R v Moore-McQuillan

[2014] SASCFC 113

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MOORE-MCQUILLAN

[2014] SASCFC 113

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Nicholson)

30 October 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW

Appeal against convictions for aggravated threatening to cause harm. 

The appellant was involved in various proceedings in the Workers Compensation Tribunal.  During the course of a hearing on 14 October 2011 he made remarks in respect of which he was prosecuted for aggravated threatening harm against the presiding judicial officer, Olsson Au J (count 2) and counsel for the WorkCover Corporation, Dr Salu (counts 1 and 3).  The target of the count 3 remarks was disputed at trial and each of the witnesses who had been present at the hearing had different perceptions as to whom various parts of the remarks were directed.  The appellant’s case was that they were directed to only Mr Bruun, Salu’s instructing solicitor, whereas the prosecution case was that part way through the remarks the appellant ceased directing them to Bruun and commenced directing them to Salu.  After a trial in the District Court the appellant was acquitted of count 2 but convicted of counts 1 and 3.  He now appeals and seeks permission to appeal against each of those convictions. 

Held (per the Court):

1.  The verdict of guilty on count 3 was unreasonable.  On the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the relevant remarks were directed to Dr Salu rather than to Mr Bruun. [26]-[34]

2.  The verdict of guilty in relation to count 3 is set aside and a verdict and judgment of acquittal is substituted in its place. [35]

3.  No ground of appeal is established in relation to count 1.  The conviction of the appellant is supported by the evidence and there is no doubt as to his guilt of that charge. [73]

Criminal Law Consolidation Act 1935 ss 15A, 19(2), referred to.
M v The Queen (1994) 181 CLR 487; R v Leece (1995) 78 A Crim R 531, applied.
Barton v Armstrong [1969] 2 NSWR 451; Blake v Barnard (1840) 9 C&P 626; Bunning v Cross (1978) 141 CLR 54; Longden v The Director of Public Prosecutions [1976] Crim LR 121; Police v Greaves [1964] NZLR 295; Rozsa v Samuels (1969) SASR 205; The Queen v O (Unreported, SASC, Bleby J, 19 June 1997); Tuberville v Savage (1669) 86 ER 684, discussed.
Carter v R (1994) 176 LSJS 112; SA Police v Bednarz (Unreported, SASC, Debelle J, 7 February 1995), considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"threat", "conditional threat", "judicial officer", "unreasonable or insupportable"

R v MOORE-MCQUILLAN
[2014] SASCFC 113

Court of Criminal Appeal:  Peek, Blue and Nicholson JJ

1. THE COURT.       The appellant was charged with three counts of threatening to cause harm, contrary to s 19(2), Criminal Law Consolidation Act 1935 (SA) which provides as follows:

   19—Unlawful threats

   …

   (2)     A person who—

   (a)     threatens, without lawful excuse, to cause harm to another; and

   (b)     intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,

   is guilty of an offence.

2. The threats alleged were made by the appellant on 14 October 2011 in hearing room 8 at the Workers Compensation Tribunal during the course of a hearing before Auxiliary Justice Olsson (Olsson Au J) in WorkCover proceedings.  Both Dr Peter Salu (Salu), who had been briefed by the WorkCover Corporation, and the appellant, who was unrepresented, were at the bar table.  It was alleged that the appellant threatened to cause harm to Salu on two occasions (counts 1 and 3) and that he threatened to cause harm to Olsson Au J on one occasion (count 2).

3. The appellant was convicted by a jury on counts 1 and 3 and acquitted of count 2.

4. Count 1 relied upon the words in italics in the following remarks addressed generally to Olsson Au J (the count 1 remarks) as the threat:

   MR MOORE-McQUILLAN:   Hold it.  Hold it.  We’ve still got fucking things to fix before he can get up.  And if he gets up I will fucking stand on my feet and will knock him down.  Now, you’ve got your choice.  It’s as simple as that.  This is something that I have to do first to correct the errors before this fuckwit gets in here.                      (Emphasis added)

5. Count 3 relied upon words in the last two or three lines[1] of the following remarks (the count 3 remarks) as the threat:

   MR MOORE-McQUILLAN:   And if you don’t want to turn up again, little fellow, fucking feel free not to come, because you’re a fuckwit.  And if you can’t handle it, go away and if you want me to come around to your place, I will.  The same as what you used to do to me, and Zulu knows that, because he fucking organised people to come around as well, and don’t forget - I know where you live as well.  Don’t forget that.  And if you don’t think I don’t - you know where I live.  I know where you live.[2]

   [1]    The precise words relied upon in those last three lines varied during the course of the trial.

