R v Adam Thomas ORLOWSKY [2008] NSWDC 368

R v Adam Thomas ORLOWSKY [2008] NSWDC 368

Count 2 was not withdrawn because, although the New South Wales Bench Book appeared to reflect the English practice, the jury had already been sworn to try both counts and there was authority supporting both charges being at large before the jury. The alternative of attempt was not left because it had not been pleaded or opened and leaving it would create real potential prejudice to the accused, including prejudice to the conduct of cross-examination and the risk of a compromise verdict.

Jurisdiction
Australia
Judgment Date
13 August 2008
Procedural Posture
Criminal Trial on Indictment / Ruling During Trial at the Conclusion of the Crown Case
Outcome
The alternative of attempt will not be left to the jury; count 2 will not be withdrawn from the jury.
Legal Topics
['plea of Not Guilty to First Count and Guilty to Alternative Count' 'whether Alternative Count Remains Before Jury' 'whether to Leave Unpleaded Alternative Attempt to Jury' 'potential Prejudice to Accused']
['criminal Law' 'criminal Procedure'] ['plea of Not Guilty to First Count and Guilty to Alternative Count' 'whether Alternative Count Remains Before Jury' 'whether to Leave Unpleaded Alternative Attempt to Jury' 'potential Prejudice to Accused']

Case Brief

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Procedural Posture

Criminal Trial on Indictment / Ruling During Trial at the Conclusion of the Crown Case

Legal Issues

  1. 1 ['Whether count 2, assault occasioning actual bodily harm, should remain before the jury after the accused pleaded guilty to it as an alternative count while pleading not guilty to count 1 and the Crown did not accept the plea.' 'Whether the jury should be left with an alternative charge of attempting to commit aggravated sexual intercourse without consent where that alternative was not pleaded or opened by the Crown.']

Ratio Decidendi

Count 2 was not withdrawn because, although the New South Wales Bench Book appeared to reflect the English practice, the jury had already been sworn to try both counts and there was authority supporting both charges being at large before the jury. The alternative of attempt was not left because it had not been pleaded or opened and leaving it would create real potential prejudice to the accused, including prejudice to the conduct of cross-examination and the risk of a compromise verdict.

Court Disposition

The alternative of attempt will not be left to the jury; count 2 will not be withdrawn from the jury.

Orders

  • ['Count 2 in the indictment is not withdrawn from the jury.' 'The alternative charge of attempting to commit aggravated sexual intercourse without consent will not be left to the jury.']