Moore-McQuillan v Police (2) - [2010] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOORE-MCQUILLAN v POLICE (2)
[2010] SASC 160
Judgment of The Honourable Justice Nyland
28 May 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORM AND SUFFICIENCY - PARTICULARS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
Appeal against conviction – appellant found guilty by Magistrate of assault and threatening to cause harm – whether apprehended bias on the part of the Magistrate – whether evidence of tape recording should have been admitted de bene esse - whether tape recording should have been excluded on grounds of unfairness - incompetence of counsel - whether appellant unfairly deprived of right to elect for trial by jury - allegation of failure by prosecution to particularise charges.
Held: no bias on part of Magistrate – admission of tape recording de bene esse was appropriate – tape recording properly admitted at trial – claim of incompetence of counsel not substantiated – no error in Magistrate’s refusal of application for election for trial by jury – no merit in complaint as to failure to particularise charges - extension of time to appeal refused and appeal dismissed.
Criminal Law Consolidation Act 1935 ss 39, 19; Summary Offences Act 1935 s 7; Listening and Surveillance Devices Act 1972 ss 3, 4, 5, 7; Criminal Law (Sentencing) Act 1988 s 18A; Magistrate Court Rules 1992 R 21, referred to.
Nudd v R (2006) ALJR 614; R v Watson; ex parte Armstrong (1976) 135 CLR 248, applied.
Bunning v Cross (1978) 141 CLR 54; R v Lobban (2000) 77 SASR 24; R v Smith, Turner and Altintas (1994) 63 SASR 123; Jackamarra v Krakouer and Anor (1998) 195 CLR 516; Robinett v Police (2000) 78 SASR 85, considered.

MOORE-MCQUILLAN v POLICE (2)
[2010] SASC 160

NYLAND J: This is an appeal against a conviction recorded by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 27 May 2008. The appellant’s appeal against that conviction was not lodged until 28 August 2008 and is therefore substantially out of time.
The appellant appeared in person on the hearing of the appeal and Ms Telfer appeared for the respondent. At the commencement of the hearing I indicated to the appellant that I proposed to hear the argument as to the substantive issues and in the event that I was satisfied that there was merit in the appeal, I would grant an extension, but otherwise the extension would be refused.
The appellant was charged on an Information that:
1.On 12 November 2003 at Adelaide he assaulted Owen Winston Downs, contrary to the provisions of s 39(1) of the Criminal Law Consolidation Act 1935 (“CLCA”);
2.That on the same date he threatened to cause harm to Owen Winston Downs contrary to the provisions of s 19(2) CLCA; and
3.That on the same date he behaved in an offensive manner in a public place, namely Court 12 of the Supreme Court Library building, contrary to the provisions of s 7 Summary Offences Act 1935.
The appellant pleaded not guilty to all charges. The trial proceeded before the Magistrate on 19 February 2008, 21 February 2008 and 22 February 2008. At the trial, the prosecution called evidence from four witnesses, namely, Dean Cannon, Owen Downs, Robert Coulter and Detective Sergeant Rutschack. The prosecution tendered an audiotape from the Workers Compensation Tribunal recorded on 12 November 2003 (Exhibit P1), a copy of the transcript of Exhibit P1 (Exhibit P2) and a copy (pp 452-464 (Exhibit P3)) of the transcript of proceedings before Olsson Aux J in the Workers Compensation Appeal Tribunal (WCAT) on 12 November 2003, pages 452-464 (Exhibit P3).
At the trial the appellant was represented by counsel. The appellant did not give any evidence at the trial nor call any witnesses to give evidence on his behalf. A number of letters tendered by the defence were marked for identification but do not appear to have been admitted in evidence. The Magistrate did, however, admit part of a transcript from the WCAT (pp 639-641) on 13 November 2003 (Exhibit D1).
By way of background, it is appropriate to comment that the appellant has been engaged in a dispute with WorkCover over many years and Mr Downs has generally acted as counsel for WorkCover throughout that period of time. On 12 November 2003, Olsson Aux J was due to hear a matter in the Workers Compensation Tribunal involving the appellant and WorkCover. The matter was set down for hearing in Court Number 12 of the Supreme Court Library building. The usual way in which court proceedings before the Tribunal were recorded was by the use of audio tape recording machines. At the relevant time, Mr Cannon was a court reporter whose company was contracted to provide court reporting services to the Tribunal. Mr Cannon arrived at court that day at about 9.30 am or 9.45 am and was present in court before the Judge came on to the bench. He knew the appellant from previous court appearances and recognised him when he came into court.
