R v Trickey - [2007] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRICKEY
[2007] SASC 160
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)
11 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appeal against conviction – appellant acquitted of causing grievous bodily harm with intent to do grievous bodily harm (count 1) and convicted of assault occasioning actual bodily harm (count 2) – whether verdict of jury to acquit on count 1 was consistent with conviction on count 2 – whether verdict of jury was unsafe or unsatisfactory – appeal dismissed.
M v The Queen (1994) 181 CLR 487; R v Shueard (1972) 4 SASR 36, applied.

R v TRICKEY
[2007] SASC 160
Court of Criminal Appeal: Doyle CJ, Debelle and Layton JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Debelle J.
DEBELLE J. This is an appeal against conviction.
The appellant was charged with two offences arising out of a fight between him and a man named Mattschoss at Wallaroo on 1 December 2004. The appellant was charged with one count of causing grievous bodily harm with intent to do grievous bodily harm. He was charged on a second count with assault occasioning actual bodily harm. The appellant pleaded not guilty. After a trial by jury, he was acquitted of count one but convicted on count two. He was fined $350. The appellant appeals against the conviction.
An Alleged Assault
Mr Mattschoss owns a commercial fishing boat. It is moored at a marina at Wallaroo. On Wednesday 1 December 2004 he had unloaded his catch and returned to the boat which was berthed alongside the marina.
The prosecution case was that at about 1pm on 1 December 2004 the appellant Trickey had boarded the fishing boat and had assaulted Mattschoss by punching him and then hitting him first with a piece of timber and then with a steel pole located on the boat. The prosecution alleged that, after the assault, Trickey left the boat. Mattschoss was later taken to the Wallaroo Hospital and then to the Royal Adelaide Hospital. He was treated for a hairline fracture of the skull, lacerations to the head and ear, bruising and swelling behind the left knee, and a ruptured spleen.
Two Differing Accounts
Mattschoss and Trickey each gave two substantially different accounts of the incident. I note each in turn.
Mattschoss gave evidence to the following effect. He said that, while working on his boat, he turned around to see Trickey attempting to board his boat at the stern. It was common ground that the deck of the boat was about eight to nine feet below the level of the wharf. Mattschoss and Trickey knew each other. According to Mattschoss, Trickey had his hand on a bollard with one foot on the wharf and was trying to get a foothold on the boat. Mattschoss gave evidence that Trickey asked how to board the boat and Mattschoss told him to come nearer the cabin. After Trickey had moved closer to the cabin, Mattschoss said that he reached out to shake Trickey’s hand. According to Mattschoss, Trickey put his hand out and then suddenly jumped into the boat kicking Mattschoss as he did so. Mattschoss was knocked on to his back towards the stern of the boat. He said that, when he got up, Trickey was attempting to punch him. A few punches landed. Trickey then picked up a bait board which was on the deck and swung it from left to right hitting Mattschoss in the area of the stomach. He said that Trickey raised the bait board above his head hitting him twice on the arms and legs. He said that Trickey then took a piece of hollow pipe from inside the cabin door. It was about 20 inches long. They struggled. Trickey hit him twice behind his left knee and once across the right side of his head with the pipe. Mattschoss said that he slumped to his knees Trickey then left the boat.
The appellant gave evidence which, he said, explained why he had gone to see Mattschoss and established why the fight had not occurred in the way recounted by Mattschoss. The effect of his evidence was that the appellant’s wife had had an affair with Mattschoss in 2000. The affair had ended. Although Mrs Trickey had informed Mattschoss that the affair was over, Mattschoss found it difficult to accept that fact. In October 2000 the appellant and his wife had sold their house at Wallaroo and had moved to Bute. In the years 2001, 2002 and 2003 Mattschoss continued to telephone Mrs Trickey despite requests not to do so. On 8 September 2004 Mattschoss had arrived unannounced with two deckhands at the Trickey’s property at Bute. Mrs Trickey told him to leave. The incident distressed her.
