Moore-McQuillan v Police No. Scciv-00-193
[2001] SASC 95
•3 April 2001
MOORE-McQUILLAN v POLICE
[2001] SASC 95
Magistrates Appeal
1................ BLEBY J.......... This is an appeal against a conviction and sentence in the Magistrates Court for common assault, contrary to s 39 of the Criminal Law Consolidation Act 1935. The circumstances of the offence were that on 8 July 1998 at Adelaide, the appellant assaulted Mark Nicholas Rice. The victim was at the relevant time a barrister known to the appellant from previous dealings over some worker’s compensation litigation in which the appellant was a party. At about 12.35 pm, the appellant approached the victim in the Central Market Arcade near a photo booth while the victim was in the course of completing a transaction with the manager of the photo booth, a Mr Dakin. The Magistrate found that the appellant stood close to the victim and spoke to him in an abusive fashion. Among other expressions, it was found that the appellant said to the victim “If you want to fight, I’ll fucking get you”, “You fucking low life, if you’re looking for a fight, I’ll fucking get you” and “If you want to fight, I’ll fucking take you piece by piece”. During this altercation, the appellant moved to within about one foot of the victim. The Magistrate then found that the appellant spat at the victim, with the effect that saliva landed on his left cheek, left ear and chin. The victim then cleaned his face with a handkerchief. The appellant walked away from the scene, but looked over his shoulder in the victim’s direction as he did so.
The Magistrate found that the victim feared for his safety as a result of the abusive and threatening remarks of the appellant, and was left distressed and shaken by the incident. He found the appellant guilty of the offence and sentenced him to six months imprisonment, suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for 18 months. Further conditions of the bond include that the appellant be under the supervision of, and comply with all reasonable directions of, a probation officer including any directions to attend for psychological treatment, counselling and anger management courses. The Magistrate, pursuant to s 19A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”), imposed a restraining order, in such terms that the appellant is restrained:
(1)... from approaching or communicating with [the victim] in any way except in the course of and incidental to attending at any proceedings before a court or tribunal in which the defendant is a party or witness and in which [the victim] represents a party;
(2)from harassing or otherwise interfering with [the victim];
(3)... from attending at or in the vicinity of the premises situated at 14 Market Street, Adelaide, or any other premises from which [the victim] may from time to time work and from attending at or in the vicinity of any premises at which [the victim] may from time to time reside.
A firearms order was also made under s 19A of the Sentencing Act:
(1)that any firearm in the defendant’s possession be confiscated and disposed of by the Registrar of Firearms by forfeiting same to the Crown;
(2)... that a member of the police force is authorised to enter any premises in which any firearm in the defendant’s possession is suspected to be and to search for and take possession of any such firearm;
(3)that the defendant is disqualified from holding or obtaining a licence or permit to be in possession of a firearm;
(4)... any licence or permit to be in possession of a firearm currently held be cancelled.
The appellant has advanced many grounds of appeal. Some of these were struck out at the hearing of the appeal. The grounds which remain still contain some overlap as between them, so I will attempt to synthesise the grounds into the essential complaints which the appellant makes regarding his conviction and sentence.
Alleged undue haste
The appellant claimed that the listing of the hearing of the assault charge in the Magistrates Court was rushed and that he did not have the opportunity adequately to prepare his defence as a result.
The trial began on Monday 24 January 2000. The matter, along with another matter involving the appellant concerning a hearing for confirmation of a restraining order, came before Mr Gurry ASM. He set down the matter for hearing immediately before Mr Field SM in another courtroom. The appellant claimed during argument on the appeal that he was not aware that the trial for the assault charge would be going ahead on that day.
The appellant had been remanded on many occasions since the complaint had been laid on 22 October 1998. On a number of occasions he had failed to appear. On 10 December 1999 he had been remanded to appear on 24 January 2000.
The appellant did request an adjournment of the proceedings when they came before the Magistrate, Mr Field. However, an examination of the transcript reveals that he only did so on medical grounds, not on the grounds that he was not otherwise ready to proceed. He claimed that his psychological condition and course of medication made him unable to continue. The Magistrate refused to adjourn the proceedings on this basis. This refusal to adjourn the proceedings was the subject of an expedited appeal to the Supreme Court which was heard by Mullighan J the following day, and the proceedings in the Magistrates Court were adjourned on that day pending the hearing of that appeal. That appeal was dismissed as incompetent.
