Moore-McQuillan v SA Police A29/2000 [2002] HCATrans 188 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide Nos A29 and A30 of 2000

B e t w e e n -

M. MOORE-McQUILLAN

Applicant

and

SA POLICE

Respondent

Applications for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 11.20 AM

Copyright in the High Court of Australia

MR MOORE-McQUILLAN appeared in person.

MR B.M. SELWAY, QC, Solicitor -General of the State of South Australia: Your Honours, I appear with my learned friend, MR J.A. POWELL, for the respondent. (instructed by Crown Solicitor for the State of South Australia)

MR MOORE-McQUILLAN: I have a foot injury and it may be more convenient if I may sit, if your Honours can see me when sitting.

GAUDRON J: We will attempt to accommodate you in any way we can. Perhaps I will just ask a question of you with you rising and we will see if we can see you. Mr Moore-McQuillan, yes, we can see you. Please do not feel it necessary to move. Is it convenient to you if we hear these two matters together?

MR MOORE-McQUILLAN: I think that might be more expedient for you and for myself.

GAUDRON J: Very well, and I will just see if Mr Selway has any objection to that course.

MR SELWAY: No, your Honour.

GAUDRON J: Thank you. Very well, Mr Moore-McQuillan, we will hear what you have to say.

MR MOORE-McQUILLAN: Your Honours, the first matter is A29 and the second one is A30. They do flow between one another but I will start with A29 first. Basically, this is an application for leave to appeal the matter that was before Justice Duggan of 239 of 1997, which I have outlined in my summary of argument. I think we have got that in the notice of appeal, of what I am here for. Basically, the points of law are quite simple in itself. One, there was no evidence called or witnesses were not called for this conviction - if they had been called this conviction would not have been able to stand.

GAUDRON J: You were the appellant, were you not?

MR MOORE-McQUILLAN: I was the appellant.

GAUDRON J: I do not know what sort of appeal this is. What is the relevant appeal provision? What provision of the law got you before Justice Duggan?

MR MOORE-McQUILLAN: Right. Before Justice Duggan we appealed a restraining order that was confirmed incorrectly and the sentencing and conviction by the police, who then went and enforced that restraining order. Then there was a resisting of arrest and an assault alleged.

GAUDRON J: Yes. Perhaps you do not understand this.

MR MOORE-McQUILLAN: No, I am lost on that one.

GAUDRON J: There are different types of appeals.

MR MOORE-McQUILLAN: Which one are we going to deal with? Perhaps my learned friend might be able to instruct on that one?

GAUDRON J: Yes. From our point of view Mr Moore-McQuillan, there do appear to be some problems in A29, not problems of your making, but it might be to our advantage if we put some questions to the Solicitor-General and asked him to answer them before we hear you if that satisfies you?

MR MOORE-McQUILLAN: That is all right with me.

KIRBY J: We will stop the clock and you will not lose any of your time.

GAUDRON J: No, we will come back to you. Mr Solicitor, first of all, what is the statutory provision pursuant to which there was an appeal to Justice Duggan? That is the first question. Secondly, how many appeals were there to Justice Duggan? Thirdly, there appears to be something fundamentally wrong with the order we see at application book - what his Honour did was purport to dismiss the appeal but nonetheless, having dismissed the appeal, then purported to do something about sentence and seems to have done it without setting aside the earlier sentence. There does seem to be a problem here.

MR SELWAY: Yes, your Honour. The appeal provision is section 42 of the Magistrates Act. It is an appeal by way of rehearing but not an appeal de novo.

GAUDRON J: What does that mean in practice?

MR SELWAY: In practice, your Honour, there is a flexible approach to an appeal by way of rehearing where further evidence can be called, further material can be put before the court, but the court normally defers to discretions and factual findings of the magistrate.

GAUDRON J: Why would it do that?

MR SELWAY: It is not an appeal de novo.