Also present in court that morning were Mr Coulter, who was a witness for WorkCover, Mr Downs and his instructing solicitor and some Sheriffs’ Officers in the rear of the court. Mr Cannon said he heard some aggressive comments being directed at Mr Coulter, indicating that the appellant might “get him” in an aggressive and threatening manner. As a result, at 10.06 am, Mr Cannon activated the recording equipment. This was about three minutes before Olsson Aux J entered the courtroom. Mr Cannon said he did that as he considered the appellant’s comments to be very inappropriate. He acted without any suggestion or authorisation from any other person in court. The Tribunal’s proceedings were subsequently adjourned at 10.12 am but the recording continued in the absence of the Judge until the Tribunal resumed at 10.19 am.
Mr Downs gave evidence that when he came into court, the appellant was having a heated conversation with Mr Coulter but shortly thereafter the appellant directed his attention to him. Mr Downs described the appellant as “raving” and said the appellant called him such words as “dick flasher”, “corrupt” and “crook”. The appellant said he had taken photographs of Mr Downs’ wife and was going to “drop him”. The appellant ceased when the Judge entered the courtroom but when the Judge left the bench for a short period to allow the appellant to collect his thoughts, the appellant resumed ranting at Mr Downs. He also made some comment about using his crutch. Mr Downs said he had the distinct impression from the words used that the appellant was likely to hit him with the crutch and he was concerned for his welfare.
Mr Downs gave evidence about an incident which had previously taken place between himself and the appellant in the lift at the Sir Samuel Way building at Adelaide. That had resulted in proceedings for assault being taken against the appellant and a conviction recorded with respect to it. The evidence about the earlier incident was, however, the subject of objection by counsel for the appellant. After hearing argument as to that matter, the Magistrate admitted the evidence on the basis that it was relevant evidence as to the alleged apprehension of fear by Mr Downs on this occasion. The Magistrate made it clear that it was admitted only for that limited purpose and was not admissible as showing either propensity or bad character. The Magistrate considered it unnecessary for him to be informed as to the penalty or sentence which resulted from that earlier incident.
In the course of evidence the audiotape (Exhibit P1) was played and Mr Downs confirmed the accuracy of the transcript (Exhibit P2), which included the words attributed to the appellant.
Mr Coulter was a consultant with WorkCover. He had been giving evidence the previous day and had returned to court to complete his cross-examination. When he arrived at court, he moved to the position at the bar table where he had been the day before as that provided more room for his documentation. When the appellant arrived, he asked Mr Coulter to move to the witness box. Mr Coulter complied and continued going through his papers which had been the subject of his evidence the previous day. Mr Coulter said that about five minutes or so before the Judge entered the room the appellant made a number of statements to him to the effect “I know where you live” and mentioned the suburb, but when Mr Downs arrived the appellant turned his attention to Mr Downs. Mr Coulter recalled the use of words such as “fuckwit”, “dick-flasher” and “corrupt”. Mr Coulter said that after the Judge entered the court there was an exchange between the Judge and the appellant, in the course of which the Judge attempted to placate the appellant. When that did not work, the Judge decided to have a 10-minute adjournment and left the room. Mr Coulter thought at that point the appellant was extremely angry, following which there was a heated, aggressive outburst from the appellant. Mr Coulter said the appellant’s voice was raised and he made threats in terms of mentioning to Mr Downs that he was aware of his wife’s activities. Mr Coulter recalled the appellant gesturing with his hand in the shape of a gun.
Detective Sergeant Rutschack was the investigating police officer, but his evidence is of limited assistance. He did not conduct any formal interview with the appellant. He unsuccessfully endeavoured to contact the appellant at his home and eventually spoke to him by mobile phone. When he told the appellant that he wanted to speak to him about the assault matter regarding Mr Downs, the appellant said he wished to lay a complaint for Mr Downs assaulting him.