Upon the matter resuming before the Magistrate, the proceedings were adjourned to Thursday 27 January 2000 (following the Australia Day holiday) to enable the appellant to serve subpoenas, and being a time when the appellant’s psychiatrists were able to attend court to give evidence of the appellant’s mental fitness to conduct his defence. Once the psychiatrists had given their evidence, and the appellant and the prosecutor had made submissions, the Magistrate refused the appellant’s application for an adjournment. This was the only time the Magistrate was called upon to decide an application for an adjournment. The terms of this application were quite specifically limited to the appellant’s claim that he was not medically fit to conduct his trial. The Magistrate found that he was. The appellant cannot now seek to claim that he did not have the opportunity to prepare for his trial when at no stage did he seek to have the trial adjourned on this basis at the relevant time.
In any event, in relation to the appellant’s general preparedness to conduct the trial, it can be seen that the Magistrate at various times granted brief adjournments in the course of the evidence to allow the appellant to prepare his cross-examination of witnesses and other facets of his case. I do not consider that the appellant has shown that any injustice has arisen from the course adopted by the Magistrate, and he cannot succeed on this ground of appeal.
The appellant’s medical condition and the medical evidence
The appellant has directed several of his grounds of appeal to his medical fitness to conduct the trial and the medical evidence which was presented to the Magistrate.
First, the appellant complains that he has suffered prejudice by the Magistrate “not allowing medical evidence to be heard” on the first day of the trial and allowing the trial to continue following that refusal to hear medical evidence. In fact, the appellant did not have his medical witnesses present at court to give evidence on the first day of the trial, which was a Monday. On Tuesday, the Magistrate granted the appellant an adjournment until Thursday of that week in order that he could arrange for his medical witnesses to be called on the resumption of the hearing. That did occur, and two of the appellant’s treating psychiatrists, Dr Lukacs and Dr Gauvin, gave evidence on that Thursday. The appellant applied for an adjournment for a substantial period of time as he claimed that he was medically unfit to conduct his own defence. He offered the evidence of his psychiatrists in support of the application.
The Magistrate refused the application for a further adjournment, and directed that the trial continue. In doing so, he gave ex tempore reasons in which he examined the evidence of the medical witnesses in some depth. The Magistrate recognised that the appellant’s medical condition placed him at a disadvantage compared to some members of the community in defending a charge against him. However, he pointed out that the psychiatrists distinguished between the appellant’s ability to conduct a short trial involving relatively simple issues, and his ability to conduct a long trial involving much more complex factual issues. While the latter may well have been outside the appellant’s competency, the Magistrate concluded that the former was not. The Magistrate also referred to the suggestion from Dr Gauvin that there may have been some benefit for the appellant in having the matters resolved in a timely fashion, rather than having them lingering around during a long adjournment.
The appellant takes issue with the Magistrate’s assumption, implicit in his ruling on the adjournment, that this was a short trial involving simple issues. One of his grounds of appeal objects to the Magistrate “allowing the trial to be long when he was did [sic] state on the judgment that he made on the 27 Jan 00 the appellant was only fit for a short trial”. The trial occupied four full days: Monday 24, Thursday 27 and Friday 28 January 2000, then Thursday 17 February 2000. The proceedings also occupied part of the day on Tuesday 25 January 2000. In my opinion, it cannot be said that this was not a short trial on simple factual issues. While many trials for summary offences would take a good deal less time than this one, it cannot be said this was a long criminal trial. Nor did it involve complex factual issues – the charges arose out of a single incident which itself was a momentary, simple event. I cannot help but observe, on an examination of the transcript of the trial, that the trial could have been concluded in much less time had it not been for the appellant’s very regular interruptions and digressions into matters of no relevance to the trial. At all events, I do not consider that the Magistrate’s decision to refuse the adjournment, made partly on the basis that the appellant was able to cope with a short trial, can be brought into doubt on the basis of the length of the trial as it unfolded.
The Magistrate refused the application for an adjournment following a thorough consideration by him of the evidence given by the appellant’s psychiatrists. I cannot see that he erred in exercising his discretion as he did, or that there has been a miscarriage of justice as a result.