   [2]    The appellant habitually pronounces Salu’s surname as “Zulu” but it is common ground that he was referring to Salu when he said “Zulu knows that”.

   The context of the remarks made by the appellant on 14 October 2011

6. As at October 2011, the appellant had been bringing various claims against WorkCover in the Workers Compensation Tribunal for more than a decade.  The firm of solicitors, Lawson Downs (later known as Lawson Smith), had long acted for WorkCover in some of those claims.

7. Two of the appellant’s claims had proceeded to trial in 2000 and 2001.  Mr Downs appeared as principal counsel for WorkCover at those two trials, with Salu appearing with him as junior counsel and conducting the final address at one of them in the absence of Mr Downs.  Salu worked as a solicitor at Lawson Downs until 2001 when he went to work for a different firm, Gun & Davey.

8. In connection with one or other of the appellant’s two claims in respect of which Salu was junior counsel, either Lawson Downs or WorkCover engaged a private investigator, Mr Rorie, to conduct surveillance of the appellant.  Before October 2011, the appellant had accused Salu of being involved in the engagement of Rorie and complained about it.

9. In 2007, Salu left Gun & Davey and became a barrister at Carrington Chambers.  In October 2010, Salu was briefed by Lawson Smith to take over from Mr Downs as counsel for WorkCover in the long-running trial of various claims by the appellant against WorkCover before Olsson Au J which had commenced in 2003.  Salu had no involvement in the appellant’s claims against WorkCover between 2001 and 2010.

10. On 14 October 2011, in the final stages of the long-running trial, there was a relatively short hearing in hearing room 8 at the Workers Compensation Tribunal.  During the hearing, the appellant became emotional and directed abuse primarily towards Olsson Au J.  It was during this period that the appellant made the count 1 remarks and also the remarks that constituted count 2 (of which he was acquitted).  The Judge adjourned the court.  The appellant at this time was purple-faced and enraged.  He directed final abuse to the Judge as he was leaving the bench, shouting loudly at him:

    I wish you’d have a heart attack between now and then and then we can have fucking justice done once and for all.

11. There was then silence before any further words were spoken.  Present in the courtroom at that point were Mr Wilton (the Judge’s associate who was behind the associate’s table), the appellant (on the left-hand side of the bar table), Salu (on the right-hand side of the bar table), Mr Bruun (the instructing solicitor for WorkCover who was standing next to Salu) and the court recorder, Mr Medhurst.

12. The appellant then made the count 3 remarks.  He started speaking relatively softly and it is common ground that, at least initially, he was directing his remarks to Bruun.  However there was a major issue at trial, and on appeal, as to whether, during the course of the appellant’s count 3 remarks, he ceased directing them to Bruun and commenced directing them instead to Salu (as was the prosecution case).

13. After the appellant had finished making the count 3 remarks, he left the courtroom and the following exchange occurred between Salu and Medhurst:

    SALU:               Mr Recorder that last exchange.  Is that still, is the tape still running?

    RECORDER:      Yes.

    SALU:Can you make sure that you type up until the clip clop of him leaving the court room, please.

    RECORDER:      Type up to this?

    SALU:Yeah, I would be grateful if you could, because it may be required.  Okay?  Yes.  Thank you sir.  Excellent.  Okay.  Let’s go.  Yeah.  I just wanted the threat against Bruun to be recorded because it’s, you don’t need that shit.  I know.  I know.  That was, that was contempt.  That’s just straight out contempt.  I don’t see how it’s not a contempt.

    Count 3 – to whom was a threat addressed?

14. The prosecution case on count 3 as opened to the jury was that the appellant initially directed the count 3 remarks at Bruun but directed the following concluding words at Salu:

    [D]on’t forget that, and if you don’t think I don’t, you know where I live, I know where you live.

15. The defence case on count 3 (and the sworn evidence of the appellant) had two aspects.  The first aspect was the contention that the count 3 remarks did not amount to a threat at all.  For present purposes, we will assume, without deciding, that the appellant’s words in the last three lines of the count 3 remarks, extracted at paragraph [5] above namely the passage commencing “I know where you live”, did, in their context, amount to a threat.[3]

    [3]    In particular circumstances, such words may suggest a declaration of hostile intent and an ability to attend at a person’s house to do harm.  It is unnecessary to pursue the matter here.