It appears that after the prosecution opened its case against the appellant, defence counsel sought a voir dire hearing as to the admissibility of the audio tape (Exhibit P1) made by Mr Cannon on the following grounds:
(i)The tape was obtained without the consent of the [appellant] and therefore unlawful – s 4 Listening and Surveillance Devices Act 1972.
(ii)If not unlawful, the taping of the [appellant] was unfair and improper.
(iii) The provenance of the tape was conceded.
(iv)Whilst the tape may be the best evidence of what was said, it should be excluded on either the public policy (Bunning v Cross (1978) 141 CLR 54) or the general unfairness discretions (R v Lobban (2000) 77 SASR 24).
(v)If the tape was excluded the evidence of the prosecution witnesses, Cannon, Downs and Coulter would be tainted (assuming they had refreshed their memories from the tape). If that was so, the defence could not obtain a fair trial and a permanent stay should be ordered.
The prosecution indicated, however, that if a voir dire proceeded prior to the trial, evidence would need to be called from Mr Cannon who would then have to repeat his evidence at trial. The Magistrate finally concluded that it was appropriate to admit the audiotape de bene esse. When delivering his judgment on 27 May 2008, the Magistrate ruled the tape and transcript thereof were admissible and the circumstances did not warrant the exercise of either the public policy or general unfairness discretions to exclude them. The admission of the audiotape into evidence and the use made of it in the course of the trial is the subject of a number of grounds of appeal by the appellant, which I shall discuss shortly.
The assault alleged in count 1 of the Information was one in which no physical contact occurred, but the Magistrate ultimately found that the appellant had made an unlawful threat against Mr Downs, intending to put him in fear that he was about to be assaulted. He therefore found that count proved beyond reasonable doubt. As to count 2, the prosecution relied on two particular comments by the appellant as constituting threats contrary to s 19 CLCA. Both occurred in the period from 10.06 am to 10.09 am. The first related to comments made about Mr Downs’ wife and the second was a statement by the appellant that: [1]
…and any more fuckin’ lies, you keep jumping up and down today and I will fuckin’ drop you.
[1] Exhibit P2, page 3, lines 3-5.
The Magistrate found that the second of those threats which consisted of a threat to Mr Downs had been proved and therefore found the charge of threaten harm alleged in count 2 proved beyond reasonable doubt. He decided, however, that the offence alleged in count 3, the charge of offensive behaviour, was essentially based on the same facts as those considered by way of background in counts 1 and 2. It was therefore duplicitous and was dismissed.
On 27 June 2008, pursuant to s 18A Criminal Law (Sentencing) Act 1988, the appellant was sentenced to imprisonment with respect to both counts for a period of four months. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 18 months. That bond has since expired.
The appellant has appealed against his conviction on a number of grounds, which I summarise as follows:
(1)    The Magistrate was biased against him;
(2)The replaying of the tape during the trial and the recording of what was said without permission;
(3)    The admission of the audiotape Exhibit P1 de bene esse;
(4)The admission of the tape when there was evidence that it was obtained illegally;
(5)    Prejudice to the appellant by admission of the tape;
(6)    Incompetence of counsel.
Appeal Ground 1 – Actual or apprehended bias
The appellant did not suggest actual bias, but submitted that there was an apprehension of bias as he was well-known around the courts. In making this submission, the appellant attributed some significance to the fact that the Magistrate who heard the case was ordinarily allocated to duties in the Elizabeth Magistrates Court. No inference can, however, be drawn from the manner of assignment of a judicial officer to deal with a particular case. It is clear from the submissions of the appellant that a number of Magistrates were disqualified from hearing this particular matter. However, this particular Magistrate had not previously dealt with the appellant. The question of the suitability of this Magistrate to hear the case was in any event mentioned in the course of a hearing before him on 12 November 2007 when the appellant applied to vacate the trial date. When the Magistrate indicated that he would accede to that request, he said that if possible he would list the matter before himself as he did not have the problems that some other Magistrates had in relation to disqualification. He made it clear to the appellant that he had not had any previous dealings with him, nor, as far as he was aware, with the alleged victim. He considered there was no requirement on his part to disqualify himself and unless there was an application to the contrary, he would set dates for hearing for which he was available.[2] As far as I am aware, no application was subsequently made requiring the Magistrate to refrain from hearing the case.
