R v Moore-McQuillan - [2015] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Permission to Appeal)
R v MOORE-MCQUILLAN
[2015] SASC 163
Reasons for Decision of The Honourable Justice Kelly
14 October 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
The applicant was convicted for one count of aggravated threatening to cause harm pursuant to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He successfully appealed his conviction for a second count of the same offence in the Court of Criminal Appeal. He was sentenced to a term of imprisonment of six months, suspended upon the applicant agreeing to enter into a bond to be of good behaviour for a period of three years.
The applicant seeks permission for a second appeal against his conviction, and also appeals against his sentence.
Whether a second appeal against conviction should be permitted pursuant to s 353A(1) of the CLCA. Whether the applicant’s appeal against sentence is reasonably arguable.
Held per Kelly J (refusing both applications for permission to appeal):
1. The matters raised by the applicant do not discharge the onus in s 353A of the CLCA, and constitute inadmissible hearsay.
2. The applicant’s grounds of appeal against sentence are not reasonably arguable. The sentence imposed was moderate if not merciful.
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 353A(1), s 353A(6)(b); Criminal Law (Sentencing) Act 1988 (SA) s 30(2), s 38, referred to.
R v Keogh (No 2) (2014) 121 SASR 307; R v Franceschini [2015] SASCFC 116, applied.

R v MOORE-MCQUILLAN
[2015] SASC 163
Criminal: Application for Permission to Appeal
KELLY J.

The applicant, Markham Moore-McQuillan, has filed applications for permission to appeal against conviction and sentence.
The background to the applications is not uncomplicated. The applicant was tried by jury on three counts of aggravated threatening harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The offences charged all occurred on 14 October 2011 during a hearing at the Workers Compensation Tribunal. The presiding member of the Tribunal, Auxiliary Justice Olsson, was the alleged victim the subject of count 2. Dr Salu, who was counsel acting for the WorkCover Corporation during the hearing, was the alleged victim of counts 1 and 3. The jury acquitted the applicant of count 2 but convicted him of counts 1 and 3.
Following an appeal to this Court, the Court of Criminal Appeal partially allowed the appeal and set aside the conviction on count 3 and substituted a verdict and judgment of acquittal on that count. The appeal in relation to count 1 was dismissed. The Court handed down its judgment on 30 October 2014.[1]
[1] R v Moore-McQuillan [2014] SASCFC 113.
On 9 December 2014, Lovell DCJ (as he then was) sentenced the applicant in respect of the one offence for which the applicant was convicted. He imposed a sentence of six months imprisonment which was suspended upon the applicant agreeing to enter into a bond to be of good behaviour for three years.
On 12 June 2015 the applicant filed a second notice of appeal in respect of the conviction recorded on count 1, and a notice of appeal against the sentence imposed by Lovell DCJ on 9 December 2014. In an affidavit stamped as received by the Supreme Court Registry on 12 June 2015, that affidavit having been affirmed on 9 June 2015, the applicant claims to have filed his notices of appeal and an affidavit in support of his notice of appeal against conviction on 22 December 2015. He was then informed on 4 June 2015 by the Criminal Registry that the documents filed in December 2014 were misplaced. As the respondent takes no issue with the filing of the notices of appeal out of time, it is not necessary to say anything further about this.
The appeal against conviction
In the fresh notice of appeal the applicant raises seven grounds as follows:
1The first appeal against conviction did not include evidence from the jury regarding the prosecutor distracting the jury by falling asleep during the trial Judge’s summing up;
2The jury in his trial was empanelled on the last day of the jury month, and as such they were inattentive to his trial;
3The jury conducted internet searches during the applicant’s trial and obtained information about him;
4The jury had excessive amounts of electronic evidence before it;
5The jury observed the prosecutor at trial having lunch with the trial Judge, or other Judges of the Court in the Adelaide Central Markets during breaks;
6The evidence of Dr Salu was “over acted and beyond the normal” and the Judge gave no directions to the jury to prevent the nature of Dr Salu’s evidence from prejudicing the applicant; and
7In November or December 2014 a juror contacted the applicant and informed him of the jury’s feelings about the trial.
