Moore-McQuillan v Police No. Scciv-02-321

MOORE-MCQUILLAN v POLICE
[2002] SASC 324
Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged with common assault, it being alleged that he assaulted a man, whom I shall refer to as “D”, in a lift in the Sir Samuel Way Building, Victoria Square, Adelaide on 15^th August 2000 by punching him in the face.
He denied the charge and after a trial was found guilty and convicted by a learned Magistrate on 22^nd February 2002. He appealed against the conviction. I dismissed the appeal and intimated that I would give reasons later.
D was, at the relevant time, a partner in a legal firm. He acted for WorkCover Corporation of South Australia with respect to a claim made by the appellant for benefits under the Workers Rehabilitation and Compensation Act 1986. Proceedings relating to that claim have a long history and have involved many court appearances attended by the appellant and D. It is fair to say that the appellant has a poor regard for D.
At about 9.40 am on 15^th August 2000, D went to the fifth floor of the Sir Samuel Way Building to appear before a Master of the District Court in a matter unrelated to the appellant. The matter did not proceed and D left the area of the courtroom in which it was to be heard and went to the lifts on that floor. He spoke to a Mr Rice, a barrister, about an earlier hearing involving the appellant who, at that time, emerged from a lift on his way to an unrelated appearance in court. He returned and began to question D about a matter involving him and WorkCover. Mr Rice left the vicinity. D approached the lifts. After pressing the button to descend, he entered one of the lifts, as did the appellant who continued to question him. There were no other persons in the lift. D ignored the questions.
It was the prosecution case that the discussion in the lift became heated and the appellant punched D with a single blow to the upper lip which caused a small cut and some bleeding. D left the lift and spoke to a Sheriff’s Officer, Mr Timms, near the entrance of the building at ground level. The injury was seen and the police were called.
D went to a toilet to attend to the injury. He did not wait for the police and returned to his office.
The appellant’s case was that he entered the lift at the invitation of D. They proceeded to ground level. They discussed an offer which had been made to settle the claim against WorkCover. According to the appellant, D approached him, pushed him up against a wall of the lift, took his penis out of his trousers and said words to the effect, “This is your offer”. He pushed D away and pushed all of the buttons in the lift so as to leave as soon as possible. Upon reaching the ground floor, D rushed out of the lift first, having earlier returned his penis to his trousers and adjusted his clothing. The appellant then returned to the lift and went to the court at which he was to appear. He was interviewed by the police a short time later. He did not say anything to the police about D having exposed himself. He told the learned Magistrate that he was too shocked to do so and also because there was no need because he believed that there was a video recording of what had occurred in the lift. In fact, there was no such facility in place.
It was the appellant’s case that D was personally conducting a vendetta or crusade against him. He had been involved in matters concerning WorkCover since 1990 and asserted that he had been badly treated by the Corporation. The learned Magistrate found that D did not conduct a vendetta against the appellant and that he acted in accordance with his client’s instructions.
I do not regard it as necessary to set out the lengthy history of the proceedings involving the appellant and WorkCover. It is sufficient to say that he told the learned Magistrate that he had some 250 current actions against WorkCover.
It is appropriate to briefly summarise the evidence before the learned Magistrate. D’s evidence accords with the brief summary of the prosecution case which I have mentioned. In addition he told the learned Magistrate that the appellant was abusive to him on a number of previous occasions. On the morning in question he had a file and a copy of the large legal book, Lunn’s Civil Procedure, with him when he was in the lift with the appellant. He carried them in his right hand.
As the appellant entered the lift, he asked D why he had not returned his telephone calls. He was agitated and a little upset and annoyed. After the doors of the lift closed, D told the appellant that he would not take telephone calls from him following an incident at the Worker’s Compensation Tribunal which I need not now mention. He said he was facing the front of the lift and leaning on the western side of the lift with his file and the legal book in his right hand. The appellant was leaning against the eastern wall of the lift. As the lift descended the appellant struck the blow to D’s face. D said that he saw a gold ring with a Roman head. He felt blood on his lip. The appellant pushed all of the buttons on the lift and said words to the effect, “He’s going to hit me”.
The evidence of the appellant is as I have summarised his case.
Mr Crawford was employed by the firm responsible for the operation of the lifts. He said that it took some 17 to 18 seconds to travel from the fifth floor to the entry level of the building.
