as it was not a matter raised or relied on by the accused and would involve the jury considering the issues in the trial in a manner different from the way in which the accused presented his or her case (Jury Directions Act 2015 s14).
Other Alternative Verdicts to Murder
The principles discussed above were limited to the alternative offence of manslaughter, and did not to apply to the other alternative offences to murder available under Crimes Act ss421(1), 6(2) or 10(3).
This was clearly the case in relation to the alternative offence of “assist offender” (Crimes Act 1958 s325). It was not always necessary to leave this offence as an alternative verdict in a murder case, even if it was open on the evidence. The question of whether to leave the alternative verdict of assist offender to the jury was decided according to the same principles that operated in relation to non-homicide offences (see below) (R v Saad  VSCA 249).
At common law, a judge was not required to direct the jury on alternative charges to offences other than murder (James v R (2013) 39 VR 149; R v Nous (2010) 26 VR 96; R v DD (2007) 19 VR 143; R v Saad  VSCA 249; R v Doan (2001) 3 VR 349. However, see R v Kane (2001) 3 VR 542; R v Rehavi  2 Qd R 640; R v Elfar (2000) 115 A Crim R 64).
However, the common law recognised that there were cases where the circumstances required a direction on an alternative offence, even if the possibility of that offence has not been raised by any party (James v The Queen (2014) 253 CLR 475, ; R v Nous (2010) 26 VR 96; R v DD (2007) 19 VR 143; R v Christy (2007) 16 VR 647; R v Saad  VSCA 249).
Whether an alternative offence should be left depended on all the circumstances of the case, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel. The ultimate test was what justice required in the particular case (R v Nous (2010) 26 VR 96; R v DD (2007) 19 VR 143; R v Bui  VSCA 300; R v Saad  VSCA 249; R v Kane (2001) 3 VR 542).
The judge’s obligation is to direct the jury only on the real issues in the case. Directions on alternative offences which have not been addressed by the parties may be inconsistent with this obligation and may cause unfairness to the parties by expanding the case beyond the issues the parties addressed. Such directions may also breach the separation of prosecutorial and judicial functions (James v R (2013) 39 VR 149; James v The Queen (2014) 253 CLR 475, ).
The interests of justice could demand that lesser alternatives be left to the jury, even if not raised by counsel, to guard against the following two dangers:
Faced with a false choice between conviction or acquittal of the main offence and nothing else, the jury would acquit the accused altogether when he or she should be convicted of the alternative offence; or
Faced with the same false choice, the jury would convict the accused of the more serious offence rather than let him or her get off scot-free for what is, on any view, serious misconduct (Aston v The Queen  VSCA 225, -; R v Saad  VSCA 249; R v Kane (2001) 3 VR 542; R v Maxwell  1 WLR 401; R v Fairbanks  1 WLR 1202).
The following factors bear upon whether, in the interests of justice, a lesser alternative offence should be left to the jury:
The presence of evidence which raises the alternative offence as a real and not remote or artificial possibility;
A party’s reliance upon that evidence as being inconsistent with the proof of one or more of the elements of the more serious offence;
A real chance that the jury may convict the accused of the lesser offence; and
A request by a party that the lesser alternative offence be left to the jury (R v Nous (2010) 26 VR 96).
Thus, there may be no need to leave an alternative verdict to the jury where:
There is no reasonable basis on the evidence for that verdict (e.g. where there is no dispute that the principal offence was committed, and the only issue is whether the accused committed it) (R v DD (2007) 19 VR 143; R v Bui  VSCA 300; R v Benbolt (1993) 60 SASR 7; R v Perdikoyiannis (2003) 86 SASR 262; R v Willersdorf  QCA 183; R v King (2004) 59 NSWLR 515; Jensen v R (1991) 52 A Crim R 279);
The evidence in support of the alternative verdict is flimsy, or the prospect of a conviction on the lesser offence rather than the major offence is fanciful (R v King (2004) 59 NSWLR 515); or
The principal offence is grave and the alternative is comparatively trifling and remote from the real point of the case (R v Saad  VSCA 249; R v Kane (2001) 3 VR 542; R v King (2004) 59 NSWLR 515; R v Maxwell  1 WLR 401; R v Fairbanks  1 WLR 1202).
Above all, the common law required judges to keep in mind the course of the trial. Other things being equal, the effect of forensic judgment on the part of counsel was likely to be one of the most important considerations. In non-homicide cases, calculated abstention from raising an alternative verdict was a relevant consideration (R v Saad  VSCA 249; R v Nous (2010) 26 VR 96; James v R (2013) 39 VR 149). These principles are likely to remain relevant under the Jury Directions Act 2015.
