R v Cattermole No. Sccrm-00-166

R v CATTERMOLE

[2000] SASC 378

Court of Criminal Appeal: Doyle CJ, Williams and Wicks JJ

1................ DOYLE CJ....... I would dismiss the appeal against conviction. I agree with the reasons given by Williams J.

2................ WILLIAMS J. This is an appeal against conviction for assault with intent to rape. The conviction was entered upon the unanimous verdict of a jury returned before a Judge of this Court on 29 June 2000. Leave to appeal was granted on 6 September 2000. The appellant complains that the jury verdict is unsafe and unsatisfactory. The appellant contends that the evidence of the victim and a bystander (which implicates the appellant as being the offender), is of such a quality and nature as to call in question whether the conviction should be allowed to stand.

This Court is now required to make an independent assessment of the evidence to determine for itself a question of fact as to the “qualitative worth” of the evidence. The appellant contends that the evidence of the two witnesses ought to be treated as unreliable to the point where it should have caused a jury to entertain a reasonable doubt as to the appellant’s guilt (see Morris v R (1987) 163 CLR 454). Counsel for the appellant acknowledges that there is in law, evidence which was sufficient to support a conviction, but contends that it would be none the less dangerous in all the circumstances to allow the verdict of guilty to stand.
The appellant was convicted with respect to an offence on Wednesday 25 August 1999 at Port Adelaide in that he assaulted Ms T with intent to commit an offence namely to rape her contrary to s 270B of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case was that the victim, Ms T, after closing time (5.00 pm or a little later) at the Central Hotel Commercial Road, Port Adelaide was walking with a companion Shane Power from that hotel to the nearby Golden Port Hotel in St Vincent Street when the appellant invited her to join him for an “acid trip”. As a preliminary to this, the appellant asked Ms T to come around the corner “for a cone” (ie a pipe of cannabis). [AB 117 & 59]. Ms T then left the company of her boyfriend Shane Power in the street, and went into the gloom of a nearby laneway where she was suddenly pushed to the ground by the appellant. She finished up on her back. The appellant pulled down the victim’s pants (but not her underclothing) to her knees and pulled down his own jeans. There was a struggle on the ground with the appellant on his knees on top of his victim pulling down her underpants. Ms T called out to Power who entered the laneway and pulled the appellant off Ms T who made her escape.
The Golden Port is situated on the south western corner of St Vincent Street (running east and west) and Robe Street (running north and south). The laneway was identified as a service lane running east from Robe Street in the vicinity of the Golden Port Hotel.
The appellant in his evidence sought to describe Robe Street as a “laneway”. It is therefore of some importance by reference to the aerial photograph (Exhibit P1) to confirm the long established layout of Port Adelaide. St Vincent Street is a wide major thoroughfare with multiple carriageways; Robe Street is a minor street but nearly half the width of St Vincent Street. I have difficulty in accepting that in normal parlance, Robe Street could fairly be described as a laneway or alley despite the appellant’s claimed belief as to how it is often known.
Ms T and Power spent some time at the Golden Port on the afternoon in question after an earlier visit that same day to the Central where they met the appellant playing pool. They also saw him at the Golden Port. They next saw him on their return to that hotel after a second visit to the Central (when they found it to be closed).
The appellant denies involvement in the assault upon Ms T. The issue is whether he was properly identified in the darkness of the small laneway bearing in mind the degree of intoxication of the victim and the possible effect of beer and cannabis upon the witness Shane Power, and having regard to the presence of others in the vicinity with whom the appellant may have been confused by Ms T or Power. Power had used cannabis during the afternoon. He had four beers at the Central and one beer at the Golden Port. No one gave evidence as to his observed condition before the assault. It is his subsequent conduct in the light of his earlier use of cannabis and consumption of alcohol that raises a question as to his true state. His behaviour after the assault upon his girlfriend (when he reacted by going on a rampage) is suggestive of a fragility in his ability on that occasion to make a proper assessment of events. It is a matter for concern upon this appeal whether his experience of a stressful event (in which he was punched), combined with the effects of cannabis and alcohol, may have clouded his perception.
The appellant was known by sight to Ms T and to Power. They knew him as “Tom”. They had previously played pool (or eight ball) with him at the Central Hotel and had met him there on a number of occasions. Ms T mentioned about eight occasions, Power suggested a few more. The appellant could therefore be described as a bar room acquaintance of Ms T and Power.
The trial judge directed the jury that the evidence of Ms T and Power was essential to the success of the prosecution.
The appellant was identified to police by both Ms T and Power by reference to photographs. Ms T was intoxicated at the time of the incident. She had been smoking cannabis as well as drinking beer.
