Moore-McQuillan v Police (No 3) No. Scciv-97-240

MOORE-McQUILLAN v POLICE (No 3)
[2002] SASC 235
Full Court: Olsson, Wicks and Gray JJ

Olsson J: This matter comes before the Full Court, as presently constituted, for reconsideration, by virtue of an order made by the High Court of Australia on 19 April 2002.
It is first necessary to embark upon a resume of the history of the proceedings, to establish the context in which the referral for reconsideration arises.
On 17 February 1998, Duggan J. published reasons (unreported -- Judgment S6535) relating to an appeal by Mr Moore-McQuillan against his convictions of three counts of failing to comply with a restraining order, one count of assaulting a police officer in the execution of his duty and one count of resisting a police officer in the execution of his duty.
As Duggan J. pointed out in those reasons, the appeal was against both conviction and also a global sentence imposed in respect of all offences. This was so, notwithstanding initial pleas of guilty to all counts by Mr Moore-McQuillan and the fact that, at a later stage, having obtained written instructions in that regard, the solicitor for Mr Moore-McQuillan specifically declined to make an application for leave to withdraw the pleas which had already been entered.
In his reasons Duggan J. concluded that the alleged breaches of the restraining order necessarily failed on technical grounds and that the convictions in respect of them must be set aside.
He went on to emphasise that the evidence clearly established that Mr Moore-McQuillan had not only pleaded guilty to the other charges, but, as above recited, having been given an opportunity of later withdrawing them, had, after legal advice, maintained those pleas.
Duggan J. recited that Mr Moore-McQuillan gave oral evidence before him, concerning the last mentioned pleas in the Magistrates Court, which was contradictory and in conflict with that of two solicitors who had represented him at first instance and also gave oral evidence. The learned judge rejected Mr Moore-McQuillan's evidence and preferred that of his two solicitors. Mr Moore-McQuillan's evidence as to his state of mind and understanding at the time was also rejected. Duggan J. expressly found that, when he pleaded, Mr Moore-McQuillan understood the charges against him and positively intended to plead as he did.
Ultimately, Duggan J. was unable to discern any miscarriage of justice and concluded that "no case has been made out for interfering with the convictions recorded on the charges of assault police and resist police".
His final pronouncement on 17 February 1998 was recorded in the relevant transcript in these terms --
"The appeal against the convictions on the charges of breaching the restraint order will be allowed and those convictions will be set aside. The appeal against the convictions for assaulting police and resisting police will be dismissed. The global penalty will be set aside and I will hear submissions on the penalty to be imposed in relation to the offences of assaulting police and resisting police."
Following submissions to Duggan J. on 17 February 1998, he stood the matter over until 25 February 1998.
On the last-mentioned occasion, Duggan J. recorded convictions in respect of the offences of assaulting police and resisting police and imposed a global penalty, in respect of both, of imprisonment for one month. He intimated that he would suspend that sentence upon entry by Mr Moore-McQuillan into a bond of $50 to be of good behaviour for two years. He ordered payment of levies totalling $50, but declined to make any order as to the costs of the appeal or the costs of what he described as "the appearance before the Magistrates Court". (As a matter of logic the learned judge could only there have been referring to the appearance before the Magistrates Court in relation to the prosecution proceedings which led to the five convictions above referred to.) After some discussion about penalties already otherwise imposed, Duggan J. reduced the period of the bond to 12 months. Mr Moore-McQuillan thereupon entered into the requisite bond.
The Crown Solicitor thereafter submitted a draft order for sealing. It is not clear whether, in the Registry, any alterations were made to the original draft, by way of the settling process. At any event, remarkably, on 15 April 1998, the Chief Clerk signed and caused to be sealed an order which was expressed in these terms --
"1.That the appeal be dismissed.
2.That a global penalty be imposed upon the appellant for the charges, namely one month imprisonment which is suspended upon the appellant entering into a bond in the amount of $50 to be of good behaviour a period of 1 year.
3. That there be no order as to the costs of the appeal."
What obviously occurred was that the drafter of the order treated the pronouncement of Duggan J. on 17 February 1998 as having already, separately, operated to dispose of the three failures to comply counts. However, what was overlooked was that the proceedings had come before Duggan J. as a single, composite appeal. No separate order had, in fact, been sealed and entered apropos the counts in question.
The order which was sealed and entered was plainly intended to relate only to the two remaining counts but, by virtue of its unqualified terms and in absence of a separate order disposing of the three failure to comply counts, also purported to operate in relation to them. This situation does not appear to have been appreciated by anyone until much later.
On 17 March 1998, Duggan J. refused an application by Mr Moore-McQuillan for leave to appeal.