Cross-examination of the victim
The appellant claims that the Magistrate erred in terminating the cross-examination of the victim against the objection of the appellant, who wished to continue with the cross-examination. The cross-examination of the victim initially proceeded in an orderly fashion. The appellant asked the victim about his movements on the day of the offence. He cross-examined him on matters of identification and the layout of the arcade. There was also some questioning about the preparation of the victim’s statement. After all of these topics had been canvassed, the appellant proceeded to become both abusive to the victim, and to seek to question him repeatedly on matters on which the victim had already given evidence. The Magistrate warned the appellant several times that he would terminate the cross-examination if this abusive badgering continued, and if the appellant refused to move on to another topic in his cross-examination. After persistent refusal by the appellant to accede to the Magistrate’s requests in this regard, the cross-examination was terminated, and the victim released.
The Magistrate undoubtedly had a power to control the proceedings before him, which extends to controlling the flow of witnesses, the course of the evidence and the manner in which it is given. It is an unusual event for a judicial officer to order an end to a party’s cross-examination of a witness. It is a step to be reserved for extreme circumstances, especially where the witness is the victim in a criminal proceeding. However, I have come to the view that this was one of those exceptional occasions when the Magistrate was justified in exercising his power to bring the cross-examination to an end. This is particularly so given the Magistrate’s repeated warnings to the appellant to restrain himself in his abuse of the witness, the appellant’s transgression into irrelevant matters and his refusal to move onto another relevant topic.
Tape recording of police interview with the appellant
The appellant objected to the manner in which a tape recording was obtained of questions asked of him by the police and of his answers on an unrelated matter. He claimed that the evidence was illegally obtained. It is not necessary to consider whether or not there was an irregularity in the recording.
In his opening, the police prosecutor made it quite clear that he would not be relying on the tape or indeed on any aspect of the interview. The tape, together with the police officer’s notebook, were nevertheless produced to the Court and made available to the appellant. It was the appellant who insisted on tendering the tape. However, no reliance was placed on it either by the prosecution or by the Magistrate. There is no substance in this ground of appeal.
Acting on extraneous evidence
One paragraph of the appellant’s grounds of appeal is that the Magistrate relied on facts of which evidence was not given in court, and which could only have come from outside sources. The appellant was unable to identify the material relied on to support this ground. Having read the Magistrate’s reasons for decision and the transcript, I am satisfied that the Magistrate relied only on the evidence that was led before him.
Conversation between the Magistrate and a WorkCover employee
The appellant began by asking a witness he had called about the presence of a person sitting in the gallery of the Court and why he might be there. The Magistrate considered the questioning to be irrelevant, and declined a request by the appellant to have the person removed from the gallery. The following exchange then occurred:
“DEFENDANT: Can we find out who he is and what he’s here for.
HIS HONOUR: He’s told me who he is.
DEFENDANT: No, he didn’t, he didn’t say who he was, he didn’t say what he was here for.
HIS HONOUR: I inquired earlier this morning.
DEFENDANT: You did?
HIS HONOUR: Yes.
DEFENDANT: So he’s here for this matter.
HIS HONOUR: He’s here to watch it, he’s entitled to as a member of the public.
DEFENDANT: So you know this man.
HIS HONOUR: I don’t know him. He’s identified himself by name and informed me that he has a connection with the WorkCover organisation.
DEFENDANT: So I’m right to say that this is a WorkCover issue?
HIS HONOUR: I don’t know what it is, but he’s entitled to be in the courtroom, it’s an open court. Will you kindly get on with your examination on relevant matters.”
There followed a further discussion in which the Magistrate again refused to require the person to leave.
As I understood it the thrust of the appellant’s argument was that the trial had miscarried because of an acknowledgment by the Magistrate that he had spoken to the person concerned before the resumption of the appellant’s case that morning.
The Magistrate addressed a letter to the presiding Judge of this Court after the present appeal had been instituted. I received that letter as a report from the Magistrate pursuant to r 97.14 of the Supreme Court Rules. In the letter the Magistrate says, in relation to this allegation: “I had no conversation with any employee of WorkCover on 17 Feb 2000 or at any other time in relation to this trial”, and he referred to the evidence containing the passage I have just quoted.
The Magistrate does not deny a conversation with a person who was sitting in the Court or that the person identified himself as having a connection with the WorkCover organisation. I have no reason to doubt the Magistrate’s assertion that he had no conversation with the person concerned in relation to the trial. It seems that the conversation went no further than was acknowledged by the Magistrate as recorded in the transcript. That being the case, there is no substance in the ground of appeal. It is not unusual, neither is there any sinister implication to be drawn from the fact, that a judicial officer might be told as a matter of courtesy that a particular person or a person from a particular organisation intends to exercise his right to sit in the public gallery to observe the course of a case.
