Daniel McElholum v Callum Andrew Hughes

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J:
• Judgment Date: 24 April 2015
• Docket Number: File Number(s): SCA 27 of 2014
• Date: 24 April 2015

[2015] ACTSC 78

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCA 27 of 2014

Daniel McElholum

(Appellant)

and

Callum Andrew Hughes

(Respondent)

Cases Cited:

Baker v Thorpe (1985) 62 ACTR 1

British Thomson-Houston Co Ltd v British Insulated and Helsby Cables Ltd [1924] 2 Ch 160

Browne v Dunn (1893) 6 R 67

Butera v Director of Public Prosecutions (DPP) (Vic) (1987) 164 CLR 180

Campbell v Fortey (1987) 85 FLR 462

Collins v Wilcock (1984) 1 WLR 1172

Commissioner of Police v Caldwell [1982] AC 341

Connelly v Allan (2011) 212 A Crim R 320

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

Cotter v Corvisy [2008] ACTSC 64

Devries v Australian National Railways Commission (1993) 177 CLR 472

DPB v Western Australia [2014] WASCA 17

DPP v JWH (Unreported, New South Wales Supreme Court, Hulme J, 17 October 1997)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Elias v The Queen (2013) 298 ALR 637

Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 135

Faulkner v Talbot (1982) 74 Cr App R 1

Fox v Percy (2003) 214 CLR 118

Goundar v Goddard (2010) 240 FLR 176

Grimshaw v Mann [2013] ACTSC 189

Harrex v Fraser [2011] ACTSC 172

Higgs v The Queen [1999] FCA 1562

Isherwood v Tasmania [2010] TASCCA 11

Kelly v Johnston [2012] ACTSC 178

Likiardopoulos v The Queen (2012) 291 ALR 1

Lukatela v Birch (2008) 164 ACTR 24

Magaming v The Queen (2013) 87 ALJR 1060

Maher v Carpenter (2012) 7 ACTLR 216

Maxwell v The Queen (1996) 184 CLR 501

Oldfield v Keogh (1941) 41 SR (NSW) 206

O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204

Roseby v Harman [2014] ACTSC 125

R v Caldwell [1982] AC 341

R v Casey ; R v Smythe [1977] Qd R 132

R v Ong (2001) 80 SASR 537

R v Ramalingam [2011] ACTSC 86

R v Secretary of State for India ; Ex Parte Ezekiel [1941] 2 KB 169

R v Yates [2002] NSWCCA 520

Ryan v The Queen (2001) 206 CLR 267

Smith v New South Wales Bar Association (1992) 176 CLR 256

Stanoevski v The Queen (2001) 202 CLR 115

Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Unreported, New South Wales Supreme Court, Giles CJ, 11 March 1997)

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

TKWJ v The Queen (2002) 212 CLR 124

Veen v The Queen (No 2) (1988) 164 CLR 465 (1988) 164 CLR 465, 477

Wentworth v Rogers (No 12) (1987) 9 NSWLR 400

Williams v R (1990) 50 A Crim R 213

Legislation Cited:

Crimes Act 1900 (ACT), s 26

Crimes (Sentencing) Act 2005 (ACT), ss 17, 33(1)q) and (r)

Evidence Act 2011 (ACT), ss 32, 43, 60, 65

Human Rights Act 2004 (ACT), s 2

Magistrates Court Act 1930 (ACT), Pt 3.10, Division 3.10.2

Court Procedures Rules 2006 (ACT), rr 2903, 4053

Family Law Rules 2004 (Cth), r 15.06

Criminal Code 2002 (ACT), ss 8, 20

J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996, looseleaf, service 170)

Lord MacMillan, ‘The Ethics of Advocacy’ in Law and Other Things (Cambridge University Press, 1937) pp 191–2

Professor Julius Stone, ‘The Ratio of the Ratio Decidendi’ (1959) 22(6) Modern Law Review, 597

APPEAL — CRIMINAL LAW — Appeal from Magistrates Court — Jurisdiction — Appeal against conviction — Assault — Injury not a necessary element of the offence — Recklessness — Application of the relevant principles and precedents