Mr Rice told the learned Magistrate that when he saw and spoke to D outside the lifts, D did not have any facial injury and he was not bleeding from the face. Soon after he saw the appellant and D enter the lift.
Mr Timms is a Sheriff’s Officer and at the time D and the appellant left the lift he was working at the security station on the entry level of the building adjacent to the lifts. He told the learned Magistrate that he saw the two men. D was holding a handkerchief to his face and blood appeared to be going down the front of his face and nose or mouth or both on to his chest. D called out “he hit me” and pointed at the appellant.
Constable Thiele and Constable Doecke went to the Sir Samuel Way Building and spoke to the appellant. He told the police that D had invited him into the lift and upon doing so there was conversation between them about D not returning telephone calls made by the appellant. The detail of that alleged conversation is of no consequence for present purposes. He denied assaulting D and said that D had assaulted him by pushing him. He said that D had invited him into the lift. There was conversation and D pushed him and he pushed D away by pushing him in the chest. The appellant said that he said to D, “That’s assault” and he tried to push every button in the lift to try and get out of the lift. He said to D, “Don’t you ever assault me again” and he told the police that when the lift stopped and D left, D called out, “This man’s assaulted me”. The appellant said that he went to a Sheriff’s Officer and said, “I’ve been assaulted”. D turned around and he saw blood on his lip. The appellant told the police that he did not see blood on D’s lip when in the lift. He acknowledged that there was no‑one else in the lift.
At no time did the appellant tell the police that D had exposed himself.
The two police officers then went to D’s office where they saw and spoke to him. They did not take a statement from him as he said that he was preparing his own statement.
Constable Thiele said that when he saw D he noticed that he had a “fattened” lower lip which D pointed out to him. He did not see any other injury. He told the learned Magistrate that he did not recall seeing a cut. He noticed that D was a little distressed. He said the injury was not consistent with a cold sore. During the trial there had been some suggestion by the appellant in cross-examination of Mr Timms that the bleeding could have come from a cold sore. Mr Timms only saw a handkerchief held to the mouth and bleeding.
Constable Doecke told the learned Magistrate that he could not recall if D had any facial injury when he saw him in his office.
When the appellant gave evidence, he told the learned Magistrate that he did not possess, and was not wearing, a ring as described by D. He produced three rings which were admitted into evidence. He called two witnesses, Deborah Agaciak and Richard Trinne, who supported that evidence.
Perusal of the transcript of his evidence establishes conclusively that the appellant has strong feelings of antipathy towards D which he has harboured over some years during which D has acted for WorkCover against him. There is no useful purpose in setting out all of this evidence which leads to this clear conclusion.
In evidence the appellant said that the conversation about D not returning telephone calls occurred outside the lift. It is clear from his evidence that he was insistent and required answers from D. The appellant said that he could not remember what D was carrying but he was carrying something which was probably a black bag and possibly the legal book Lunn on Civil Procedure. He said that when he again asked about an offer to settle his claim, D was in something like a rage. He was furious. He then told the story about D exposing himself. His evidence-in-chief about this incident is lengthy. He described D’s alleged conduct in detail.
He said that he looked at D’s face but there was no mark on his lip. He described the manner in which D left the lift at the entry level of the building as “bolting past me”. He told the learned Magistrate that D then went straight to the Sheriff’s Officer, who the learned Magistrate heard was Mr Timms, and said that he had been assaulted. The appellant told the learned Magistrate that after D had spoken to Mr Timms, he turned around. His teeth were clenched and he saw signs of “reddening” in his bottom teeth when he was talking through clenched teeth.
The following circumstances were clearly established. When D and Mr Rice were talking on the fifth floor and immediately before D and the appellant entered the lift, D did not have any injury to his face, including the lip. There was no-one else in the lift apart from D and the appellant. When D left the lift, he was bleeding from the vicinity of the mouth sufficient to require the use of a handkerchief. He immediately told Mr Timms that he had been assaulted. Constable Thiele saw signs of an injury when he saw D at his office. Constable Doecke could not recall if he noticed anything about D’s face or lip. The appellant had strong feelings of antipathy towards D.
These circumstances suggest very strongly that D suffered an injury to his lip whilst in the lift with the appellant. There is no suggestion that the injury was, or could have been, caused accidentally.