On 1 December 2004, the day of the offence, the appellant had gone to Wallaroo to assist a friend. He decided to take the opportunity to speak to Mattschoss and tell him to stay away from his family. As he approached the boat Mattschoss greeted him. Because of the difference between the level of the wharf and the boat deck, the appellant decided to squat down but, because he suffered from arthritis he could not do so. With some difficulty he sat on a sleeper on the edge of the wharf with his legs over the edge. The appellant asked Mattschoss to stay away from his family. According to the appellant, Mattschoss then reached up with his left hand and grabbed the appellant’s right trouser leg. With his right hand he grabbed the appellant’s right wrist and pulled the appellant off the wharf. As the appellant fell, he kicked out making very solid contact with Mattschoss in his abdomen. The appellant said that he thought he was in great danger. The appellant fell on his back on the deck of the boat near the cabin door. The kick had caused Mattschoss to fall backwards towards the stern of the boat. The appellant’s case was that Mattschoss had suffered the hairline fracture when his head struck equipment at the stern of the boat. The medical evidence was that that was consistent with the injury.
The appellant said that he lay on the deck dazed for about 10 seconds. He was winded. He then got up and decided to get off the boat because he believed he was in great danger. He tried to get off the boat but failed because he could not reach the edge of the wharf and pull himself up. The appellant said that Mattschoss then struck him twice across the lower back with a bait board about two feet long, ten inches wide and two inches thick. The blows knocked him to the ground. He stood and Mattschoss again tried to hit him with the bait board but missed. He moved forward towards the bow attempting to leave the boat. Mattschoss was still trying to strike him. He turned to face Mattschoss. They grappled with the bait board. The appellant was able to wrestle it from Mattschoss. He raised it over his shoulders and threw it at Mattschoss striking his left leg. The appellant managed to clamber on to the top of the cabin on the boat and then get to the wharf. When on the wharf he said to Mattschoss, “Jesus, James, I only wanted to talk to you.” The appellant said that Mattschoss responded, “I don’t know what the hell you are talking about.” The appellant also said that one of his boots had come off in the struggle. He had picked it up and taken it from the boat.
The appellant then went home. He showed his wife the welts on his back from the bait board. Later that day he showed them to a friend, Mr Stokes. Both the appellant’s wife and Stokes gave evidence on what they had seen. Neither were cross-examined on that aspect of their evidence. Mrs Trickey also gave evidence about her affair with Mattschoss and its aftermath. Mattschoss had in cross-examination denied the affair and that he had been stalking Mrs Trickey.
A Witness
A Ms Mildren had seen activity on the boat but did not know there had been a fight. She was some 100 metres away sitting in her car while eating her lunch. She could see the top of the cabin of the boat. She recognised the boat as her father had sold it to Mattschoss. She could see what she thought were two men talking on the boat and waving their hands in the air. She could only see the top of their heads. She said that she saw one man, not Mattschoss, raise his hand with a pole and bring it down. That man then left the boat carrying a pole. It was put to her that she was mistaken and that the appellant was carrying his boot which had come off in the fight. She denied that fact. She did not recognise the appellant.
A Question from the Jury
After the jurors had been deliberating for about four hours, they asked the judge four questions concerning the reasonableness of the appellant’s response to the perceived danger. The questions were:
1If the threat is greater than the force, should we find the verdict guilty or not guilty?
2If the force is greater than the threat, should we find the verdict guilty or not guilty?
3If the force is proportionate to the threat, should we find the verdict guilty or not guilty?
4The fourth question was not in truth a question but sought explanation of part of a memorandum the trial judge had handed the jury on the issue of self-defence. The memorandum had been called “Appendix D”. It had two questions. The second question was, “Has the prosecution excluded as a reasonable possibility that the accused’s conduct, in the circumstances as he genuinely believed them to be, was reasonably proportionate to the threat that the accused genuinely believed to exist.” In the memorandum the judge had directed the jury that, if the answer to the question is no, their verdict should be not guilty. If the answer was yes, the verdict should be guilty, assuming all other matters had been proved beyond reasonable doubt.
The judge did not directly answer the questions. Instead, he reminded the jury of his direction as to self-defence and re-directed them on Appendix D. There is no complaint about the re-direction.
About three hours later, the jury returned a unanimous verdict of not guilty on count one and a unanimous verdict of guilty on count two.