16. The second aspect of the defence case was the contention that the appellant directed the whole of the count 3 remarks at Bruun and that no part was directed at Salu.  As to this second aspect, the prosecution accepted at trial, and accepts on appeal, that it bore the onus of proving beyond reasonable doubt that the threat relied upon was directed at Salu and that the appellant was entitled to be acquitted if there was a reasonable doubt as to whether a threat was made to Salu or only to another person (Bruun).

17. An appeal on the ground that the verdict was unreasonable or cannot be supported having regard to the evidence is to be determined by reference to the precepts in M v The Queen.[4]Here the question is whether it was open to the jury to be satisfied beyond reasonable doubt that the threat was directed at Salu as opposed to Bruun. 

    [4] (1994) 181 CLR 487.

    The evidence

18. The prosecution tendered the computer which made, stored, and could play back the audio recording of the court hearing on 14 October 2011, and of the discussions in the courtroom immediately after the hearing referred to above, together with the transcript produced there from.  The prosecution called Wilton, Salu and Bruun as witnesses to the events that occurred immediately after Olsson Au J adjourned but they each had a different impression of the count 3 remarks.

    Mr Wilton’s evidence

19. Wilton gave evidence that at the time he formed, and still retained, the impression that the appellant directed all of the count 3 remarks to one person, namely Bruun.  He gave evidence that he was watching the appellant when he made the remarks.  He gave the following evidence-in-chief:

    QDid you see who those further remarks were directed towards, in other words did you see where Mr Moore-McQuillan was facing when he made those further remarks?

    A     They were directed to the instructing solicitor, James Bruun.

    Q     Where was Salu at that time?

    A     He was still at the bar table.

    Mr Bruun’s evidence

20. Bruun gave evidence that, as the Judge left the courtroom, Salu and he were both standing and that he moved forward to the bar table and was standing there next to Salu when the appellant made the remarks while looking in their general direction.

21. Bruun gave evidence that his initial memory was that the whole of the count 3 remarks were addressed to the same person, and he had believed that that person was Salu, but, after listening to the audio recording of the remarks two weeks before giving evidence, he realised that when the appellant referred to “little fellow” and “if you want me to come around to your place, I will”, the appellant had been directing his remarks to Bruun himself up to the words “come around as well” and that only the last 30 words were directed to Salu.  It is apparent from Bruun’s evidence that his belief from time to time as to the person at whom the remarks were directed has not been based on who he saw the appellant looking at because his evidence was that the appellant was looking generally in the direction of both Salu and himself and not specifically at one or the other.

    Dr Salu’s evidence

22. Salu gave evidence that the appellant was facing Bruun and himself when he made the count 3 remarks.  He said that the first five and a half lines of those remarks were directed at Bruun and then the concluding 17 words were directed at himself, namely “and if you don’t think I don’t, you know where I live, I know where you live”.

    Consideration

23. The appellant gave evidence that the whole of the count 3 remarks were directed at Bruun, but in considering whether it was open to the jury on the whole of the evidence to convict the appellant on count 3, it is convenient in this case to put aside the appellant’s evidence and consider only the evidence adduced by the prosecution.

24. Proceeding in that fashion, and accepting the premise of the prosecution case that each of the three witnesses Wilton, Salu and Bruun, were honest witnesses doing their best to assist the jury, this Court is in almost as good a position as the jury to assess the evidence of those three witnesses.  This Court is in the same position as the jury in relation to listening to the audio recording.

    The audio recording

25. In order to address the plain meaning of the appellant’s words in their context it is convenient to set out again the count 3 remarks in full:

    And if you don’t want to turn up again little fellow fucking feel free not to come because you’re a fuckwit and if you can’t handle it, go away and if you want me to come around to your place, I will, the same as what you used to do to me, and Zulu knows that, because he fucking organised people to come around as well, and don’t forget I know where you live as well, don’t forget that, and if you don’t think I don’t, you know where I live, I know where you live.   (Emphasis added)

26. The reference in the third to fourth lines to “Zulu knows that because he fucking organised people to come around as well” was a clear reference to earlier allegations made by the appellant that Salu had been involved in Rorie’s surveillance of the appellant.  The words, syntax and content of that reference to Salu combine to show unequivocally that, at that point, the appellant’s reference to “you” was to Bruun and not to Salu.  The “offer” made by the appellant in the second to third lines “if you want me to come around to your place, I will” was unequivocally made to Bruun and referred to Bruun’s place.