On 31 March 1998, Mr Moore-McQuillan renewed an application for leave to appeal against the decision of Duggan J., this time to the Full Court. In accordance with the Rules, he filed a summary of argument which recited that Duggan J. had, on 17 February 1998, set aside the three "convictions of breaches of a restraint order". He then sought to impugn the decision of Duggan J. as to the convictions for assaulting police and resisting police.
The renewed application for leave was considered by the Full Court (As presently constituted) in private, in accordance with the Rules. For reasons published by the Full Court on 7 July 2000 (Moore-McQuillan v Police [2000] SASC 232), leave was refused.
Mr Moore-McQuillan then prosecuted an application for special leave to appeal to the High Court. According to the transcript of the hearing of that application, there were two matters brought before the High Court, one of which relates to a quite separate proceeding (No 748 of 1998).
In the last-mentioned matter (which is the subject of separate consideration by this court and reasons published by it) leave to appeal was refused by the Full Court, for reasons also published on 7 July 2000. (Moore-McQuillan v Police [2000] SASC 229).
At the hearing for special leave, the judges of the High Court raised an issue which had not previously been identified by anyone. They pointed to the form of the order of Duggan J, as sealed and entered on 15 April 1998, and expressed the view that this was plainly erroneous in its form. After discussion with the Solicitor General and Mr Moore-McQuillan, the High Court made the following orders in each of the two matters before it --
"1. Grant special leave and the appeal be allowed instanter.
2.Set aside the orders of the Full Court of the Supreme Court of South Australia, refusing leave to appeal to that Court.
3.Remit the matter to the South Australian Full Court for further hearing and determination.
4.The respondent to pay the applicant's costs in this Court. Costs in the Full Court to be decided by that Court."
It is to be noted that, in making the above orders, the judges of the High Court did not entertain any argument related to the merits. They were solely concerned, at that point, to erect a mechanism to correct the obviously faulty order sealed and entered on 15 April 1998, so that the proceedings could be placed in order. It is, perhaps, unfortunate that, upon discovery of what was a manifest error, the parties did not seek to have the situation referred to the Full Court for correction, pursuant to the provisions of the Supreme Court Rules. As it is, there may now well be the need for a second application to the High Court for special leave.
Be that as it may, when the proceedings in action No 240 of 1997 came before this Court for reconsideration on 28 May 2002, the Court, with the concurrence of the parties made an order to the following effect --
"1.     That leave to appeal initially be granted for the limited purpose of correcting the erroneous sealing and entry, on 15 April 1998, of what purports to be the order of the Honourable Justice Duggan dated 25 February 1998.
2.     That the appeal be forthwith allowed to the extent necessary to give effect to the orders hereafter made.
3.     That the order referred to in paragraph 1, as sealed and entered, be removed from the Court file.
4.That, for the purpose of giving effect to the decisions of the Honourable Justice Duggan pronounced in these proceedings on the 17th and 25th days of February 1998 respectively, two separate orders be sealed and entered herein, in conformity with this order.
5.That the first of such orders be dated 17 February 1998 and that the body of it read as follows -
‘ 1.    That the appeal against the three convictions recorded in the Magistrates Court at Adelaide on 22nd March 1996, against the appellant, for failure to comply with a restraining order, be allowed and the said convictions be set aside.
2.     That the appeal against the two convictions recorded in the Magistrates Court at Adelaide on 22nd March 1996, against the appellant, for assaulting a police officer in execution of his duty and resisting a police officer in the execution of his duty respectively be dismissed.
3.     That the single penalty imposed by the Magistrates Court in respect of all of the aforesaid convictions, pursuant to the provisions of section 18A the of the Criminal Law (Sentencing) Act 1988, be set aside.
4.     That further consideration of the question of the penalty to be imposed in respect of the convictions referred to in paragraph 2 of this order be adjourned.’
5.     That the second of such orders be dated 25 February 1998 and that the body of it read as follows -
‘ 1. That, pursuant to the provisions of section 18A of the Criminal Law (Sentencing) Act 1988, the appellant be sentenced to imprisonment for a period of one calendar month in respect of his convictions, on 22nd March 1996, in the Magistrates Court at Adelaide for assaulting a police officer in the execution of his duty and resisting a police officer in the execution of his duty, such sentence to be suspended upon the appellant entering into a bond of $50 to be of good behaviour for a period of one year from the date of this order.
2.    That there be no order as to the costs of the appeal or the costs of the appearance before the Magistrates Court in relation to the convictions the subject of this appeal.’