Ms T gave various descriptions to the police of her assailant. She acknowledged having told the police that the offender was a half caste with reddish brown moustache and brown wavy hair and she described his build. Constable Holland (who found Ms T lying against the door of the Golden Port) took the first statement from her. Constable Holland recorded Ms T’s description of the assailant as a white male with a moustache but Ms T denied this. She did not tell police that day that she knew the offender as Tom. Ms T was taken from the hotel to the police station after the incident where Constable Corston observed Ms T to be extremely intoxicated; Ms T, however, denied being at the police station on the relevant occasion, but gave evidence that she went straight to hospital. According to Constable Corston, Ms T stated at the police station that she was too drunk to talk about the incident.
Ms T’s description of the incident and the position of the bodies of herself and her assailant as she lay on the ground was generally consistent with the observations of Power in terms of his evidence. Both Ms T and Power said that they could see the appellant.
There were inconsistencies between the evidence of Ms T and Power as to the number of people in the laneway and its vicinity, and as to their movements. However, it would be understandable that Ms T might not have noticed the movement of others if she were suddenly assaulted in the way in which she described.
Ms T claimed that she walked into the alley alone with the appellant, [AB90] whereas Power claimed to have seen four people (including the appellant and Ms T) go into the alley. The other two were described as a tall man, dark with long strangly hair and the other, as black, short in stature with no beard or moustache. [AB 121].
Power claimed that when he heard Ms T screaming to him, he pushed aside a man at the entrance of the lane and ran down the lane. He claimed to observe Tom over the top of Ms T with his pants down and Ms T’s pants down. Power said that it was dark in the lane but he claimed to be able to see the appellant clearly. He then punched the appellant who said, “Get him off me...” Power in turn was then punched in the back of the head by a tall aborigine. He was one of the group of four persons who (according to Power) [AB 125] went into the lane. According to Power, another unidentified man joined in the assault on Power who claims to have been struck three or four times before he withdrew. Power was in a state of agitation and ran into the street trying to get attention. [AB 136]. Ms T said that she ran out of the alley. She thought she saw someone else also running but it was too dark to say whether it was the appellant [AB 91]. Power appears to have lost control of himself. He was horrified by the assault upon his girlfriend. He started screaming, and hitting fences to attract attention. He also jumped on the bonnets of cars and smashed windows. He tried to flag down passing traffic.
This is not a case of identification of a stranger. However, the reliability of the observations of Ms T and Power was called in question at trial. The presence near Robe Street of a number of people added to possible confusion in terms of their proper identification. It is argued for the appellant that Ms T’s failure to identify the appellant by name is significant. I do not place much weight upon that fact. The appellant must have been in a state of shock when she made her complaint.
Ms Bryant, who was working in the bar of the Golden Port on the afternoon of 25 August 1999, identified the appellant as having been present at the Hotel (“most of the afternoon”). Ms Bryant finished work in the late afternoon and as she left her workplace observed the appellant in the street in the company of a tall Caucasian man (Brian) and two aboriginal men. She described the latter two; one had a full beard, longish hair and the other had short hair. She also identified another couple who were obviously Ms T and her boyfriend; Ms Bryant knew Ms T’s given name. Ms Bryant described the appellant to the police as Caucasian, slim with short brown hair and a moustache. She described him as a little bit intoxicated and slurring his words.
In this recitation of events, I have extracted from the various personal descriptions, only sufficient to point up the possibility that a description of the appellant might suggest a resemblance between the appellant and someone else who may have been mistaken for the appellant by Ms T or Power.
The appellant asserted in his evidence that he did not enter the laneway with Ms T but remained in Robe Street. However, according to Detective Senior Constable Farrington, the appellant, when interviewed before arrest on 30 August 1999, spoke of his recollection of:
“Being in the alleyway for a smoke and leaving when something was going on there, I left. I don’t know. There’s argument and screaming or whatever and I left.”
The appellant had previously also acknowledged to the Detective that he went down the laneway with a young female to whom he had offered a smoke [AB 193 and 158]. This is crucial evidence which is not sufficiently brought to account in the persuasive argument which was advanced on the appellant’s behalf on the hearing of this appeal. Indeed, this material was not mentioned upon the application for leave to appeal until brought to the Court’s attention by the prosecutor.
The appellant gave evidence in the trial and admitted making the statement abovementioned to the Detective. However, he sought to explain away his statement by suggesting that when he was referring to a “laneway”, he was referring to Robe Street. This explanation lacks credibility. As I have already observed, Robe Street could hardly be called a laneway.
The appellant also gave evidence in which he confirmed having smoked “standing in Robe Street more or less” with Ms T, but claimed that there were others in the group who generally fitted the descriptions provided by Ms Bryant [AB 194]. It is this fact which gives the appellant a foothold of argument for the purposes of the appeal. His version of events in terms of his evidence at trial is as follows:

at [AB 189]:

“Q.... So when you were standing on the street corner at the Golden Port Tavern waiting to be collected, was there amongst your group a tall man with a bit of a potbelly.
A.There was a very tall man of solid build. I couldn’t say if he had a potbelly. I don’t think so.
Q...... And that’s the man Brian, is it.
A.Yes.
Q...... How well did you know him.
A.I had only met him at different occasions in the hotel drinking.
Q...... What was he doing with you standing outside the Golden Court Tavern.
A.Peter [ie Mr Struhs] and I were on the corner and that fellow, the other fellow with the beard, the shorter fellow, and the two young couple went into Robe Street to the edge where I have marked that laneway, the start of that laneway. They went there, and me and Peter stayed on that corner there.
Q...... So it was just the two of you left there, but the rest of the group went into the laneway area, is that right.
A.I said into Robe Street, towards the laneway entrance, around there.”

and at [AB 191]

“Q. When they went down Robe Street, how long were they gone for.
A...... It was only a matter of a couple of minutes, and then Allan pulled up in the car and we got in the car and we left.
Q.So you never heard a scream, or anything like that.
A...... Just as he pulled up there was an argument starting, or going on. I don’t know what it was about. I heard the girl saying - I can’t be exact on words, but saying, like ‘Stop that’ - yelling out ‘Stop that. Cut it out’, or something to that effect, but we were there getting into the car at that time and that’s all I know about that.
Q.Was she saying that in a loud voice.
A...... Screaming it out, yes.”