[2] Police v Moore-Mcquillan, Transcript of Proceedings, Magistrates Court, 12 November 2007, 46-47.
The appellant further complained of being disadvantaged by being required to travel to the Elizabeth Magistrates Court, because the Magistrate did not have time to hear the matter in Adelaide. The file does not, however, support this assertion. The trial was conducted in the Adelaide Magistrates Court and it appears that the only occasion upon which the matter was heard at Elizabeth was on 27 May 2008 when judgment was delivered.
In considering the question of bias, the relevant question is whether the circumstances were such that: [3]
… it might reasonably be suspected by fair-minded persons that the learned Judge might not resolve the questions before him with a fair and unprejudiced mind.
[3] R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 264 (Barwick CJ, Gibbs, Stephen and Mason JJ).
In this case the hypothetical reasonable observer could not have any grounds to suppose that the Magistrate might not resolve the questions before him with a fair and unprejudiced mind. This proposed ground of appeal fails.
Appeal Grounds 2 and 3 – Replaying of the tape and the admission of Exhibit P1 de bene esse
As I earlier indicated, objection was taken by counsel for the appellant to the admission of the audiotape on a number of grounds. The Magistrate decided to admit the evidence de bene esse after the prosecution indicated that Mr Cannon would be required to give evidence on the voir dire as to that matter as well as at the trial. There was nothing unusual about the course adopted by the learned Magistrate. The issue to be determined was whether the evidence of the tape was admissible at the trial and that was a matter that could only be determined by the trial Magistrate. Any ruling as to the admissibility of that tape by another judicial officer would not have been binding on the discretion to be exercised by the Magistrate who ultimately heard the case. Once the Magistrate had determined that the exhibit was admissible, the Magistrate was entitled to listen to it as frequently as he thought necessary and it was open to him to rule on its admissibility at any point in the proceedings.
Appeal grounds 4 and 5 – admissibility of audiotape (Exhibit P1)
The significant issue for determination in this matter related to the admissibility of the audiotape, given the circumstances in which it was made. On the defence case the recording was unlawful as it was in breach of the provisions of s 4 Listening and Surveillance Devices Act 1972 (LSDA) which provides:
4—Regulation of use of listening devices
Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.
Maximum penalty: $10 000 or imprisonment for 2 years.
A private conversation is defined in s 3 as:
… any conversation carried out in circumstances that may be reasonably taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.
Counsel representing the appellant submitted that the statements made by the appellant which were recorded on the tape were part of a private conversation directed to Mr Downs. The prosecution argued that the appellant had not engaged in conversation but had directed a series of statements to Mr Downs in the presence of, or clearly audible to, others in the courtroom. The Magistrate, having heard the tape, and by reference to the evidence of Coulter, Downs and Cannon, was satisfied beyond reasonable doubt that the appellant’s comments were substantially if not wholly directed to Mr Downs. He said there was no reply by Mr Downs to the appellant’s comments. The Magistrate went on to describe the appellant’s comments on the tape as being more in the nature of a monologue than a conversation.
He finally concluded that from the manner in which the appellant made the relevant comments, the appellant did not intend what he said to be a private conversation, as defined by s 3 LSDA. The taping was not therefore contrary to sections 4 and 5 LSDA and was not unlawful. I agree with that conclusion. I also agree with the further submission by Ms Telfer that even if the Magistrate was wrong in concluding that the taping was not unlawful, the taping would nevertheless have been permissible by reason of s 7 LSDA. That provides that the prohibition contained in s 4 does not apply where the recording is made of a conversation to which the person is a party “in the public interest or for the protection of the lawful interests of that person”. In R v Smith, Turner and Altintas, Perry J said:[4]
It was in the public interest that evidence be obtained of the commission of a serious offence by Turner and Smith, if such an offence had been committed. Furthermore, the communication or publication of the record of the conversation to the police and, if it was held to be otherwise admissible, to the Court during the course of the trial, is likewise "in the public interest" within the meaning of s7(2).
[4] (1994) 63 SASR 123 at 128.