The learned Magistrate reached the following conclusion:
“The proposition that [D] would expose himself at all, let alone in the lift in 17 to 18 seconds, when the lift doors could have opened at any level earlier than entry, is entirely incredible. In addition, it was not in dispute that he had a file and perhaps also a copy of Lunn in his right hand. The suggestion that he would be able to push Mr Moore-McQuillan up against the wall of the lift with his free hand, and whilst still carrying his file and book in his other hand, take out his penis, make the comment, replace the penis, re-order his clothing and then cause himself an injury which then bled all within the same limited time period is completely unbelievable. Furthermore, Mr Moore-McQuillan is a bigger man than [D] and this alone, taken together with [D’s] knowledge of the [appellant’s] characteristic to become very angry, very quickly, make the suggested version highly unlikely. Having observed Mr Moore-McQuillan’s behaviour in the course of the court hearing, I can readily accept that on the occasion in question, he was overcome by an angry outburst.”
It is clear that the learned Magistrate had seen and heard the witnesses, accepted the evidence of D as to what happened in the lift and rejected the evidence of the appellant. In my view, her conclusions accord with common sense. The story told by the appellant is preposterous, in my view, for the reasons given by the learned Magistrate.
As the appellant was charged with common assault, it was unnecessary for the prosecution to prove that D suffered an injury but the presence of the injury was compelling evidence that an assault occurred in the lift as alleged by D.
There are two further matters which provide strong evidence against the appellant. The first is that he made no allegations when questioned by the police shortly after the incident that D had exposed his penis. If such an event occurred, it is inconceivable that the appellant would not have said so. His explanation is that he did not tell the police of the incident because he believed that it would have been captured on a video recording operating in the lift. I find that explanation totally unsatisfactory. What is much more likely, in my view, is that the appellant did not know if there was video surveillance of the lifts and when he learned that there was no such surveillance, he invented the false story of indecent exposure.
The second matter is that when D left the lift, he immediately told Mr Timms that he had been assaulted by the appellant. The appellant heard that complaint but merely turned and re-entered the lift. He said nothing.
The learned Magistrate acknowledged that there were some inconsistencies between the evidence of various witnesses called by the prosecution. These inconsistencies do not relate to the allegations which are the foundation of the charge, namely the circumstances which I have mentioned. Correctly she did not regard these inconsistencies as of any significance. I do not propose to mention them. The learned Magistrate was clearly correct in her approach to them. I merely make the additional observation that minor inconsistencies are common in the telling and recalling of events which occurred over a year ago and are often indicative of honesty and credibility.
There are 22 grounds of appeal. Some of them are entirely misconceived, such as the first ground which complains that the learned Magistrate erred in law by not calling a witness, Mr Beck, a Sheriff’s Officer, whom he alleged was present when the police officers questioned the appellant. Of course, it was not for the learned Magistrate to call any witnesses.
As the appellant was not represented, I adjourned the hearing of the appeal so that I could be informed of what Mr Beck could say about the matter. A statement made by him was produced and Mr Hinton agreed to call him on the further hearing of the appeal.
He said that he knew the appellant. At about 9.45 am on 15^th August, he was on duty at the Sir Samuel Way Building. He went to the entry level and he saw D who is now known to him. He noticed that D had a small amount of blood on his lips and he appeared a little shaken. He confirmed that there was no video surveillance of the interior of the lifts. Mr Beck was cross-examined at length by the appellant, mostly about matters which are not relevant to any issue on this appeal. I allowed such cross-examination on the assurance that the cross-examination was relevant to the credit of Mr Beck in order to see if any relevant matters were raised. The cross-examination merely confirmed my view that Mr Beck was a reliable, accurate and truthful witness. His evidence was merely some corroboration of D having suffered an injury. Mr Beck could not have given any evidence which could have caused the learned Magistrate to reach any different conclusion about any matter in issue.
Other grounds of appeal make the complaint that the learned Magistrate should not have accepted the evidence of various witnesses about certain matters. He complains about many other matters of fact which were not accepted by the learned Magistrate. These complaints are not about matters of substance and even if substantial, could not have any impact on the reasoning of the learned Magistrate.