As regards the invitation alleged by Ms T, the appellant’s evidence is as follows: [AB 190]
“Q.... So it’s not the position that you offered to Amanda some cannabis and you took her to the lane to smoke it with her.
A.No, I already said I offered Amanda no cannabis or beer at all.
Q...... And that includes while you were standing outside the Golden Court Tavern waiting to be picked up.
A.That’s correct.
Q...... So when she says that you offered her that, she’s wrong, is she.
A.I’ll call her a liar.”
The appellant’s case at trial was that although others went down Robe Street towards the laneway, he stayed at a nearby corner. Any suggestion that he was in the laneway when the assault occurred must have been due to a mistaken identification.
The jury had the advantage of having the assistance of a very comprehensive summing up which highlighted the issues and reviewed the evidence. The questions which have been urged on this appeal are matters which the jury was well equipped to resolve, and they were specifically brought to the attention of the jury in one form or another. This court must be careful not to usurp the function of the jury. However, the court does have a well recognised responsibility to make its own independent evaluation of the whole of the evidence in reviewing the jury’s verdict. Accordingly, for this purpose, I have made my own assessment of the evidence. I have called for and examined the exhibits which were not in the appeal book itself.
The task is not made easier by reason of the fact that the appellant’s version of events was not put to Ms T or to Power in cross-examination. As the Trial Judge pointed out in his summing up: [AB310]
“It wasn’t put to them that they were part of a group with the accused coming back from the Central to the Golden Port Tavern. It wasn’t put to them that the accused did not even go down Robe Street, but stayed by the corner, and it wasn’t put to them that the accused never offered [Ms T] a cone.”
My own view is that the appellant’s efforts to explain away his statement to Detective Farrington are implausible. If one proceeds upon the basis that he was present in the laneway for a smoke when trouble developed, there is some material against which the reliability of Power and Ms T can be tested. Upon my evaluation, it is not unsafe to leave the ultimate decision in the hands of the jury in light of what is evident in the appellant’s own statements. The information which the appellant gave to the Detective ties in so well with the evidence of the victim and Power, as to remove any lingering doubts (at least in my mind) as to whether the jury verdict can safely be allowed to stand. In giving evidence the appellant sought to distance himself (so far as he was able) from the crime scene. He was not obliged to give an account of events but chose to do so. He places himself in close proximity to the victim for the purposes of a smoke. Ms T’s injuries as described by Dr Semmler (and evident on the photographs of the victim) are testimony confirming what happened to Ms T. Mr Power’s spectacles were afterwards found in the laneway in the immediate vicinity of the struggle. The appellant claims to have been getting into a car when he heard Ms T’s cries. However, on his story to the Detective, he was in the alleyway and left when he heard argument and screaming. If this be the case, he appears to confirm up to a point the evidence of Ms T and Power, and to reduce considerably the scope for confabulation in their version of events.
I have studied the evidence of Mr Peter Struhs who was called as a witness by the defence. There are aspects of his evidence which are at odds with Ms T, Power, Bryant and the appellant as to Ms T’s presence at the Golden Port Hotel. The Trial Judge mentioned other significant differences between Struhs and other witnesses; the prosecutor spent some time in his final address in explaining to the jury that upon Struhs’ evidence, there could not have been any event in the laneway involving the appellant. The appellant’s statement to the police would have helped the jury (as it now assists me) to determine whether Struhs’ evidence was directed to the actual point in time when a serious assault undoubtedly occurred on Ms T. It may be, as the prosecutor put to the jury, [AB 246] that Struhs (if he was truthful) was describing events some time earlier that day. On this appeal, the prosecutor as respondent, submitted that the evidence of Struhs and the other defence witnesses was riddled with inconsistencies, and that these witnesses could not be regarded as impartial. I consider that there is force in that submission. The evidence of the other defence witnesses, Mr and Ms Sparrow describe events subsequent to the assault when they picked up the appellant in a van.
At the end of the day, I consider that the appellant’s own evidence provides support for the prosecution case to the extent of removing any anxiety which I may otherwise have felt with respect to the jury’s verdict.
I do not consider this to be a case where it could be concluded that a reasonable jury must have acquitted even although there was sufficient evidence in law to support the verdict.
In M v R (1994) 181 CLR 487 at 524-425 McHugh J said:
“The judges of this Court have used different terminology to describe the appropriate test for determining whether a conviction is unsafe or unsatisfactory. Some have said that the test is whether a reasonable jury would have, or should have or must have had a reasonable doubt about the accused’s guilt. Others have said that the test is whether, having regard to the probative value of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. Although some judges have seen the two formulations as interchangeable, I do not think that they necessarily mean the same thing. The second formulation of the test seems to me to be capable of being understood as giving the jury a wider discretion to evaluate the evidence. In Morris v. The Queen, for example, Dawson J. thought that once an admission was properly in evidence, it was for the jury to evaluate the medical evidence which placed doubt on the veracity of the admission.
In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused’s guilt. To ask whether it was open to the jury to be satisfied of the accused’s guilt beyond reasonable doubt is to come perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused. To go beyond asking whether a reasonable jury must have had a reasonable doubt about the accused’s guilt would be an unwarranted intrusion into the jury’s right to determine the facts in a criminal trial. The court must make an independent assessment of the evidence and consider the sufficiency, quality and nature of the evidence. However, before coming to the conclusion that a reasonable jury must have had a reasonable doubt about the accused’s guilt, the court must give due weight to the advantages that the jury had in regard to the evidence and the atmosphere of the trial. If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict.”

Applying this test and after considering the sufficiency, quality and nature of the evidence, I am of opinion, that this is not a case which requires this Court’s intervention. Whether the test be expressed as expounded by McHugh J, or, whether an alternative formula be adopted (see the authoritative guidance in M v The Queen at 494-495), the result in my assessment will be the same in this case. This is not a case in which there is a possibility that an innocent person has been convicted based upon evidence lacking in probative force.
I would dismiss the appeal.

36.............. WICKS J......................... I agree.

[2000] SASC 378

16 November 2000