Moore-McQuillan v Police (No 2) No. Scgrg-98-748

[2000] SASC 232

MOORE-McQUILLAN v POLICE (NO 2)
[2000] SASC 232

Full Court:  Olsson, Wicks and Gray JJ

Application for Leave to Appeal  (filed 31 March 1998)

1. OLSSON J                This is a second application to the Full Court for leave to appeal.  It has been considered in private in accordance with the SCR by a Full Court as presently constituted.

2. It was filed as long ago as 31 March 1998, but no steps have been taken to prosecute it until now.

3. The application relates to a decision of Duggan J on 17 February 1998 (Moore-McQuillan v Police (Duggan J, 17 February 1998, S6535, unreported)).  The present application was well out of time when it was lodged.  No extension of time has ever been sought or granted.

4. As appears from his published reasons for decision, Duggan J allowed, in part, an appeal by the present applicant in relation to convictions for breach of a restraining order against him, which had never validly been confirmed.  However, he dismissed an appeal against convictions for assaulting and resisting police which had been recorded against the applicant consequent upon his pleading guilty to the relevant charges.

5. On the hearing of the lastmentioned appeal Duggan J permitted oral evidence to be adduced from both the applicant personally and also his former solicitor.

6. In a full and carefully reasoned decision, Duggan J accepted the evidence of the applicant’s former solicitor (which was substantiated by explicit written instructions signed by the applicant) and rejected the applicant’s version of events.  Having regard to his findings that the applicant had, after advice, voluntarily pleaded guilty to the charges with a clear understanding as to their nature, Duggan J held that, on all the facts before him, there had been no miscarriage of justice and that no case had been made out for interfering with the convictions in question.  He imposed an appropriate penalty in lieu of an earlier global penalty in respect of all convictions originally recorded.

7. The applicant again seeks to impugn the convictions arising from the guilty pleas.  He also claims $11,500 for costs and expenses.

8. In substance, the present applicant simply seeks to retraverse the issues debated before Duggan J and also (inter alia) asserts that Duggan J erred by “not calling any evidence or witnesses concerning the convictions for assaulting and resisting Police”.  He also seems to complain of the penalty imposed, although his application does not seek leave to appeal against penalty, as such.  The only reference to this is in an affidavit sworn by him.

9. Quite apart from the application being out of time and the undue delay in its prosecution, there is no important point of law or principle identified by the applicant, or any other feature which ought to attract the attention of the Full Court.  In all of the circumstances the application is little short of vexatious.

10. There is no basis upon which the court could properly extend time or grant leave to appeal.

11. WICKS J          I agree.

12. GRAY J            I agree.