GAUDRON J: What does the Act say? Perhaps you could read us section 42.

MR SELWAY: Yes, your Honour.

(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action -

(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.

Subsection (4):

On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.

(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:

(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

(b) it may remit the case for hearing or further hearing before the Magistrates Court;

(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

GAUDRON J: Yes, that answers our first question, I think. The second question was: was there one or were there two appeals before Justice Duggan? I know his Honour elected to approach the issues in two hearings, or seemingly that is what happened, but was there one appeal - - -

MR SELWAY: Yes, your Honour. I must say, until your Honour raised it, I had always assumed there was only one.

GAUDRON J: It looks to me as there was only one but where are the orders on the first? There seems to be a problem about this, does there not?

MR SELWAY: Your Honour, I would have to say that if the only order is the order on page 16 of the application books, that does not reflect the orders made by Justice Duggan.

KIRBY J: It does seem a bit odd, that order. The first order is the appeal be dismissed and the second order is that a global penalty be imposed.

MR SELWAY: Yes.

KIRBY J: Normally, if one dismisses it, you are confirming the order of the court below and, normally, if you are going to make your own order you have to allow an appeal and set aside the order of the court below and then substitute your own by the authority you have. This seems to be a hybrid. I have never seen such an order before myself, but it may be some South Australian peculiarity.

GAUDRON J: It looks as though it was one taken out with an excess of enthusiasm by the Crown Solicitor and settled without reference to Mr Moore-McQuillan.

MR SELWAY: Your Honours will see that the date of hearing includes 24 June, which is the date of the first judgment, and on any view that judgment - - -

GAUDRON J: The appeal should have been allowed, in part at least.

MR SELWAY: Yes.

KIRBY J: Normally, an error of that kind can either be set aside by us in the exercise of our appellate power or it may be able to be set aside by the court a quo on the basis that there is a slip between the reasons of the judge and the formal order entered in the records of the court, but one or the other seems to have to be done.

MR SELWAY: Yes, I would agree with that, your Honour. The slip rule would seem to be available even though the order seems to have been confirmed by the Full Court without reference to its somewhat peculiar form.

GAUDRON J: The better course would be, would it not, for us to grant special leave, allow the appeal instanter, let the matter go back to the Full Court where at least the order has to be considered and if the court has to consider the order - - -

MR SELWAY: I would have no objection to that course, your Honour. It seems a sensible way to deal with what, on any view, is a strange order.

KIRBY J: It clears the record. I have problems with the slip rule, first of all because it has gone through the Full Court, but anyway, it has been entered in the record of the Court and I just have a few difficulties myself with using the slip rule, so if you have no objection to our instanter allowing the appeal and setting aside the orders, then the whole thing can be sorted out in the Full Court without troubling us.

MR SELWAY: Yes, I agree; I think that is the best course.

GAUDRON J: Yes, thank you. Perhaps at this stage we will go back to Mr Moore-McQuillan.

KIRBY J: Is that the only order, Mr Solicitor? Can I ask is that the only order we are concerned with in this matter, the first matter?

MR SELWAY: So far as I am aware, your Honour; there is no other order I am aware of.

KIRBY J: Yes, I did not find any other.

GAUDRON J: Mr Moore-McQuillan, you have heard what the Solicitor-General has said. Did you follow what - - -

MR MOORE-McQUILLAN: Yes, I have.

GAUDRON J: Something has to be done about this matter. Whether what is or can be done will take you the full distance of what you want to argue we would not know, but at least, prima facie, we think the better course is to grant you special leave to appeal, allow your appeal and remit the matter to the Full Court of South Australia to have a look at and at that stage you can attempt then to raise any other issues that you wish in relation to this, but that order is wrong. Do you follow that?

MR MOORE-McQUILLAN: Yes, and having said that, then that makes -A30 should also go back because we are dealing with the costs from A30.

