45 Applying the same reasoning, on the charge of armed robbery contrary to s 158 (a) and (b) of the Act, a verdict of guilty of robbery contrary to s 155 of the Act is available as an alternative verdict: see R v Fitzpatrick (1988) 50 SASR 10.

46 It is one thing to say that those verdicts were available as a matter of law, but another to say that in the particular circumstances of the case there was an error of law, or that there has been a miscarriage of justice, because these verdicts were not left to the jury as alternatives.

47 It is relevant to bear in mind that the prosecutor did not at any stage open to the jury the possibility of either alternative verdict. Nor was that possibility raised by counsel with the judge at any stage. The only alternative verdict that was raised was one that was not available, and this was raised after the summing up. The prosecutor elected to present the case on a narrow footing, that I have described above. But authority establishes that the failure of counsel to raise an alternative verdict with the jury and with the judge is not decisive. As this court made clear in Benbolt, there is a legal obligation to leave alternative verdicts that are available. In that case King CJ said, referring to s 57 of the Juries Act 1927 (SA), at 18:

"I do not think that it requires a judge to leave for the consideration of the jury alternatives for which there is no reasonable basis in the evidence, but I think that it does make clear that all alternatives are to be disposed of by the verdict except in the case of disagreement in which case fresh proceedings may be taken."

He went on to refer to the duty of the judge to give a direction on alternative verdicts as one that was owed to the accused and to the prosecution. He added at 19:

"There is, however, an overriding obligation on the trial judge to ensure that the accused is accorded a fair trial. There may be situations in which the leaving of alternative verdicts to the jury would, having regard to the course of the trial, amount to a denial of natural justice. In such cases, the judge would be justified in not leaving the alternatives to the jury, and the immunity which the accused would gain from conviction of alternative offences, might be the price which has to be paid for procedural justice. Such cases, however, should be rare."

In short, if an alternative verdict is available as a matter of law, the trial judge is required as a matter of law to direct the jury about that verdict if it is reasonably open on the evidence. That is subject to the question of fairness to which King CJ referred.

48 Were these alternative verdicts reasonably open on the evidence? Was there a "reasonable basis on the evidence" for them, as King CJ put it in Benbolt at 18? In my view they were not. The prosecution case was that Mr Perdikoyiannis agreed to be involved in the luring of Mr Nicolaidis into the van, with a view to him being robbed by the men, one at least of whom he knew had a gun (Steve), the men using such violence or force as they might have to use, to get Mr Nicolaidis to submit. Mr Perdikoyiannis admitted in evidence that he knew that Steve had a gun with him at the time in question. It was not a case in which the prosecution ever suggested that Mr Perdikoyiannis was guilty on the basis that he agreed to participate in a plan to commit a lesser offence, such as robbery, but was guilty because the use of a gun and the infliction of grievous bodily harm with intent to do grievous bodily harm should have been contemplated as possible incidents of the arrangement to which Mr Perdikoyiannis agreed. The prosecution case was that Mr Perdikoyiannis was party to a plan to do the very thing that eventuated.

49 In my view, to leave to the jury either of the suggested alternative verdicts, on the basis that the jury might be satisfied that Mr Perdikoyiannis agreed only to a plan involving robbery without the use of a gun, or the infliction of grievous bodily harm without the intention to do grievous bodily harm, would be to raise a new and speculative hypothesis, and not to raise an alternative approach that was fairly open on the facts. The real issue in this case was the claim that threats by Steve gave rise to a defence of duress. My conclusion is, to some extent, influenced by the manner in which the prosecution put its case, but that circumstance is not decisive. It seems to me that the evidence did not fairly lend itself to these alternative approaches. Indeed, to put them to the jury might have been unfair to Mr Perdikoyiannis by raising the risk of a compromise verdict from the jury.

50 In reaching this conclusion I am not relying on the fact that the jury convicted Mr Perdikoyiannis of the offences actually charged. The decision of the High Court in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [7]-[20] Gleeson and Gummow JJ; at [88]-[91] Callinan J makes it clear that, when the complaint is that alternative and lesser verdicts were not left, it is not necessarily an answer to that complaint to say that the jury convicted of the greater offence, therefore they must have been satisfied as to the elements of the greater offence, and so they would inevitably have convicted of the greater offence even if the lesser alternative had been left. To the extent that Benbolt decides otherwise on this point, is no longer good law in the light of the decision in Gilbert.

51 My conclusion rests on the proposition that, having regard to the circumstances and, to a lesser extent, the manner in which the case was presented, the alternative verdicts were not reasonably open on the evidence.

52 If I am wrong in that, I am satisfied that the verdicts should stand, because the failure to leave the alternative verdicts gave rise to no miscarriage of justice. Had the lesser verdicts been left, the prosecutor would have been entitled to have the judge direct the jury that if Mr Perdikoyiannis contemplated the use of a gun as a possible incident of the plan, and the causing of grievous bodily harm with intent to cause grievous bodily harm as a possible incident of the plan, he was guilty of the offence as charged. It would not have been right to leave the lesser and alternative verdicts without raising that alternative process of reasoning with the jury in relation to the view of the facts on which those lesser verdicts might have been based. Once the defence of duress was rejected, as it must have been, my view is that it was clear that, if directed in this fashion, the jury would have convicted Mr Perdikoyiannis of the offences as charged. Accordingly, the case is one in which the proviso can be applied.

53 For those reasons I would dismiss the appeal against conviction.

55 These were very serious offences. Each offence is an offence of a serious character or type. Each offence was serious in terms of the conduct involved and the consequences for the victim. Each offence called for a substantial penalty, with a significant deterrent element.

56 Mr Perdikoyiannis played a significant part in the offences. He was not the leader in the offences, but the part he played was an important one.

57 He was not a first offender, although he had no serious convictions as an adult.

58 The offence of armed robbery alone could have attracted a sentence of between six years and eight years imprisonment. The sentence the judge imposed for these three offences could easily have been greater.

59 At the time of the offences Mr Perdikoyiannis was 20 years of age, and when sentenced he was 23 years of age. It is regrettable that a man as young as this should face a sentence of that severity. The judge said that but for his age the sentence would have been heavier. The sentence imposed was appropriate to ensure adequate punishment and an adequate element of deterrence.

60 In the course of his sentencing remarks the judge said that what had happened was something that could not be tolerated. In the course of briefly summarising what had happened, he referred to Mr Nicolaidis having been threatened with death. In these remarks the judge was doing no more than describing what had occurred. He was not, I consider, making a finding that Mr Perdikoyiannis himself threatened the victim with death. I do not accept the submission that this part of the sentencing remarks reflects an error of fact.

61 The sentence was appropriate, and it is for those reasons that the appeal against sentence must be dismissed.

62 The appeal against conviction and the appeal against sentence should be dismissed.

63 Besanko J: In my opinion, the appeal against conviction and the appeal against sentence should be dismissed. I agree with the reasons of the Chief Justice.

64 Sulan J: I agree with the reasons of Doyle CJ. I agree that the appeal against conviction and the appeal against sentence should be dismissed.