27. It follows that the appellant’s statement in the fourth line “don’t forget I know where you live” was referring to Bruun’s place and to the offer made in the second to third lines to come around to Bruun’s place.

28. It then similarly follows that the appellant’s statement in the fifth to sixth lines “if you don’t think I don’t, you know where I live, I know where you live” is also referring to Bruun’s place and again to the offer that had been made in the second to third lines to come around to Bruun’s place; it is merely a reiteration of the appellant’s statement in the fourth to fifth lines that he knew where Bruun lived.

29. Thus an objective analysis of the appellant’s words strongly suggests that they were directed at the same person throughout.  It was Wilton’s perception that all of the appellant’s words were directed at the same person and this was also Bruun’s perception at the time.

30. Each of Bruun and Salu said that the appellant was looking in the general direction of both of them when he was making the count 3 remarks.

31. Each of Wilton, Bruun and Salu formed a perception as to whom the appellant’s words were directed (which was different again to the prosecution case as opened).  The fact that they each formed a different perception, including Bruun having different perceptions at different times, throws doubt upon the reliability of any one witness’s perception as a basis for a finding beyond reasonable doubt as to whom the appellant’s words were directed.

32. We consider that on the objective evidence of the audio recording of the count 3 remarks and the evidence given by the three prosecution witnesses, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant’s words were directed to two different persons to the exclusion of the possibility that they were all directed toward Bruun.

33. We address two subsidiary matters briefly.  We reject the contention of the prosecution that the appellant’s evidence in cross-examination that he did not know where Bruun lived indicated that he must have been making the statement “I know where you live” to Salu.  First, that contention is inconsistent with the prosecution case that the appellant’s statement in the fourth to fifth lines “and don’t forget I know where you live as well” was directed to Bruun.  Second, the evidence did not establish that the appellant did know where Salu lived either.[5]  Third, the appellant’s words “if you don’t think I don’t, … I know where you live” may well suggest in themselves that the appellant appreciated that the person to whom his words were directed thought that the appellant did not know where he lived.  Fourth, on any view, the appellant was bluffing and he did not in fact go around to anyone’s place.

    [5]    The appellant knew the suburb in which Salu lived but not the address.

34. Finally, we proceed on the basis, favourable to the prosecution, that we do not rely upon Salu’s contemporaneous statement to the court recorder that the threat was made to Bruun because it was open to the jury to disregard that statement on the basis of Salu’s evidence in cross-examination that his concern was for Bruun rather than himself.

35. We conclude that the verdict on count 3 was unreasonable.  Accordingly, we set it aside and substitute a verdict and judgment of acquittal on that count.

    The grounds of appeal relevant to count 1

36. The appellant originally filed a notice of appeal containing eight grounds of appeal and we will refer to these eight grounds as the original grounds of appeal.  On the permission to appeal hearing, David J granted permission to appeal on grounds 1 and 3 of those original grounds of appeal.  The appellant now makes application for permission to be granted on the refused grounds 2 and 4 to 8.  The original grounds of appeal appear as follows:

    1.That the words uttered were not a threat the instruction and words uttered by Lovell J were prejudicial towards the appellant.

    2.Instruction to the jury in answering a question from the jury were prejudicial toward the appellant and removed any benefit of doubt.  The judge gave further directions for the purposes of answering the jury question about count 3 (and probably about count 1) that removed a benefit of doubt the appellant would have received.

    3.That the judge permitted evidence of the recording after the adjournment at the end of the Tribunal hearing to be adduced in evidence by the prosecution in the exercise of his discretion.  The allowing of the recording clearly prejudiced the appeal.

    4.That the judge misdirected the jury about certain matters.  These were raised at the end of summing but Lovell J [sic] prejudice and bias towards the appellant was obvious.

    5.The fact that the prosecutor fell asleep in front of the jury and observed by the jury who were pointing and smirking at the asleep prosecutor during the appellants address to the jury, clearly was prejudicial and bias towards the appellant.  The appellant was forced to send a letter to the Chief Judge and Lovell J to raise this concern but no action was taken, clearly prejudial [sic] and bias toward the appellant.