The appellant also complained that another Sheriff’s Officer, said to have been on duty at the entry level of the Sir Samuel Way Building at relevant times, was not called by the learned Magistrate. A signed statement from Mr Castwell, a Sheriff’s Officer fitting that description, was provided by Mr Hinton in which he stated that he did not have any dealings with the appellant or D as he was busy with other duties at the time.
There are grounds of appeal that the learned Magistrate erred in accepting evidence of D and Mr Rice about various matters but they are without merit. They focus upon matters of minor and irrelevant detail and are of no consequence. The evidence of these witnesses as to matters in issue was accepted by the learned Magistrate and there was no error in her doing so.
It was the appellant’s case that he had been subjected to stalking and surveillance over a period of time which was contrary to s 19AA of the Criminal Law Consolidation Act 1935 and that D was responsible for arranging such activities over a period of two years. The appellant complained that the learned Magistrate turned a blind eye to these matters and in finding his evidence to be incredible exercised prejudice and bias towards him.
There was no evidence of any offence having been committed by D. Perusal of the transcript reveals that the learned Magistrate displayed considerable patience and forbearance to the appellant during the trial and assisted him to bring out the matters which he considered relevant.
The events in issue at the trial occupied a very small period of time and fell into a narrow compass and yet the transcript is comprised of 905 pages. It is plain that the learned Magistrate tolerated much irrelevance and false assertion by the appellant in order to do justice to him and to allow him every opportunity as an unrepresented person to defend himself and present his case. It is equally plain that the appellant took advantage of the considerable latitude afforded to him to canvass matters irrelevant to the proceedings but important to him and to make a personal attack of D. There is simply no justification for this ground of appeal. The learned Magistrate conducted the trial and reached her conclusions with every consideration of the interests of the appellant.
The next ground of appeal which I mention reveals something of the attitude of the appellant. He asserted that the legal community in South Australia is small and that D could, or did, discuss the case with the learned Magistrate “directly or indirectly and achieve a guilty decision”. He referred to some reasons for this outrageous assertion, each of which is specious. He also made allegations in another ground of appeal that a lawyer in the firm of which D is a member is married to a lawyer employed by the Director of Public Prosecutions and that by reason of such a connection pressure was brought to bear upon the Director, or some other unspecified person, to have the charge laid against the appellant.
There is simply no factual basis for those assertions which the appellant seems to be able to make with considerable ease and total lack of responsibility. I rejected them out of hand. I expect his attitude is that upon any decision being made against the appellant, the reason is always the fault of others and never his own fault.
The last ground of appeal asserts that the learned Magistrate overlooked facts by not accepting all of the evidence and by “cutting and shutting the evidence to fit”. I rejected that bold and unjustified assertion. In my view, the case against the appellant was overwhelming and the finding of guilt and the convictions were fully justified and, indeed, inevitable.
At the hearing of the appeal, the appellant claimed that he had new evidence which demonstrated that D had given false evidence at the trial and that, in the circumstances, the finding of guilt could not stand. I permitted him to give evidence.
He said that in the early afternoon of 4^th June 2002, he went to D’s house to serve him with a summons in connection with some other legal proceedings. He handed the document to D and noticed his hands. He said that D was wearing the ring which he had told the learned Magistrate had been worn by the appellant when the alleged assault occurred. He said that he asked D about the ring and he replied that he was a winner and the appellant was going to gaol. There was other conversation, including that D said, “I do anything I can to win”. He said D laughed at him as he was leaving the premises and that the following exchange occurred:
“Appellant You have lied and misrepresented the truth.
DIt doesn’t matter, winners do what they have to do to win and you’re not a winner.”

In cross-examination he said that he has no feelings against D and never has had any feelings about him. He said he found him to be repulsive and he then went on to mention matters which indicate that he does have feelings adverse to him.
Mr Hinton did not call D, or any other witness, in relation to those allegations.
At the trial there was considerable attention given to this ring by the appellant. In my view, it is a matter of almost no significance. It is not suggested that D punched the appellant with a fist wearing this or any other ring. What is suggested is that D said that the appellant was wearing such a ring when he punched him.
I did not accept the evidence of the appellant about this incident. I simply did not regard him as a witness of truth. I concluded that he will say almost anything if he believes it will assist his case. I rejected this evidence.
For these reasons, I dismissed the appeal.

[2002] SASC 324

25 October 2002