Notwithstanding the finding that the taping was lawful, it is still necessary to consider whether the tape should have been excluded under the unfairness discretion. Counsel for the appellant submitted that the recording should have been excluded in the exercise of discretion on the following grounds:
(1)The recording was made without the [appellant’s] knowledge or consent;
(2)The comments of the [appellant] were ‘pre-trial discussions’ and should not have been recorded;
(3)Mr Cannon was in effect an ‘officer of the court’ and should be impartial not recording comments that may give rise to criminal charges;
(4)Olsson Aux J had ordered on 13 November 2003 that aside from testing the equipment no taping of discussions should take place other than when the Tribunal was in session (see Exhibit D1, p 641, paragraph 2).
Mr Cannon gave evidence that at the relevant time, he was a court reporter and joint Managing Director of a company called Spark and Cannon Pty Limited. Spark and Cannon were contractors to the Courts Administration Authority to perform court reporting services in various courts and tribunals, which included the Workers Compensation Appeal Tribunal. In that capacity Mr Cannon cannot be regarded as being part of a prosecuting or law enforcement authority. In the circumstances, I consider that the Magistrate was correct in rejecting the defence submission that Mr Cannon was an officer of the Court and that by taping the appellant’s comments outside of the Tribunal’s proceedings, he had compromised his impartiality.
Nor could it be said that the comments of the appellant came under the umbrella of pre-trial discussions which might have protected them from admission into evidence. As the Magistrate found, much of what was said was generalised abuse. The primary argument was, however, that the recording had been made without the knowledge of the appellant. The Magistrate accepted as a reasonable possibility that the appellant was unaware of the recording having been made, but correctly found that the fact that the taping had occurred without his knowledge was not in itself unfair or improper. In Robinett v Police[5] Bleby J considered that there was no impropriety in the police either videotaping a defendant in the charge room or in audiotaping his utterances after he became aggressive in the cells as this was the best evidence of what occurred. The same can be said of the current situation. As the learned Magistrate found, the taping did not have any causative effect on the behaviour or speech of the appellant and it constituted the best evidence of what took place that morning.
[5] (2000) 78 SASR 85.
The appellant placed some reliance on Exhibit D1, which is a transcript of comments made by Olsson Aux J in the WCAT on 13 November 2003, that is the day after this incident took place. On that occasion, there was a discussion in court as to the preservation of the tape relating to the present matter. The Judge then made a direction that apart from what was necessary for testing the equipment prior to the hearing, the tape should not be running except when the Tribunal was in session. That direction post-dated the incident which was the subject of these proceedings and therefore had no relevance to the issues before the Magistrate. The only issue was whether the evidence on the tape was relevant and admissible. In my opinion, the learned Magistrate correctly found that it was and no error has been demonstrated by him in reaching that conclusion.
Ground 6 – Incompetence of counsel
The appellant was critical of counsel appearing for him at the trial and complained that his counsel did not have sufficient time to prepare for the hearing of his case. Counsel previously instructed had ceased to act before the hearing and the appellant was obliged to engage another lawyer who did not have much time to prepare. The appellant said that his counsel was unaware of the history of proceedings between Mr Downs and the appellant which could have been used in the course of cross-examination to discredit Mr Downs.
A perusal of the file reveals that the appellant has had a number of solicitors acting for him in this case and the trial date was vacated on two occasions prior to the matter finally proceeding.
On 12 November 2007 the appellant appeared in person before the Magistrate who ultimately heard the trial. He applied to adjourn the trial which had been listed for that day on the basis that his solicitor had just withdrawn. After hearing argument as to that, as well as a number of other matters, the Magistrate finally vacated the date for trial and re-listed it for hearing to commence on 19 February 2008. This allowed the appellant a period of about three months, which the Magistrate considered gave the appellant adequate time to obtain appropriate representation. However, he gave leave to both parties to call the matter on if there were to be any pre-trial applications, but made it clear that the matter would proceed, regardless, on the appointed date.
When the matter came on for hearing on 19 February 2008, the appellant appeared represented by counsel. There was no suggestion by counsel then appearing that he had not had sufficient opportunity to obtain instructions or was otherwise prejudiced by any lack of instructions from the appellant. Counsel took relevant objections to the admission of evidence and cross-examined the witnesses, including Mr Downs, as to the events that had taken place on the day in question. Mr Downs was examined about his previous involvement with the appellant with respect to charges before the Court. Counsel objected to the leading of evidence as to the prior criminal history of the appellant, insofar as it related to the offence alleged against Mr Downs. It would appear that he made a forensic decision to limit his cross-examination of Mr Downs as to his prior contact with the appellant, and that is understandable, as that potentially could have been prejudicial to the case presented by the appellant. In any event the credit of Mr Downs was less critical in this matter than might otherwise have been the case in view of the evidence arising out of Exhibit P1.