    6.The fact that the prosecutions and the judge involved in the matter on the 31-5-13 were drinking not ten minutes after a directions hearing together obviously discussing the events of my case clearly shows the prejudice and bias that exists in the courts towards the appellant.  The fact that this was observed only once clearly shows that the prejudice to the appellant and the bias towards a fair and justice trial by any Judge in the Courts system against the appellant.

    7.The fact that the main witness did not give a statement until once the trial had started clearly prejudicial towards the appellant as there was not time to prepare a defence against this late witness.  Also further this witness gave over the top, theatrical and bias [sic] evidence that the Judge allowed to continue and only said it was not needed after the witness had done his damage and evidence, thus prejudial [sic] and bias towards the appellant.

    8.The judge was against all points of law raised by the appellant’s lawyer which further placed the allowing directions being made that clearly were prejudice and bias against the appellant to the jury.

    9.The appellant seeks to provide an amended claim of more points of law once a copy of the transcript is made available to the appellant.

1. The appellant also later filed a further additional document headed “Further questions of law for appeal” which contained five further grounds of appeal in relation to which he also applies for permission to appeal.  We will refer to these five grounds as the further grounds of appeal.  These proposed grounds are lengthy and discursive and there is a good deal of duplication between some of the original grounds of appeal and some of the further grounds of appeal.  There is no point in reproducing them.

2. To simplify matters at the hearing of the appeal, the Court proceeded on the basis that the appellant would put his arguments on all of the original grounds of appeal and on all of the further grounds of appeal and the Court would later decide the questions of both whether permission to appeal should be granted on any ground (upon which it had not already been given) and on the question of whether the appeal should be allowed on any ground(s) of appeal.

3. We therefore proceed to consider each of the original grounds of appeal (with the corresponding further grounds of appeal where appropriate).  We then deal with any of the further grounds of appeal not already adequately addressed.

   Original ground of appeal 1:  (a) The words uttered were not a threat and (b) the directions of the Judge as to the elements of the offence were prejudicial (permission granted by David J)

4. A threat to cause harm includes a threat to cause pain, unconsciousness or disfigurement.  A threat has been described as including a “declaration of hostile intent”.[6]  In assessing whether particular words amount to a threat, one may take into account the context in which the words are spoken, the demeanour of the speaker including apparent hostility, and the physical proximity as between the relevant persons.

   [6]    SA Police v Bednarz (Unreported, SASC, Debelle J, 7 February 1995) citing Carter v R (1994) 176 LSJS 112.

5. The words in count 1 include a threat by the appellant to perform a specific act of violence (“And if he gets up I will fucking stand on my feet and will knock him down”) and were uttered when Salu was about two to three metres from the appellant.  The appellant agreed he was “aggressive, angry and pretty upset” when these words were spoken. 

   A conditional threat?

6. We have considered whether the words in count 1 “if he gets up …” could in some way constitute a condition negating any threat.  Such argument has usually occurred in the context of the crime of assault, often commencing with the famous case of Tuberville v Savage in 1669.[7]  However, other more recent decisions clearly establish that an assault can be committed by a person purporting to require positive or negative compliance with a condition on pain of an assault.  They include Blake v Barnard;[8] Police v Greaves;[9] Barton v Armstrong;[10] Rozsa v Samuels[11] and Longden v The DPP.[12]

   [7] (1669) 86 ER 684.

   [8]    (1840) 9 C&P 626.

   [9] [1964] NZLR 295, 298.

   [10] [1969] 2 NSWR 451, 456.

   [11] (1969) SASR 205.

   [12]   [1976] Crim LR 121.

7. The position in relation to “threat” offences was correctly stated in R v Leece by Higgins J in the context of the offence of threaten to kill:[13]

   [37]One may infer from these quotations that to be a threat to kill, the relevant utterance or communication must convey, objectively, to the hypothetical reasonable person in the position of the listener or recipient that the publisher proposes to kill the listener or recipient or another person.  If it conveys a merely hypothetical proposal that will not suffice, but a conditional threat, particularly when the person threatened is entitled not to meet such conditions, will suffice as “a threat”.  There may, of course, be a fine line between such a conditional threat and a merely hypothetical one.     (Emphasis added)

   [13] (1995) 78 A Crim R 531, 536.

