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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Moore-McQuillan

Details

AGLC: R v Moore-McQuillan [2014] SASCFC 113
Case: [2014] SASCFC 113
Decision Date: 30 October 2014

CaseChat Overview and Summary

The appeal concerned a conviction on count 3 for assault, brought by the appellant, R v Moore-McQuillan, before the Court of Appeal. The dispute centred on whether the appellant's recorded remarks, constituting count 3, were directed at Mr Bruun or Dr Salu, and the interpretation of those remarks in determining the nature of the alleged assault.

The legal issues before the Court of Appeal included whether the verdict on count 3 was unreasonable or insupportable having regard to the evidence, and whether the trial judge's conduct or the prosecutor's conduct had led to a miscarriage of justice. The court also considered whether any objections or points not raised in the court below could be considered.

The Court of Appeal, after reviewing the audio recording and the evidence of Dr Salu and Mr Bruun, concluded that the remarks forming count 3 were unequivocally directed at Mr Bruun. Specifically, the court found that the reference to "Zulu knows that because he fucking organised people to come around as well" clearly indicated the appellant was addressing Bruun, not Salu. The court determined that the conviction on count 3 was not supported by the evidence as presented and interpreted by the appellate court.

Consequently, the appeal in respect of count 3 was allowed, the conviction was set aside, and a verdict and judgment of acquittal were substituted. The appeal in respect of count 1 was dismissed, with the court finding the conviction on that count to be supported by the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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. 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 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) 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.

Decision

Reasons for decision

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 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 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.

Ratio Decidendi

Legal Principle Established

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 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. 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 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) 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. 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. 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.