A party is generally bound by the conduct of his or her counsel at trial. A mere error of judgment will not vitiate the outcome of it. Only where an appellant demonstrates that the conduct of the trial by his counsel has given rise to a miscarriage of justice will a conviction be overturned.[6] The appellant has failed to point to anything in the conduct of the trial by his counsel which would require this Court to interfere.
[6] Nudd v R (2006) 80 ALJR 614 at 618-619 (Gleeson CJ).
Further grounds of appeal
In the course of the initial hearing of this appeal, the appellant complained that he had not been provided with a copy of the transcript of the hearing, nor the judgment subsequently delivered by the learned Magistrate. As a result, he was disadvantaged in arguing his appeal. I therefore made arrangements for a copy of both to be provided to the appellant and adjourned the appeal to a later date. When the matter came on for further hearing, the appellant indicated that he wished to argue additional matters, which I summarise as:
Ground 7 – Failure of the prosecution to comply with Magistrates Court Rule (“MCR”) 21, and
Ground 8 – Failure to provide particulars.
Ground 7 – Failure to comply with MCR 21
The appellant complained (as he did in his appeal in Action Number 1355 of 2008 heard contemporaneously with this appeal) that the failure by the prosecution to provide him with the necessary information as to the charge against him had deprived him of the right to elect for trial by jury, pursuant to Magistrates Court Rule 21. The appellant raised this matter with the Magistrate on 12 November 2007 as part of the appellant’s complaint about the problems with his legal representation. The Magistrate subsequently refused the application by the appellant for an election for trial by jury. The Magistrate formally set out his reasons for refusing that application when he delivered judgment on 27 May 2008. He said:[7]
This matter has a lengthy history, with the Defendant first coming before the court in June 2006. It was previously listed for trial in AMC on two occasions, 22 March 2007 and 12 November 2007. Neither time did the trial proceed. From the court file it appears the issue of an election had only been raised with the court on one occasion in a facsimile dated 8 September 2007 by a former legal representative for the Defendant. The facsimile referred to the issue but no election notice was filed.
Rule 21.07 states an election is to be made within six weeks of the Defendant’s first appearance before the court or service of a summons (the former is relevant in this case as the Defendant was arrested on a warrant). In the alternative, the election must be filed within 14 days of delivery by prosecution of a summary of evidence (whichever is the latter). Whilst it was unclear from the court file or defence submissions when exactly the time for election had passed (as the court file noted when the summary of evidence was requested by the Defendant, but not when it was received), the defence conceded that the Defendant was substantially out of time.
Rule 21.08 states there may be no election once a minor indictable charge has been set for trial in the Magistrates Court with consent of the Defendant. As stated before, this matter had been set for trial twice previously. On each occasion this was done (15 August 2006 and 16 May 2007) in the presence of the Defendant. On the first occasion the Defendant was represented by counsel and on the second he was unrepresented.
Even taking the most favourable view of the Defendant’s argument, the Defendant’s difficulties with retaining the same legal counsel is not an adequate explanation for the lengthy delay. Also to be considered was the fact that Prosecution was twice previously ready to proceed to trial with its witnesses available at court. If an election were granted, the trial would again be delayed (and for a substantial time).
[7] Police v Moore-McQuillan, Judgment, Magistrates Court, 27 May 2008 at [7]-[10].
This matter was carefully considered by the Magistrate and in my opinion there is no error disclosed by the refusal of the application.
Ground 8 – Failure to provide particulars
The appellant further submitted that the charges against him were:[8]
… rolled up evidence and charges. The charges were rolled up in the nature where no particulars were given and the particular matters to sum it up and all in a summary, so it wasn’t itemised.
[8] Moore-McQuillan v Police, Transcript of Proceedings, Supreme Court of South Australia, 17 February 2010, 12.