8. In similar vein, in The Queen v O, Bleby J stated:[14]

   The threat in this case might in some ways be regarded as a conditional threat, namely that there was no immediate threat of harm to any police officer unless he entered the house.  There is a decision of the District Court in R v Kotzmann (1994) 178 LSJS 15 which suggests that if a conditional threat is made and the person issuing the threat has power lawfully to impose the condition, breach of which will result in an apprehension that the threat will be carried out, that does not constitute a breach of s 19. However, that case is based on an earlier decision of this court in where, in the case of assault, it was made clear by Hogarth J (at p208) that if in those circumstances the condition was one which a party had the right to impose, the threat of striking unless the condition is complied with is not an assault. On the other hand, if the condition was one that the party had no right to impose, the threat to strike was an assault, notwithstanding the condition. For reasons I have mentioned, [the accused] had no right lawfully to impose the condition that police officers should not enter the house.

   [14]   (Unreported, SASC, Bleby J, 19 June 1997).

9. It is clear that the words were, as a matter of law, capable of being a threat within the legislation and that the directions given by the Judge (including an aide-memoire) were correct and adequate. 

   Original ground of appeal 2:  Answering jury question (permission refused by David J) [together with further grounds of appeal 1 and 2(a)-(d)]

10. The question from the jury was as follows:

    If a threat is directed at more than one person, does the charge still stand if that one person is in the group, or does the threat need to be only directed to the one person as per the count?

11. We note that 2(b) of the further grounds of appeal misstates the directions given by the Judge.  In fact, the Judge directed as follows:

    Now, I’ve assumed just for the moment that [the question] might relate to count 3, but it doesn’t actually matter because the direction would be the same no matter which count it actually relates to; so if I can just remind you very briefly of the evidence in relation to count 3.  Salu gave direct evidence that the last sentence as seen in MFI P2, p17 ‘You know where I live, I know where you live’ was directed specifically at him.  And at that stage Bruun may well have been in geographical proximity to him, I don’t think he was able to say exactly where he was.  Bruun gave similar evidence that that last sentence ‘You know where I live, I know where you live’, the direct evidence from Bruun was that was directed specifically at Salu and he said he was in relatively close proximity.  Both of them gave evidence in relation to the few lines before that as being directed by Mr Moore-McQuillan and Bruun, but they weren’t totally congruent about when that conversation with Bruun ceased.  In other words Salu and Bruun didn’t quite agree on when he stopped talking to Bruun and turned his attention to Salu.

    Mr Wilton gave evidence that he considered all of what you see on p17 relating to coming around and leaving, all of that related to Bruun.  Mr Moore-McQuillan, when he gave evidence, said the same thing, that he was directing his conversation towards Bruun.  So the short point in relation to all of that is this: that it’s nobody’s case, neither the prosecution nor the defence, that Mr Moore-McQuillan spoke in a general sense to the group.  It is the prosecution case that he directed his attention on that last line or two on p17, to Salu.  It’s Mr Moore-McQuillan’s direct evidence that he did no such thing. Bruun was of course close by.

    Now, to answer your question as best I can I’ll take you back to the directions on the law.  I won’t repeat all of them, obviously.  First of all, to be considering this you must consider the first ingredient, whether it is a threat or not and I won’t go through that.  I won’t go through the second ingredient but just remind you that the prosecution must prove that Mr Moore-McQuillan threatened to cause harm to another person, in this case Salu.  What you have to focus on in relation to the third ingredient is that the prosecution must prove that at the time the threat was made - and I have stressed that a few times, at the relevant time the threat was made, that Mr Moore-McQuillan intended to arouse a fear in Salu that the threat would be or was likely to be carried out, or that he was recklessly indifferent as to whether such a fear was aroused in relation to Salu.  So when you come to consider the third element, the prosecution must prove that at the time the threat was made Mr Moore-McQuillan intended to arouse a fear in Salu, that the threat would be or is likely to be carried out, or that he was recklessly indifferent as to whether such a fear was aroused.  So, to try then to bring that back to the question, as I understand the question that you’re putting: in essence, the prosecution must establish that at the very least he was directing his comment to Salu.  You must be satisfied of that beyond reasonable doubt.  The proximity of Bruun in a sense does not matter but you cannot convict Mr Moore-McQuillan of this offence if you are in the state of mind that it is a possibility that he was just generally directing it towards a group, without there being a specific intention to arouse a fear in Salu.  I’ll repeat it: the Crown must prove that at the time the threat was made, Mr Moore-McQuillan intended to arouse a fear in Salu that the threat would be or was likely to be carried out, or was recklessly indifferent as to whether such a fear was aroused.  Gentlemen is there anything else?