Under the Jury Directions Act 2015, counsel have a positive duty to identify to the judge alternative offences that are open on the evidence and must indicate whether those offences are relied upon or in issue. Under this scheme, there appears to be less scope for ‘calculated abstention’ from raising an alternative. Such abstention is likely to involve a failure to fulfil counsel’s obligations under the Act. Where that occurs, the focus on appeal will be on what fairness to the accused required, rather than whether there were substantial and compelling reasons for leaving the alternative charge (see Aston v The Queen  VSCA 225, -).
While the judge and not counsel is responsible for deciding what are the real issues to be left to the jury, the forensic decisions of counsel affect the scope of issues in dispute. Where the judge was of the opinion that there was a real issue as to whether the prosecution had established an element of the more serious offence and, after discussion with counsel (see below), considered that there was a real possibility that the jury could find the accused guilty of the lesser alternative offence, the common law stated that the offence should be left to the jury (R v Nous (2010) 26 VR 96; James v R (2013) 39 VR 149 per Maxwell P).
Discuss Alternative Verdicts with Counsel
At common law, judges needed to ensure that leaving to the jury the possibility of convicting the accused of an alternative offence did not involve a risk of injustice to the accused, and that the accused had the opportunity of fully meeting that alternative in the course of his or her defence (Commissioner of Police v Wilson  AC 242).
It was therefore prudent for the judge to ask counsel before empanelment, or at least no later than at the close of the defence case, whether consideration had been given to alternative verdicts (Ross v R (1922) 30 CLR 246; R v Evans  VR 858; R v Pureau (1990) 19 NSWLR 372; R v Perdikoyiannis (2003) 86 SASR 262).
These considerations will remain relevant when a judge is deciding whether to exercise the residual power to give a direction not sought by the parties (see Jury Directions Act 2015 s16).
If it seems clear that an alternative charge arises on the prosecution case, but the prosecution does not open on that alternative, the judge should raise the issue with the prosecution. The judge may also wish to draw the alternative verdict to the jury’s attention before the evidence is called, so that they have it in mind when they hear the evidence (R v Benbolt (1993) 60 SASR 7 per Perry J).
If the judge proposes to leave an alternative verdict which has not been raised by counsel, he or she should inform counsel of this fact before their final addresses. This will allow submissions to be made about whether raising such an alternative so late would be likely to cause injustice to the accused, and will also allow counsel to address it in their closing arguments (R v Benbolt (1993) 60 SASR 7; R v Pureau (1990) 19 NSWLR 372).
In determining whether to leave an alternative verdict which has not been sought by the prosecution, the judge should consider the fact that objections to the evidence, lines of cross-examination and decisions upon the material to be presented on behalf of the accused will have been governed by the nature of the prosecution case. It is therefore possible that real prejudice could arise if he or she raises new approaches available to, but not expressly relied upon by, the prosecution (R v Solomon  1 NSWLR 321; R v Cameron  2 NSWLR 66; R v Pureau (1990) 19 NSWLR 372).
Raising an alternative verdict for the first time during the summing-up is likely to prejudice the accused, because defence counsel will not have had an opportunity to address the issue in their closing address. This prejudice cannot be remedied by allowing counsel to make supplementary submissions after the judge’s summing-up, as that would give undue emphasis to the alternative charge, and tend to make it more likely that the jury would find the accused guilty at least on that alternative charge (R v Kane (2001) 3 VR 542 per Ormiston JA ; R v Benbolt (1993) 60 SASR 7; Quinn v R (1991) 55 A Crim R 435; R v Heaton 1/6/90 NSW CCA; R v Pureau (1990) 19 NSWLR 372).
As the factual situation which gives rise to the prospect of an alternative verdict of attempt is often not apparent until the trial is under way, this offence may differ from other alternative offences. A judge may be more likely to conclude that the late raising of attempt will not prejudice the accused. However, the alternative of attempt should not be raised for the first time during summing-up, when neither counsel will have had the opportunity of addressing it (R v Pureau (1990) 19 NSWLR 372; Quinn v R (1991) 55 A Crim R 435).
Directions About Alternative Verdicts
If an alternative offence is to be left to the jury, the judge must explain to the jury to issues of law and fact involved determining whether the alternative offence is proved, including how the prosecution puts its case in relation to the alternative (R v Pureau (1990) 19 NSWLR 372; R v Crisologo (1997) 99 A Crim R 178; Pemble v R (1971) 124 CLR 107).