When I endeavoured to clarify what the appellant meant by a “rolled up” charge, he said that the charges were not clear as there was a lack of particularity as to the part of the day to which the charge or charges related. In support of this submission the appellant referred to Jackamarra v Krakouer and Anor.[9] That case was concerned with an application for an extension of time for entering an appeal. The Full Court of the Supreme Court of Western Australia dismissed the application for extension and dismissed the appeal for want of prosecution, principally on the basis that the appeal lacked any real prospect of success. In so doing, the Full Court did not have before it a transcript of evidence or exhibits from the trial. The High Court held (per Brennan CJ, McHugh and Kirby JJ, Gummow and Hayne JJ dissenting), that the Full Court could not come to the conclusion that the appeal had no prospects of success unless it examined all the evidence.[10] The High Court ordered that the time for entering the appeal be extended.
[9] (1998) 195 CLR 516; (1998) 153 ALR 276.
[10] (1998) 195 CLR 516 at 523 [13].
Although that case discussed some procedural matters attendant upon an appeal, I am unable to glean anything from that decision of relevance to the present argument. I should add that the appellant, as part of his submission that he was unaware of the particulars of the charge against him, suggested that the tape (Exhibit P1) had been concocted and could have been compiled from other occasions on which he had been to court. In response to a question from me as to whether he disputed whether this was an accurate tape of what he said on the day, he said:[11]
Nobody knows. To tell you the truth, if you said ‘Well, take a stab in the dark, do you reckon it sounds like the day?’ It sounds like any day I go to court. It sounds like yesterday, it sounds like Monday. My language hasn’t changed. It’s the same language.
[11] Moore-McQuillan v Police, Transcript of Proceedings, Supreme Court of South Australia, 17 February 2010, 25-26.
It is unnecessary to canvass this aspect of the matter as there is nothing to support the appellant’s complaint as to the accuracy of the recording. The complaint as to lack of particularity was one of the grounds upon which the appellant relied at the hearing on 12 November 2007 when he sought to vacate the trial date. At that time, counsel appearing for the prosecution informed the Magistrate that the relevant statements detailing the charges had been provided to the various legal practitioners representing the appellant. He went on to say:[12]
MR BOUCAUT:   And if it helps Mr Moore-McQuillan I’m quite happy to articulate that part of the statement which the prosecution relies upon as to constituting a threat and that is at page one, bottom paragraph, ‘He said he was going to get me, that he knew my wife, he knew where I lived and he would get my wife when she was bending down in the garden or words to that effect. At the time, he said he was going to get me he had his left hand extended pointing in my direction with his hand shaped like a gun he said, “these are threats”. He continued to swear throughout this altercation. He was abusing and threatening me and my wife for about ten minutes’ so that’s essentially the allegation in a nutshell very, very simple and if Mr Moore-McQuillan were –
DEFENDANT:     Is that the allegation for what?
HIS HONOUR:     We’ll let Mr Boucaut complete his submission and then you can proceed.
[12] Police v Moore-McQuillan, Transcript of Proceedings, Magistrates Court, 12 November 2007, 35.
Counsel then indicated that if the appellant were to plead guilty to count 2, the prosecution would not proceed with counts 1 and 3. There was no agreement reached about that matter, but when the Magistrate vacated the trial date and fixed a new date for trial, he granted leave for the matter to be called on again. He said:[13]
… if you were for whatever reason, unrepresented and you were unhappy with the degree of particularity or some other aspect of the disclosure by the DPP to you what I have said is that you will have, as the DPP will, liberty or right through the Registry that is to have the matter called on before me and you can raise any one of those issues with me if you have representation they will either do that or sort it out between themselves and the DPP otherwise we will come back on 19 February next year and the trial starts.
[13] Police v Moore-McQuillan, Transcript of Proceedings, Magistrates Court, 12 November 2007, 49-50.
There is nothing on the file to suggest that the appellant thereafter asked for the matter to be brought on for further hearing with respect to an application for particulars. As it happened, when the Magistrate delivered his judgment, he dismissed count 3 as duplicitous as it was based on the same facts as those considered by way of background to counts 1 and 2. There is no merit in this proposed ground of appeal.
There was ample evidence to support the findings made by the learned Magistrate. The appellant has failed to establish any grounds upon which the Court should interfere with the conviction recorded in the Magistrates Court. The application for extension of time is therefore refused and the appeal is dismissed.