    MR MANCINI:     No.

    MR POWELL:    No.   (Emphasis added)

12. These directions by the Judge were accurate and fair to the appellant.  In any event, on the evidence, the question and answer were incapable of applying to count 1.  Permission to appeal is refused.

    Original ground of appeal 3:  Allowing evidence of electronic audio recording of conversation to be led (permission granted by David J)

13. This ground only relates to count 3.  In light of our decision in favour of the appellant as to count 3 on a different ground, we deal with this present ground very briefly.  We consider that the Judge’s ruling and reasons are correct.  His Honour addressed both the Bunning v Cross[15] and the fairness discretions and correctly set out the relevant matters to be taken into account in the present circumstances.  This ground of appeal (upon which permission was granted) is rejected.

    Original ground of appeal 4:  Judge misdirected the jury about matters raised at end of summing up (permission refused by David J)

    [15] (1978) 141 CLR 54.

14. The only directions that his Honour gave at the end of the summing up were those given in response to the question of the jury; this has already been discussed under original ground 2 of appeal above.  Permission to appeal is refused.

    Original ground of appeal 5:  The sleeping prosecutor (permission refused by David J) [together with further ground of appeal 3, dotpoint I]

15. At trial, counsel for the appellant referred to this matter but indicated that he did not apply for a mistrial and did not ask the Judge to do anything about the allegation made by the appellant.  The Judge raised it with the prosecutor who clearly stated that he had not been sleeping and that he had listened intently to the address and had made notes.  The Judge stated that he had not noted anything amiss: “I certainly didn’t observe you asleep yesterday; quite to the contrary”.

16. No affidavit has been filed by the appellant; no doubt the prosecution would have wished to file answering affidavits if it had been.  There is simply an assertion in a proposed ground of appeal of a matter that has already been specifically denied.  Permission to appeal is refused.

    Original ground of appeal 6:  Prosecutor and a Judge drinking together (permission refused by David J) [together with further ground of appeal 4]

17. Original ground 6 and further ground 4 refer to one and the same occasion.  The allegations lack relevance, clarity and specificity.  There are inconsistencies between the versions in the two grounds of appeal and no affidavit evidence has been filed.  It is clear that the allegation of drinking with the prosecutor is not made against the present trial Judge but purports to relate to a quite different Judge.  Permission to appeal is refused.

    Original ground of appeal 7:  Evidence of Dr Salu (permission refused by David J) [together with further ground of appeal 3, dotpoints A and D]

18. As to the first aspect of the complaint, the prosecution was always entitled to call Salu and it is not established that the lateness of the making of the decision to do so caused the appellant prejudice.

19. The witness statement of Salu is dated 14 February 2014 and was provided late on Friday 14 February.  Statements of the other prosecution witnesses present in court at the time of the alleged threats, Bruun and Wilton, had been supplied prior to June 2013.

20. On 17 February 2014, the Court sat for less than an hour and did not sit again until Thursday 20 February.  On that day an application for an adjournment was made and the Judge ultimately agreed to adjourn the matter to Wednesday 26 February to accommodate the appellant.  On Friday 21 February a second, short declaration of Salu was provided clarifying one aspect of his earlier statement.

21. The trial did not start until Thursday 27 February and the appellant did not assert to the Judge that there were any outstanding matters that would result in an unfair trial if the trial commenced on that day.  Salu did not complete his evidence until Monday 3 March 2014.

22. We consider that the appellant and his counsel were given plenty of time to consider the position and prepare cross-examination.  Further, the calling of Salu gave the appellant a real chance to ventilate various themes of his defence in that cross-examination and in some cases that was done effectively.

23. As to the second aspect of the complaint, namely that Salu gave “over the top evidence, theatrical and biased evidence”, the appellant was represented by counsel who was equipped to expose such matters, if true, in cross-examination and in his address to the jury.  

24. The appellant has not identified any specific prejudice under either aspect of the proposed grounds.  Permission to appeal is refused.