GAUDRON J: No, it does not, not - - -

MR MOORE-McQUILLAN: I just thought it should have been heard as well.

KIRBY J: We are dealing with this one first but on the face of the record that we have, there seems to be a mistake that has occurred and, therefore, the best way to sort that out is for us to set aside the order of the Full Court and remit the matter to the Full Court so they can consider whether the order of Justice Duggan does not need, as it appears to need, intervention of the Full Court because, on its face, it appears to have dismissed the appeal but then substituted a different order and that does not seem to be correct, unless there is something in the South Australian legislation that I have not heard or do not understand. So, do you have any objection to that course? The Solicitor-General has no objection.

MR MOORE-McQUILLAN: I have no objection to that at all.

GAUDRON J: We will not make the order just yet because one of the issues that is going to need consideration of both matters is what we do about costs. I see that the Crown has asked for costs against you but we certainly would not grant costs against you in these circumstances.

KIRBY J: You might even get costs.

GAUDRON J: You might get costs, but that seems to us to be a matter to be looked at in the light of both matters together.

MR MOORE-McQUILLAN: All right.

GAUDRON J: If you would address us now on A30 and then we will hear the Solicitor and then we will come back to you further at the end as to the question of costs in this Court, nowhere else.

MR MOORE-McQUILLAN: Right.

GAUDRON J: Yes, thank you, Mr Moore-McQuillan. Are you clear on that?

MR MOORE-McQUILLAN: Yes, I am, thank you very much. A30 is an application and a point of law on an appeal that arose from a Supreme Court action, 748 of 1998. When the matter we just heard in A29, when I was convicted of the restraining orders and the police attending, then it went to Duggan, Duggan set it aside, went back to the Magistrates, then it was not confirmed, I accumulated over $10,000 in costs.

GAUDRON J: Yes.

MR MOORE-McQUILLAN: I got awarded - - -

GAUDRON J: But do you not have this difficulty? Justice Duggan's order, which you are seeking leave to appeal, said "No order as to costs". Mr Moore-McQuillan, it has just occurred to me - and perhaps I should raise that with the Solicitor - if that order is going back it may be that something would happen about costs, I do not know. But as Justice Duggan's order presently stands you were to get no order for costs of the proceedings before him and the only order for costs that the magistrate could make was for costs in relation to the non-confirmation, and he awarded you costs for that, but it just might be better to ask the Solicitor-General a question here, I think, if you would not mind.

Mr Solicitor, if A29 goes back, there is a theoretical possibility, at least, that something might happen about costs. What did Justice Duggan say? He said he made no order, but again, it is not clear to me whether his Honour's attention was focused only on the resist arrest and assault police charges or the breach restraining order charges.

MR SELWAY: Yes, your Honour, I think I would have to concede that. I do not know that it is all that clear from the reasoning as to what his Honour was doing in relation to the costs. If that is true and the order is set aside, I do not think I can suggest that it is beyond doubt that there might be some issue of costs in the Full Court.

GAUDRON J: So we just have to stand this A30 over, I think, do we not? This has got itself into a mess one way or another and I do not think we can say that the Crown or the Crown representatives have been without some sort of fault in this.

MR SELWAY: I agree, your Honour. The only other possibility is that given that it does flow and that the proper place for it to be argued then, presumably, is in the Full Court which will have the orders before it, is whether the application for special leave should be allowed on the basis that it does follow and it be remitted back to the Full Court so they can deal with the whole issue of the orders arising from Duggan.

KIRBY J: You would have no objection to our dealing with it as presently constituted in the second matter as well?

MR SELWAY: No, your Honour, in fact, I think it is the convenient course. It then enables the full matter to be argued properly in the Full Court to the extent the Full Court is prepared to hear these various issues as they might arise, but I do not think we can assume they will not hear it.

GAUDRON J: No, and I take it you accept that, at least in relation to A29, something has to be done.

MR SELWAY: Yes, your Honour.