Media publicity about the case
One of the grounds of appeal is that the Magistrate prejudiced the appellant by releasing facts to “The Advertiser” on 24 January 2000, stating that the appellant had assaulted a barrister.
It is not surprising that the opening and evidence led on 24 January might have attracted some media attention. Subject to certain well known prohibitions on the publication of evidence in certain circumstances, media organisations are entitled to publish an accurate report of proceedings in all courts. However, there is no evidence that the Magistrate or any court official released any information to the media about the case. In the letter from the Magistrate to which I have already referred the Magistrate says: “Neither I nor my Clerk at any time has released information to or communicated with ‘The Advertiser’ newspaper, with respect to this trial.” I accept that statement. There is no evidence to suggest otherwise.
If, in reality, the appellant is suggesting that there was some miscarriage of justice by virtue of the media coverage attending his case, then such ground has not been made out. It was a fact that one witness did an in court identification of the appellant as being the person involved in the incident he witnessed. It is possible that the identification might have been influenced by a recent picture of the appellant in the newspaper. However, identity was not an issue in the proceedings. The appellant’s case was that Mr Rice had assaulted him earlier that day at another location. That had been followed by a verbal exchange at the location of the alleged assault. The issue was what took place on that occasion, not whether the appellant was there.
There is no evidence of any miscarriage of justice caused by media publicity.
Failure properly to inform the appellant of his rights
The relevant ground of appeal alleges that the appellant was not informed by the Magistrate of the penalty which could be imposed for the offence. In argument, however, his allegations were wider than that. He claimed that the Magistrate had not advised him about the law of self‑defence and that he had been denied the right to ask questions on that issue. Other alleged shortcomings of the Magistrate are covered by other specific grounds of the appeal to which I have referred. As I said in Moore-McQuillan v Police (1998) 196 LSJS 488 at 496 - 497:
“[A] magistrate... must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party’s attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.”
I repeated an observation of Wells J in Cooling v Steel (1971) 2 SASR 249 at 251:
“In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”
It seems to me that at all time the Magistrate in this case did his utmost to ensure that the appellant was not at a procedural disadvantage. He endeavoured to assist him, for example, by explaining his rights at the close of the prosecution case and of his ability to submit that there was no case to answer, and what was involved in such a submission. The Magistrate gave clear rulings on the various applications made by the appellant particularly in relation to his medical fitness. He was careful to explain to the appellant each step in the proceeding as it occurred. He afforded him opportunity for adjournments where these might be justified. When it came to questions of penalty, the Magistrate informed the appellant of the sorts of issues that were relevant to that question.
The complaint about failure to advise the appellant of the defence of self‑defence is a groundless complaint. As I have said, it is not for the Magistrate to give an unrepresented litigant substantive legal advice, and on the issues as they were presented to the Magistrate, it is difficult to see how any question of self‑defence arose.
It may appear to the appellant that he was cut off on a number of occasions in the course of cross-examining prosecution witnesses, and indeed in leading evidence on his own behalf. However, that was only because, in each case, the evidence sought to be led was not relevant to the issues in the case, and in the case of the victim, the cross-examination was prolix and abusive. By denying the appellant the right to ask certain questions the Magistrate was informing the appellant of the parameters in which the case could properly be conducted. There is no substance in this ground of appeal.
Failure to admit previous transcript
On an earlier occasion, a restraining order had been made against the appellant in the Magistrates Court pursuant to s 99 of the Summary Procedure Act 1921. That order arose out of the same incident. Proceedings to show cause why the order should not be confirmed were adjourned for hearing at the same time as these proceedings.
This ground complains that the transcript of the earlier proceedings was not allowed to be tendered. The appellant argues that if it had been, it would have revealed inconsistencies in the evidence of Mr Rice. However, no inconsistency was suggested in the cross-examination of Mr Rice, and, in any event, there was no attempt by the appellant to tender the earlier transcript. There is no substance in this ground.
Standard of proof
This ground alleges that the Magistrate stated that the facts before him did not have to be proved beyond reasonable doubt. This ground of appeal is not made out. On several occasions in the course of his reasons the Magistrate not only correctly directed himself as to the standard of proof, but specifically stated that he found the relevant facts proved beyond reasonable doubt and that the charge generally had been proved beyond reasonable doubt. There was no misapprehension or misdirection on the part of the Magistrate as to the necessary standard of proof.