6.That the applicant's application to the Full Court filed on 31 March 1998, for leave to appeal, do stand as an application for leave to appeal against paragraph 2 of the order of the Honourable Justice Duggan dated 17 February 1998 and against the whole of the judgment of the Honourable Justice Duggan dated 25 February 1998 to be further considered by the Full Court."
That order having been made, both Mr Moore-McQuillan and the Crown were afforded an opportunity to present such further written submissions, in relation to the general application for leave to appeal, as they might be advised. It should be mentioned that Mr Moore-McQuillan preferred to adopt that course, as it enabled him to collect his thoughts and express them in an orderly fashion.
Mr Moore-McQuillan duly presented some further written submissions in addition to those which had earlier been filed by him; and which we have also taken into account. The court has, in addition, had regard to the written response which has come to hand from Mr Powell, of counsel for the Crown.
A perusal of the further written submissions reveals that they range considerably beyond the submissions which were originally made both to Duggan J. and this Court, as to the basis on which leave to appeal is sought. True it is, that they seek to revisit the factual history as to how and why the original guilty pleas were entered. However, they also seek leave to canvass a variety of other issues, which do not appear, previously, to have been debated, some of which are of dubious direct relevance to the convictions now in question. Mr Moore-McQuillan now also keep seeks to complain that the sentence imposed on him by Duggan J. was "too severe and harsh".
As to the matters which are beyond the those originally relied upon, these appear to be no more than classic examples of the constantly shifting stance which the applicant has demonstrated over time. They were, in the main, matters which could and should have been raised at the time of the original pleas and were not. It is now too late to agitate them, the more so as most appear to be of dubious merit.
Central to the whole situation are the reiterated complaints that those who represented Mr Moore-McQuillan applied improper pressure on him to plead guilty to the relevant offences and later maintain those pleas; and that he was, de facto, under economic duress to enter the pleas.
Having carefully had regard to all of the material before this Court, I see no reason for departing from the conclusion earlier expressed in Moore-McQuillan v Police (No 2) [2000] SASC 232.
In that decision it was pointed out that the application for leave to appeal had been filed as long ago as 31 March 1998, but no steps had been taken to prosecute it until July 2000. It was therefore well out of time when it was lodged and no extension of time has ever been sought or granted, although Williams J. granted an extension of time to set down the application for leave, when it appeared that the provisions of SCR 94 had not been complied with.
As earlier recited, on the hearing of the appeal against the convictions for assaulting and resisting police, Duggan J. permitted oral evidence to be adduced from both the applicant personally and also his former solicitors.
In full and carefully reasoned decisions, the learned judge accepted the evidence of the applicant's former solicitor (which was substantiated by several explicit written instructions signed by the applicant) and rejected the applicant's version of relevant factual events. Having regard to specific findings by him that the applicant had, after advice, voluntarily pleaded guilty to the charges in question 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 thereupon imposed what he considered to be an appropriate penalty, in lieu of the earlier global penalty which had been imposed in respect of all convictions originally recorded.
By his present application Mr Moore-McQuillan again seeks to impugn the convictions arising from the guilty pleas; and also claims $11,500 for costs and expenses.
As this Court earlier pointed out, the applicant simply desires to retraverse the issues debated before Duggan J. and also (inter alia) asserts that the learned judge 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, in terms, seek leave to appeal against penalty, as such. The only reference to that is in an affidavit which was sworn by him and his written submissions.
I am driven to the conclusion that, quite apart from the application being grossly out of time and the undue delay in its prosecution, there is simply no important point of law or principle identified by Mr Moore-McQuillan, or any other feature of the case which ought to attract the attention of the Full Court. On a careful perusal of all of the material available, it is impossible to discern any basis for reasonably asserting that Duggan J. fell into error in arriving at the conclusions to which he came.
Expressed in another fashion, I cannot see any fairly arguable ground of appeal which could properly occupy the attention of the Full Court. On the contrary, I would have thought that, given his assessment of relative credibility and his findings of fact on the evidence led before him, the conclusions arrived at by Duggan J. were inevitable. There is nothing to suggest either that his assessment of credibility was illfounded or the proceedings miscarried before him, or that his findings were other than the necessary end product of the relevant facts.
As to the complaint concerning the severity of the sentence imposed by Duggan J. all that need be said is that, on the face of it, it appears to be a modest and reasonable penalty in respect of the convictions in question. There is simply no reasonably arguable footing upon which it could be impugned.
I remain of the opinion that there is no basis upon which the Full Court could properly extend time or grant leave to appeal in this matter.
I would therefore dismiss the application for leave to appeal to the Full Court.
WICKS J: For the reasons given by Olsson J, I would dismiss the application for leave to appeal to the Full Court. I have nothing to add.
GRAY J: I agree.

[2002] SASC 235

1 August 2002