R v Matthews - [2005] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MATTHEWS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
Appeal against conviction - whether trial judge erred in not leaving alternative verdict of common assault - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), s 270B, s 56, s 75, referred to.
Benbolt v The Queen (1993) 60 SASR 7; Gilbert v The Queen (2000) 201 CLR 414; R v Perdikoyiannis (2003) 86 SASR 262; R v Salmon [1969] SASR 76; W, JP v Police [2005] SASC 87, considered.

R v MATTHEWS
[2005] SASC 91
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Vanstone J. There is nothing that I wish to add.
DUGGAN J. In my view this appeal should be dismissed. I agree with the reasons given by Vanstone J.
VANSTONE J: Stephen Leslie Matthews was convicted of indecent assault in the District Court after a trial by jury. He appeals against that conviction on one ground only, being that a miscarriage of justice arose by reason of the failure of the learned trial judge to leave to the jury an alternative verdict of common assault.
The information upon which the appellant was tried contained two charges. The first count was assault with intent to rape, contrary to s 270B Criminal Law Consolidation Act 1935 (“the Act”) and the second count was indecent assault contrary to s 56 of the Act. It was made clear by the prosecutor when the case was opened to the jury that count 2 was an alternative to count 1. There was an acquittal on the first count and a unanimous verdict of guilty upon count 2.
The evidence led by the prosecution can be summarised briefly. As at the time of trial the complainant was 36 years of age. On the night of the incident she went alone to an hotel in the Taperoo area for the purpose of playing on poker machines. There she met the appellant, who was previously not known to her. They struck up an acquaintanceship and spoke to each other from time to time during the evening while they both used the machines. During the night the appellant bought at least one drink for the complainant and he also advanced her small sums of money when she had lost her own. Later on the complainant accepted the appellant’s offer to take her home in his motor car. However, during the journey the appellant veered away from the route to her home, saying he needed to go to his own residence because he had run out of cigarettes.
On arrival at his home he told her that she might as well come inside and she did so. Once inside he smoked a “cone” of cannabis. She did not join him. As he did so the telephone rang and he had a conversation with the caller. Shortly afterwards the complainant said that the appellant told her that he was going to do something to her before she went, and that he moved towards her and took her in a bear hug. She said that she resisted and tried to get to the front door. She said she was screaming, trying to prise his hands from her and that she bit him. She said that at the front door he took hold of her around the throat. He was grabbing at her dress and trying to remove her underclothing. She was pleading with him to release her and let her go. Then they fell backwards over a sofa and during the ensuing struggle she realised he had an erection. The complainant estimated that the struggle lasted about 10 minutes.
Eventually she was able to get to the front door and run into the street. She said that the appellant chased her down the road, jumped on her back and placed his hand on her mouth and nose, impeding her breathing. She bit his hand and pleaded with him to let her go. The incident seems to have come to an end on account of the appellant vomiting several times in the street, giving the complainant the opportunity to seek help in a nearby house.
During the trial prosecuting counsel made it clear that the major charge and the alternative charge related to the appellant’s conduct within the house. The case was left to the jury by the learned trial judge on that basis. His Honour directed the jury that for the purposes of count 1, the assault in issue was the grabbing of the complainant and holding her in a bear hug, the restraining of her from leaving, the grabbing of one of her wrists, the grabbing around her throat, the grabbing of her underwear and the pulling up of her dress. In directing the jury as to the alternative charge the Judge referred to the same alleged assault in terms of “conduct which included pulling up her dress and ripping at her knickers”.
Some little time after their retirement the jury sought further directions on what constituted indecent assault. In the course of further directions aimed at answering that enquiry the Judge reiterated that the alleged assault under consideration was the application of force or violence to the complainant “by conduct which included pulling up her dress and ripping at the knickers …”
After the evidence in the trial was concluded, Mr Ian White, counsel for the appellant both at trial and upon appeal, asked the Judge to leave common assault as a further alternative verdict to the major charge. That request arose out of evidence given by the appellant in which he acknowledged that whilst the complainant was in his living room and near to his front door he took hold of her around her waist. He told the jury that after the telephone call the complainant began acting strangely, screaming that she wanted to go home and becoming hysterical. He denied that anything he had done had led to that. Being concerned that his neighbours not be disturbed or concerned by her screaming, or by her bursting into the street, he said he took hold of her in an attempt to calm her. He further said that once she left his premises he followed her into the street and again tried to restrain her, unfortunately pulling at her dress and causing her to fall over on the ground. Again he denied any misconduct towards her. Counsel suggested to the Judge that the restraining of the complainant within the house could, on the appellant’s own version, amount to common assault. The learned trial judge declined to leave assault to the jury.
Until relatively recently the failure to direct a jury as to an alternative verdict for a lesser offence could not generally give rise to a successful appeal against conviction of the major charge: Benbolt v The Queen (1993) 60 SASR 7. However in Gilbert v The Queen (2000) 201 CLR 414 a majority of the High Court declined to apply the proviso where the jury had convicted of murder, but the trial judge had not left the alternative offence of manslaughter, in circumstances where it reasonably arose upon the evidence. Subsequently in R v Perdikoyiannis (2003) 86 SASR 262 Doyle CJ, with whom Besanko and Sulan JJ agreed, held, implicitly, that the principle in Gilbert had application beyond the charge of murder and that Benbolt was no longer good law in relation to this point.
Accordingly, the first question to be addressed is whether common assault was available as an alternative offence in this matter. It is clear from s 75 of the Act that, as a matter of law, it is available. Whether it “arose fairly on the evidence”, to use the words of Doyle CJ in Perdikoyiannis at 268, or whether there was a “viable case” of assault, borrowing that expression from the judgment of Gleeson CJ and Callinan J in Gillard v The Queen (2003) 202 ALR 202, 203, 209, is a different matter.
In my view the suggested alternative of common assault did not arise on the evidence. My reason for so finding is that the application of force described by the appellant in his evidence was, upon analysis, an entirely different transaction from the conduct described by the complainant giving rise to the charges. It was different in physical quality and in the motivation said to be its basis and, additionally, it was preceded and indeed followed by events which, upon the two versions, were of an entirely different nature. In order to convict on common assault on the suggested basis, the jury would have to reject almost the entirety of the complainant’s evidence. In all those circumstances the suggested verdict of assault could not answer the description of an alternative to the charges as framed on the information. Rather it would be a different transaction entirely. See R v Salmon [1969] SASR 76, 81; W, JD v Police [2005] SASC 87. That being my conclusion, there is no need to grapple with the issue of whether, on the appellant’s evidence, his restraining of the complainant in order to prevent a breach of the peace could ever amount to an assault.
For these reasons I consider that the learned trial judge was correct in declining to leave common assault to the jury. The appeal must fail.