    Original ground of appeal 8:  Judge against the appellant on all points of law raised (permission refused by David J)

25. This proposed ground fails to state a proper ground of appeal.  If complaint is to be made that a Judge found against an appellant on all points of law, the relevant points of law must be set out.  If it is then found that the Judge erroneously determined one or more points, the appellant is successful for that reason.  If it is found that the Judge was correct in determining all points against the appellant, the comprehensive nature of the appellant’s loss at trial cannot per se avail him on appeal.  Permission to appeal is refused.

26. Much of the balance of the further proposed grounds of appeal not already addressed above is scarcely intelligible but we refer to the following matters.

    Further ground of appeal 3, dot point B – forcing trial on when appellant had a medical condition etc – refers to T150

27. This proposed further ground relates to an application made during a voir dire hearing on Thursday 20 February 2014.  We have recited the course of adjournment subsequent to this date in considering original ground 7 above.

28. The matter of a medical condition was not referred to again after 20 February by the appellant or his counsel and the Judge would thereby have assumed that the adjournment of the trial until Wednesday 26 February had alleviated any problem.  There is no evidence, or even an assertion, before this Court that it did not do so.  Permission to appeal is refused.

    Further ground of appeal 3, dot point C – chain of evidence

29. This proposed ground raises no intelligible ground of appeal and this deficiency was not rectified on the hearing of the appeal and the application.  Permission to appeal is refused.

    Further ground of appeal 3, dot point E – argument at T826-835

30. This proposed ground involves a fanciful submission that s 15A, Criminal Law Consolidation Act 1935 (SA) could afford the appellant a defence in that he believed that his conduct was necessary to protect “property”. His Honour treated the matter seriously and correctly ruled that he was not prepared to leave such a defence to the jury. Permission to appeal is refused.

    Further ground of appeal 3, dot point F – “outburst” by the Judge

31. This proposed ground complains of an “outburst” by the Judge.  The passage finally identified as being relied upon here in no way constitutes any impropriety by the Judge.  Permission to appeal is refused.

    Further ground of appeal 3, dot point G – Judge’s use of the word “hate”

32. At one point in his summing up, the Judge characterised the attitude of the appellant to Olsson Au J, to be inferred from all that the appellant had said to, and about, Olsson Au J, as one of “visceral hatred”.  Following that direction, Mr Mancini, in the absence of the jury, asserted that the appellant had only specifically admitted that he had a dislike of Olsson Au J.  His Honour took Mancini to various passages in the transcript, which we do not need to set out, where the appellant expressed various statements and opinions about Olsson Au J from which the inference of “visceral hatred” was to be drawn.  His Honour offered to withdraw the remark “visceral hatred” and leave it to the jury to draw what inference they chose from those various passages.  Mancini indicated that he preferred that that course not be taken.

33. It was, of course, a matter for the jury what inference they drew, but the fact is that the inference of “visceral hatred” was certainly well open on the evidence.  Further, the Judge specifically directed the jury that the facts were for them:

    The findings that you make about those facts, however, is your responsibility.  In turn, the judge – counsel or myself – cannot impose their views on you.  You have had the advantage in this case of the addresses by counsel on either side.  When considering your verdicts you should keep in mind the points they have made to you.  It is your function to assess the weight which is to be attached to the arguments which have been put to you.

34. The Judge’s summing up as a whole was moderate and fair and the jury in fact acquitted the appellant on the only charge that related to Olsson Au J.  Permission to appeal is refused.

    Further ground of appeal 3, dot point H – efforts to avoid a mistrial

35. This proposed ground states no intelligible ground of appeal.  Permission to appeal is refused.

    Further ground of appeal 5 – decision taken by Mr Mancini

36. This proposed ground seems to complain of a tactical decision taken by the appellant’s counsel with the full knowledge of the appellant.  Such a decision except in exceptional circumstances could not usually lead to a finding of a miscarriage of justice and no such circumstances are established here.  Permission to appeal is refused.

    Conclusion as to the appeal against the verdict on count 1

37. No ground of appeal is established in relation to the verdict on count 1.  We have reviewed the evidence and consider that that conviction is supported by the evidence.  We have no doubt of the guilt of the appellant and we dismiss the appeal in relation to count 1.

    Disposition of the appeal

38. We make the following orders.

    1The appeal in respect of count 3 is allowed.

    2The conviction on count 3 is set aside and a verdict and judgment of acquittal on count 3 is substituted.

    3The appeal in respect of count 1 is dismissed.