APPEAL — CRIMINAL LAW — Appeal from Magistrates Court — Appeal against sentence — Seeking a non-conviction order — Seriousness of the offence — Alleged entrapment — Prior convictions — Good character — Stress and hardship

APPEAL — Conduct of the appeal — Failure to adequately particularise the grounds of appeal — Submission of irrelevant considerations — Additional material must be justified — Failure to prove submissions in evidence — Appellants cannot use the appeal to conduct a different case not put before the sentencing court

Refshauge J:

Introduction

1. Daniel McElholum, the Appellant, and his former partner, Tanya Howell, were, in late 2012, engaged in family law proceedings in the Federal Magistrates Court (as it was then known). In the proceedings, Ms Howell was represented by a firm of solicitors; Mr McElholum appeared for himself.

2. The proceedings came before the court on 22 August 2012, in relation to parenting orders for the son of Mr McElholum and Ms Howell. Ms Howell's solicitors had instructed counsel, Annette Josephine Haughton, to appear for her. The facts as found by the learned Special Magistrate may be summarised as follows.

3. When initially mentioned, the Federal Magistrate (Brewster FM) stood the matter down until 3:30 pm that day for parties to discuss, and potentially settle, some of the matters between themselves.

4. During the adjournment, Mr McElholum approached the interview room where Ms Howell was meeting with Ms Haughton and Ms Howell's solicitor and law clerk, Mona Moutrage and Annalise Drayton, respectively. Mr McElholum's knock on the door was answered by Ms Drayton, who opened the door.

5. Mr McElholum asked whether Ms Howell had considered his proposal, to which Ms Moutrage responded that they would not be in a position to speak with him for another ten to fifteen minutes.

6. Mr McElholum said that this was not good enough and Ms Moutrage replied that Ms Howell's representatives would speak with him when they were ready. Ms Drayton then attempted to shut the door and Ms Haughton rose from her seat and walked over to the door to assist.

7. As she placed her left hand on the door handle, Mr McElholum pushed the door open with such force that Ms Haughton was pushed back into Ms Drayton who was, by that time, standing behind her.

8. Ms Haughton then moved around to block the doorway, at which time Mr McElholum leaned closer and said ‘Who are you?’ in a raised voice. Feeling threatened and concerned for her client, Ms Haughton called for security, who attended and asked Mr McElholum to leave the immediate area.

9. About half an hour after the incident, Ms Haughton complained of feeling pain in her left wrist.

10. As a result of the incident, Mr McElholum was charged with assault contrary to s 26 of the Crimes Act 1900 (ACT) and a summons was issued on 16 January 2013 directing him to appear in the Magistrates Court on 19 February 2013.

11. On this date, the matter was adjourned for a case management hearing on 2 May 2014, at which Mr McElholum pleaded not guilty.

12. After a hearing on 30 August and 25 October 2013, Special Magistrate Lunney found the charge to be proved on 12 February 2014. On 7 April 2014, after hearing submissions on sentence, his Honour convicted Mr McElholum, fined him $100 and ordered him to pay court costs of $69, a criminal injuries compensation levy of $50 and a victim's service levy of $10.

13. Mr McElholum has appealed against both the conviction and the sentence.

Jurisdiction

14. An appeal to this Court against a conviction in the Magistrates Court may be brought under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 regulates such appeals.

15. The appeal is by way of rehearing: Baker v Thorpe (1985) 62 ACTR 1; Campbell v Fortey (1987) 85 FLR 462. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, I described such a rehearing in the following terms (at [78]):

2. Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

16. In this context, I note what Gleeson CJ, Gummow and Kirby J said in Fox v Percy (2003) 214 CLR 118 (at 126–7, [25]), that:

… the appellate court is obliged to conduct a real review of the trial and … of [the trial] judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect” (Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).

17. As Rares J commented in Lukatela v Birch (2008) 164 ACTR 24 (at 29; [21]):

And, although the appeal is by way of rehearing, the appellate Court does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox [Fox v Percy (2003) 214 CLR 118 at 127–128]; [27] per Gleeson CJ, Gummow and Kirby JJ.

18. I summarised the effect of these principles in Connelly v Allan (2011) 212 A Crim R 320 at 324; [12]–[15] as follows:

1. 12. So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a...