It was the applicant’s submissions that the effect of these matters was that he was prejudiced at trial, and had his right to a fair trial denied or interfered with. Specifically, the applicant submitted that a mistrial should have been declared as a result of the matters the subject of grounds 5 and 7.
Grounds 1, 5 and 6 of the proposed new appeal grounds were the subject of the original grounds of appeal dealt with by the Court of Criminal Appeal in its judgment on 30 October 2014.
Ground 1, the allegation that the prosecutor fell asleep was the subject of the original appeal ground 5. Ground 5, the allegation that the prosecutor was socialising with Judges was the subject of the original appeal ground 6. Ground 6, the allegation concerning Dr Salu’s evidence was the subject of the original appeal ground 7.
The additional proposed appeal grounds 2, 3, 4, and 7 are based on information allegedly obtained by the applicant from a juror on the applicant’s trial who allegedly encountered the applicant in November or December 2014 and informed the applicant of what had occurred in the jury room.
Any second or subsequent appeal after hearing and determination by the Court of Criminal Appeal is governed by the terms of s 353A of the CLCA.
In R v Keogh (No 2)[2] the Court of Criminal Appeal explained the prerequisite requirements set out in s 353A(1) of the CLCA. In short, an applicant must satisfy the Court of the criteria set out in s 353A(1), namely that there is “fresh and compelling evidence”.
[2] (2014) 121 SASR 307.
In the affidavit affirmed on 9 June 2015, referred to above, the applicant alleges a meeting with a juror in late November or early December 2014. In submissions before me the applicant gave details of that meeting. In brief, the allegations are that he ran into the juror by chance at the Shell service station in Darlington. The juror informed the applicant that he was one of the people who had abstained from finding the applicant guilty, and had concerns about what had happened in the jury room. Many of the matters allegedly conveyed by the juror to the applicant bear a distinct resemblance to some of the matters put forward and argued by the applicant in the original appeal.
Suffice to say that none of the matters raised by the applicant in my view discharge the onus upon him by s 353A(1) of the CLCA. The allegations concerning the juror in my view constitute inadmissible hearsay.
Even if I am wrong about that characterisation, I would not regard the nature of the material proffered by the applicant as “compelling” evidence as defined by s 353A(6)(b) of the CLCA.
Insofar as the applicant now seeks to re-agitate original grounds of appeal dealt with and dismissed by the Court of Criminal Appeal in its judgment of 30 October 2014, being grounds 1, 5 and 6, permission is refused. Insofar as the applicant seeks to raise fresh grounds of appeal, being grounds 2, 3, 4, and 7, for the reasons I have stated permission is refused.
Appeal against sentence
The applicant seeks permission to appeal against the sentence imposed by Lovell DCJ on four grounds: first, that the sentence was excessive; second, that the Judge did not take into account the three and a half years which the applicant spent either on bail, home detention or supervised release and restrictions; third, that the sentence was unnecessarily harsh when the length of the sentence and time spent on bail are considered; and fourth, that the good behaviour bond should have been backdated to the date of charging of the offence.
The application can be dealt with shortly. In my view, none of the grounds are arguable. The maximum penalty for the offence of threatening harm contrary to s 19(2) of the CLCA is seven years imprisonment for an aggravated offence. The applicant was sentenced against a background which included a relevant history of antecedents. The assault occurred in the context of a tribunal hearing and was serious in nature. Whether or not the period spent on bail or home detention was taken into account was a matter within the discretion of the sentencing Judge. The Court of Criminal Appeal has recently made clear that the scope of s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) is confined to circumstances in which a period of time has been served in custody, not on home detention bail.[3] The period of imprisonment imposed was short and in my view there was no obligation on the Judge to further reduce an already merciful sentence by reason of time spent on home detention bail.
[3] R v Franceschini [2015] SASCFC 116 at [38].
The final complaint that the bond should have been backdated is based on the applicant’s misunderstanding of s 38 of the Criminal Law (Sentencing) Act 1988 (SA). The applicant has failed to point to any error which might attract the intervention of the Court of Criminal Appeal. The sentence itself was a moderate if not merciful sentence given the applicant’s history. Permission is refused.