Appeal against conviction
As there were no other grounds of appeal against the conviction, and as none of the grounds have been made out, the appeal against conviction is dismissed.
Appeal against sentence
Although the Notice of Appeal also indicates that the appellant was appealing against both conviction and sentence, there were no grounds of appeal stated in relation to sentence, and no submissions were made on the question of sentence. Nevertheless, I have considered the material before the Magistrate and the sentencing remarks made. In my opinion the sentence was within the appropriate range for the circumstances, and the appeal against sentence must be dismissed.
The restraining order
The remaining ground of appeal is as follows:
“The Restraint Order (sic) was only sort (sic) to save on the Magistrate who is now placed at Elizabeth Court house having to come back to the Adelaide Magistrates Court, and these matters were hurried through at (sic) to accommodate this.”
Although it is not entirely clear, I am prepared to treat this as an appeal against the making of the restraining order under s 19A of the Sentencing Act.
An interim restraining order had been made against the appellant in respect of the victim some time after the incident occurred. That was more than 18 months before the hearing of the assault charge in the Magistrates Court. The Magistrate was aware that confirmation proceedings were pending. He merely said that in the interests of Mr Rice’s safety and privacy, and with a view to avoiding the duplication of evidence and proceedings, he intended to make a restraining order under s 19A of the Sentencing Act “as part of the penalty”. That itself was a misapprehension, because s 19A specifically provides in subs (2)(b) that an order under that section is not a sentence for the purpose of that Act. He went on to make the order in substantially the same terms as the interim order. It was the Magistrate’s understanding that if he made such an order, the prosecution would withdraw the part-heard restraining order proceedings. I have not been informed whether that has occurred.
The order was not asked for in the course of sentencing submissions. That fact in itself does not vitiate the making of the order. However, no submissions were made as to the need for it. The appellant was not invited to make any submissions as to whether such an order should be made, and as far as I can see was not even told by the Magistrate that such an order was then in contemplation. There was evidence of aggression and of the victim’s concern for his safety at the time of the assault. That was some 18 months or more before the hearing. There was no evidence of any ongoing concern or apprehension of continued violence towards the victim, or any evidence as to the likelihood of their future contact.
When speaking of an order made under s 99 of the Summary Procedures Act, Duggan J in Moore-McQuillan v Police (1997) 192 LSJS 162 said (at 166):
“The question for the court is not simply whether the appellant has been involved in certain conduct in the past, but whether, on the material before the court, there is a reasonable apprehension that the defendant, unless restrained, will behave in the manner set out in s99(1) and the making of the order is appropriate in all the circumstances. (cf Brunsgard v Daire (1984) 36 SASR 391 at 395).”
As I myself also said in Moore-McQuillan v Police (1998) 196 LSJS 488 at 498:
“In considering whether or not to confirm the restraining order under s99 of the Summary Procedure Act 1921, a magistrate is required to consider if there is ‘a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner’, and a court must be satisfied that the making of the order is appropriate in the circumstances. It is essentially an order preventing the defendant from engaging in future conduct of the prescribed type. It will obviously be relevant to the exercise of the court’s discretion as to whether or not to grant an order, and in what terms, to inquire as to what has been the cause of the allegedly offensive conduct and to make some inquiry as to the likelihood of its recurrence. These are all matters which need to be weighed up by the magistrate. If the offensive conduct is not likely to arise again, or there is no reason for the antagonistic parties to make contact, that will be a relevant but not necessarily decisive factor in determining whether an order should be made.”
The observations in those cases are equally applicable to s 19A of the Sentencing Act.
In some cases, the circumstances of an assault and the relationship of the parties will be sufficient to infer an apprehension of ongoing violence in order to justify the making or confirmation of an order. In this case, the parties were relative strangers, although they had previously encountered each other in the course of legal proceedings. There was no suggestion that the assault would ever be repeated or that any future contact was likely, particularly after some 18 months. Besides, the Magistrate had just offered, by way of a suspended sentence and good behaviour bond, a powerful inducement to be of good behaviour generally, at least for a further period of 18 months.
In my opinion, the Magistrate failed to address the issues relevant to the making or continuation of a restraining order. There was no justification for making the order in the circumstances as they presented themselves to the Magistrate. Furthermore, there was no justification for doing so without warning to the appellant that the Magistrate was contemplating making the order. If there was no justification for the restraining order, there was likewise no justification for the firearms order. The restraining order and the firearms order are set aside.
12
1
0