Where the evidence is unclear about the date of the offence, and the judge needs to direct the jury about an alternative offence which pre-dates the charged offence, the judge will need to explain how a doubt about the date of the offence affects the jury’s verdict. In some cases, the date may only be an essential particular in relation to the more recent offence. The jury may then be able to return a verdict of guilty in relation to the alternative offence if satisfied that the conduct occurred, even if it cannot be satisfied beyond reasonable doubt that it occurred either before or after the relevant date. Whether this is permissible will depend on the nature of the offences and the operation of any relevant transitional provisions (see Dibbs v R  VSCA 224).
The jury cannot return a verdict on an alternative charge until it returns a verdict on the principal charge. The judge must ensure that the jury understands this rule. If the jury cannot agree on the principal charge, any agreement on an alternative charge would involve impermissible compromise (LLW v R (2012) 35 VR 372; Medici v R (2013) 39 VR 350).
At common law, jurors were free to organise their processes of reasoning and their discussions in any way they see fit. As a result, a judge was prohibited from giving any direction which interfered with this freedom. This included a direction on the order in which the jury must consider various offences. This was distinguished from a direction about the order in which the jury must return its verdicts, which was permissible (Stanton v R (2003) 198 ALR 41; LLW v R (2012) 35 VR 372; Medici v R (2013) 39 VR 350; Smith v R (2013) 39 VR 336; Vo v R (2013) 39 VR 543).
Jury Directions Act 2015 s64E, as amended in 2017, abolishes that common law rule. Judges may direct the jury on the order in which they must consider the offences. Section 64E also preserves judges’ common law ability to suggest an order in which they may consider the offences (see also Smith v R (2013) 39 VR 336).
Judges may also direct the jury on the order in which it must consider the following matters:
some or all of the elements of an offence charged or an alternative offence;
defences to an offence charged or an alternative offence;
the matters in issue;
an alternative basis of complicity in the commission of an offence charged or an alternative offence (Jury Directions Act 2015 s64F).
The judge needs to be careful not to leave alternatives to the jury in a way that suggests that the only question is of which alternative the accused is guilty (e.g. murder or manslaughter). The jury must be told of its entitlement to acquit, and of its obligation to acquit if it is not satisfied beyond reasonable doubt of the accused’s guilt (R v Williamson (1996) 67 SASR 428; Pemble v R (1971) 124 CLR 107).
Written directions are of particular assistance to the jury where alternative verdicts are available (R v Youssef (1990) 59 A Crim R 1. See Providing Documents to the Jury for further information).
 An alternative verdict is a verdict in relation to an offence which has not been specifically charged (R v Salisbury  VR 452).
 On 28 February 2018, Justice Legislation Amendment (Victims) Act 2018 s 7 commenced operation. This repealed Crimes Act 1958 s 425, which previously specified alternative verdicts for certain sexual offences. According to the Explanatory Memorandum, s 425 had become obsolete due to Criminal Procedure Act 2009 s 239, which provides general rules on when an alternative verdict is available.
While Criminal Procedure Act 2009 s239 does not apply to a charge of murder, s421(1) states that attempted murder is an alternative verdict to murder.
 The distinction is actually between murder/manslaughter cases and other cases (see “Other Alternative Verdicts to Murder” below). For the sake of simplicity, however, this topic refers to this distinction as the distinction between homicide and non-homicide cases.
 The “viable” bases of accessorial liability may vary for each verdict. For example, while complicity on the bases of acting in concert or extended common purpose may be viable in relation to a verdict of murder, in some cases these forms of complicity may not be viable in relation to a verdict of manslaughter (see, e.g., R v Nguyen  VSCA 23).
 The requirement that there must have been a “viable” case of manslaughter did not differ in substance from the test in Pemble v R (1971) 124 CLR 107 that manslaughter should be left to the jury if such a verdict was “open on the evidence” (R v Kanaan (2005) 64 NSWLR 527).
 See, e.g., Mraz v R (1955) 93 CLR 493, in which it was held to be a misdirection to direct the jury about manslaughter where it was a case of murder or nothing (i.e. there was no doubt that a murder was committed, but the accused denied any involvement in it).
 If the jury returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter. However, if they persist in that verdict, the judge must accept it (R v Kanaan (2005) 64 NSWLR 527).