The Appellant’s Case
Mr Crocker, who appeared for the appellant, submitted that the effect of the verdict acquitting the appellant on count one was that the jury did not accept the evidence of Mattschoss that the appellant had used an iron bar, that the appellant had struck Mattschoss across the head with that bar, and that the appellant had attacked Mattschoss in the manner he described. The last of those contentions is not necessarily correct. The jury could have concluded that it was a reasonable possibility that the appellant had not used an iron bar and had not struck Mattschoss with it.
Mr Crocker also submitted that as the jury had unanimously acquitted the appellant on count one it meant that it did not accept the balance of the evidence given by Mattschoss. He submitted that the evidence of Mattschoss lacked credibility. That was because of his false denials of his affair with the appellant’s wife and the subsequent stalking of the appellant and his wife. He pointed to inconsistencies in the evidence of Mattschoss and to the fact that the medical evidence established that Mattschoss had no defensive injuries to his arms, a fact inconsistent with his evidence that he had shielded his head with his arms when attacked. He pointed to evidence that the appellant had previously undergone a spinal fusion on two earlier occasions so that it was unlikely that he would jump some eight to nine feet down from the wharf to the boat.
Mr Crocker submitted that it is likely that the jury accepted as a reasonable possibility that the incident occurred in the manner described by the appellant. On the appellant’s version of the incident, he was acting in self-defence. The evidence did not, therefore, enable self-defence to be excluded as a reasonable possibility. Although the appellant had delivered a kick, that was, in all the circumstances, a response which was reasonably proportionate to the threat that the appellant genuinely believed to exist. For those reasons, he submitted, the appellant should have been acquitted on count two.
He submitted that the jury’s question indicated that it was considering self-defence, the only issue being whether the appellant’s response was reasonable in light of the perceived danger. It was open to this court, he said, to conclude that the response was reasonably proportionate to the perceived danger.
Relevant Principles
The test whether the verdict of a jury should be set aside on the ground that it is unsafe or unsatisfactory was expressed in these terms in M v The Queen (1994) 181 CLR 487 at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilty or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Citations omitted).
Later the majority said at 494:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. (Citations omitted).
A court of criminal appeal may set aside a verdict only where, after making all due allowance for the advantages enjoyed by the jury, there remains a significant possibility that an innocent person has been convicted. That fact was emphasised in R v Shueard (1972) 4 SASR 36 at 39 in these terms:
To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury. (Citations omitted).
It is appropriate to emphasise that the court should not usurp the functions of the jury. It is for that reason that the court will not quash a conviction on the ground that the verdict was unreasonable if there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty.
Conclusion
The jury might have had a number of reasons for not being satisfied that the prosecution had proved the first count. For example, it might not have been satisfied the appellant did in fact use a bar to strike Mattschoss. It might have concluded that it was a reasonable possibility that Mattschoss suffered the hairline fracture to his skull when he fell on his back at the stern of the boat striking his head on equipment. The fact that the jury did not convict on count one does not mean that they rejected the evidence of Mattschoss in its entirety. It is open to the jury to reject part of the evidence of a witness but to accept another. The jury might have accepted the evidence of Mattschoss that the appellant did jump from the wharf on to the boat and attacked Mattschoss but not entirely in the manner described by him. The jury might not have been satisfied that the appellant was acting in self-defence. The fact that the jury asked a question as to the reasonableness of the appellant’s response does not mean that all jurors necessarily considered that it was a reasonable possibility that the appellant was acting in self-defence.
In short, there are a number of possible explanations for the difference between the two verdicts. The conviction on count two is not necessarily inconsistent with the acquittal on count one. It is not the proper function of this court in a case of this kind to assess the reliability of the evidence of Mr Mattschoss. All of the submissions which Mr Crocker made had already been put to the jury which had the benefit of seeing and hearing the witnesses. This was a case which essentially turned on the jury’s assessment of the witnesses. The effect of Mr Crocker’s submission is to ask this court in the light of the acquittal of the appellant on count one and on the basis of the evidence of Mrs Trickey to assess the reliability of the evidence given by Mattschoss. That is to ask the court to usurp the function of the jury in an impermissible way.
For these reasons the appeal must be dismissed.
LAYTON J. I consider the appeal should be dismissed and I agree with the reasons given by Debelle J.