GAUDRON J: And I take it you would agree to something being done, at least to get the record straight?

MR SELWAY: Yes, your Honour. In A29 I do not think there is any doubt that what should happen is that the appeal be allowed and remitted to the Full Court to deal with it. I think it then follows that A30 probably should be dealt with the same way so the Full Court can deal with it all.

GAUDRON J: What I am really asking is, all we would do is say to set aside the order refusing leave. I take it when the matter came back before the Full Court, it would be the attitude of those representing the respondent that leave should be granted and the order rectified appropriately?

MR SELWAY: Yes, but apart from that, in effect, the reasoning confirmed.

GAUDRON J: Yes, but that would be a matter for argument before the Full Court which has not yet heard argument.

MR SELWAY: Yes, your Honour.

GAUDRON J: Thank you, Mr Solicitor. We will go back to Mr Moore-McQuillan.

Mr Moore-McQuillan, you have heard what the Solicitor-General proposes is that in both matters special leave be granted, the appeals allowed instanter and the matter referred back to the Full Court so that the whole lot can be worked out once the A29 proceedings are properly looked at by the Full Court. Do you have any objection to that course.

MR MOORE-McQUILLAN: I have no objections to it at all, your Honour, that it what I was after when I came here.

GAUDRON J: There is a question of costs. My inclination would be to treat this, or both matters, as in essence criminal matters, in which event this Court does not make orders for costs. If you want to argue otherwise that the respondent should pay your costs of these applications in the High Court, then it is open for you to do so, although I note you are self-represented and it might not avail you to any great end.

MR MOORE-McQUILLAN: I do not think I am out of pocket. I am out of pocket only for the application, for $61 each appeal, and over $100 in just mucking around with it, so I am not really after an arm and a leg. I do not think I can actually claim lawyer fees and all that.

GAUDRON J: No. We will go back to Mr Selway, if you do not mind.

Mr Selway, I am tempted to regard it as a matter in the ordinary criminal way but now I find that in the ordinary criminal way somebody else would have paid at least the Court's filing fees and this man has had to pay them himself.

MR SELWAY: Yes. Your Honour, can I say that in Magistrates Courts in South Australia costs do flow and they flow on appeal from magistrates. That being the case, as I understand it, the Crown sought costs if it were successful. I am not in a position to oppose - - -

GAUDRON J: You cannot resist them, can you?

MR SELWAY: No, your Honour, I cannot.

GAUDRON J: Mr Moore-McQuillan, you will be getting the filing fees back but you will be getting them back from the State, because what we propose is this. I will read it out. If anyone has any problem with it I will hear argument, but otherwise I will make the orders.

It is proposed in each matter, having regard to the matters disclosed on the transcript and the position adopted by each party in this Court, that the following orders be made in each matter:

1. Grant special leave and the appeal be allowed instanter.

2. Set aside the orders of the Full Court of the Supreme Court of South Australia, refusing leave to appeal to that court.

3. Remit the matter to the South Australian Full Court for further hearing and determination.

4. The respondent to pay the applicant's costs in this Court. Costs in the Full Court to be decided by that court.

Do you wish to say anything about those orders?

MR MOORE-MCQUILLAN: No, they sound all right to me, I do not know about you.

GAUDRON J: Yes, thank you. Mr Solicitor?

MR SELWAY: Your Honour, apart from the fact that the second order and third order, the second order seems to be appropriate for each individual action, the third order for both of them. I think it is just a matter of wording if your Honour is making an order on both matters. Apart from that, no, I have no - - -

GAUDRON J: Yes. In each matter we will make orders to the effect indicated. I am sure the Registry will make sure that the wording is appropriate in each case. Given that the trouble originates in inadequate orders, they will be carefully checked by the Registry. Thank you, Mr Solicitor. Thank you, Mr Moore-McQuillan.

AT 11.46 AM THE MATTERS WERE CONCLUDED