Court of Appeal Supreme Court New South Wales Medium Neutral Citation: William Wayne Moss v Luke McIlveen [2011] NSWCA 77 Hearing dates: 28 March 2011 Decision date: 28 March 2011 Before: Whealy JA, Handley AJA Decision: Application for leave is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CIVIL - APPEAL - Leave to bring private perjury prosecution - alleged bias of primary judge - ingredients of charge of perjury Legislation Cited: Crimes Act 1900 (NSW) ss 327, 338 Category: Principal judgment Parties: William Wayne Moss (Applicant) Luke McIlveen (Respondent) Representation: Counsel: William Wayne Moss (In person) D R Sibtain (Respondent) Solicitors: William Wayne Moss (In person) Blake Dawson (Respondent) File Number(s): 2010/50095 Decision under appeal Citation: [2010] NSWSC 1050 Date of Decision: 2010-09-16 00:00:00 Before: Adams J File Number(s): 2010/50095 Judgment 1WHEALY JA: William Wayne Moss, the applicant, seeks leave to appeal from a decision of Justice Adams delivered on 16 September 2010. The history of the matter may be stated briefly. 2The applicant had brought proceedings in the District Court against Nationwide New Pty Limited for breach of contract. Put shortly, the applicant's case in the District Court was that he being a person in possession of information concerning the case of Schapelle Corby, spoke to Cindy Wockner a reporter on the Daily Telegraph and later to her colleague the respondent. It was the applicant's claim in the District Court that he came to an agreement with the respondent that the applicant would be paid $250,000 for information to be published in the Daily Telegraph. 3The applicant's case against Nationwide New Pty Limited failed. The case was heard by Judge Delaney and on 31 January 2008 his Honour gave judgment in favour of the defendant. At the trial oral evidence had been given by the applicant and the two journalists in question. The respondent deposed in effect that there was no agreement to pay anything at all to the applicant. The respondent's evidence was that to the contrary the applicant was told he would not be paid anything for the information he had given. In substance the trial judge accepted this evidence and rejected that of the applicant. 4Section 327 of the Crimes Act 1900 creates an offence of perjury. The offence is committed where any person in or in connection with any judicial proceeding makes a false statement on oath concerning any matter which was material to the proceedings knowing the statement to be false or not believing it to be true. The offence of perjury carries with it a maximum sentence of ten years. There are substantial restrictions imposed by the legislation on a prosecution for perjury. Section 338 provides that a person is not to be prosecuted for perjury except by the Director of Public Prosecutions or at the direction of the Attorney General or by any other person with the leave of the judicial officer who constituted the tribunal before which the perjury is alleged to have been committed. 5Section 338(2) provides that if it is impossible or impracticable to apply for leave to prosecute in accord with subsection 1c the prosecution may be instituted with leave of the Supreme Court. The legislation further provides s 338(3) that a person is not to be prosecuted for perjury unless notice of the proposed prosecution has been given to the Director of Public Prosecution. The purpose of a statutory provision of the kind contained in s 338 is to prevent vexatious prosecutions. I shall in the final form of this decision give reference to authorities for that proposition. 6Following his loss in the District Court the applicant filed a summons in the Supreme Court seeking leave under s 338 of the Crimes Act 1900 to bring a private prosecution against the respondent for perjury. This claim related to the evidence the respondent had given before Delaney District Court Judge. The summons had originally named both the respondent and Cindy Wockner as respondents but the proceedings against Miss Wockner were discontinued. 7For completeness I should mention that following the unsuccessful District Court proceedings the applicant had filed a notice of motion on 6 May 2008 in the Court of Appeal. This sought a referral for legal assistance and an extension of the time within which to lodge a notice of appeal. On 16 June 2008 Justice Beazley dismissed the notice of motion of costs. The applicant then sought a review of that decision but on 8 September 2008 the Court of Appeal dismissed the applicant's notice of motion. 8It is also relevant to note that on 13 and 16 January 2009 the applicant had written to the Director of Public Prosecutions asking him in effect to commence proceedings for perjury against the respondent. On -- 9APPLICANT: Obviously you have all worked this out before I even come here today, right? You had your mind made up but bear one thing in mind I was not told to take this back to Judge Delaney, right? I wasn't told under s 338 -- WHEALY JA: Just have a seat. HANDLEY AJA: You haven't lost the case for that reason. You didn't lose before Justice Adams for that reason. APPLICANT: But I wasn't given the opportunity to go in front of Judge Delaney. I could have turned around and said to Judge apparently from what you're saying I could have turned around and gone to Judge Delaney and said look I want you to rehear this evidence as perjury. That's what you're saying and what the Act says. HANDLEY AJA: That's what the Act says, yes. APPLICANT: Yes but see all this was explained to me by the DPP in 2009 was that I had to go to the judiciary which I thought was here but then see -- WHEALY JA: No-one has criticised you for coming here. You're entitled to come here -- APPLICANT: Yeah but anyway I could have done this under a less what you call that. See I never even brought the action under 327S, right? HANDLEY AJA: That's what it was. APPLICANT: Yeah but he made a decision on it but I could have turned around and just brought it on a -- WHEALY JA: Anyway, look, I've given you a fair go so just give me a fair go and let me continue. APPLICANT: Yeah I know but I don't like how you have already written this up even before you listened to me. 10WHEALY JA: On 23 January 2009 the Director informed the applicant that since the matter had not been referred to him by the District Court judge or the police to consider perjury charges there was no basis upon which he was prepared to consider whether such a charge should be prosecuted. The applicant encountered a similar lack of success in the submissions made to the New South Wales Police. 11On 3 July 2010 the applicant notified the Director of Public Prosecutions in compliance with s 338(3) that he proposed to bring his own prosecution against the journalists. This brought a response from the Director to the effect that if the applicant were to bring such a prosecution he, the Director, would take over the prosecution and terminate it in accordance with his powers under s 9 and 10 of the Director of Public Prosecutions Act 1986. 12As I have indicated the primary judge -- 13APPLICANT: It's a conspiracy against me. WHEALY JA: Just have a seat. I want you to hear this. APPLICANT: I've heard all this crap. 14WHEALY JA: The primary judge refused leave and dismissed the applicant's summons on 16 September 2010. His Honour concluded that any trial for perjury against the respondent on the material placed before him was doomed to fail. He added that in his opinion the application was "a mere attempt to re-litigate the failed action against the newspaper and amounted to an abuse of process." The written submissions by the applicant suggested three possible bases for the grant of leave to appeal. The first point appears to be an allegation of bias against Adams J and for that matter against Delaney DCJ and judges of the Court of Appeal and the High Court of Australia. It is trite to say that an allegation of bias against a judicial officer is a serious allegation and for it to be considered there must be credible evidence to support the allegation. 15So far as bias is alleged against the primary judge, the applicant appears to rely on sections of the transcript where his Honour had been attempting to point out to the applicant that the test he was proposing to apply was whether the prosecution, if allowed, would prove to be futile. I do not consider that any part of this discussion indicates that his Honour had unfairly made up his mind to refuse leave to the applicant, or that he was doing anything other than making it clear to the applicant the proper legal approach that would be taken for the resolution of the issue before him. It is true that the primary judge on a number of occasions expressed his exasperation with the applicant's remarks and comments. But I do not see in any of the material I have read evidence that would establish that the judge was biased, or which would give a reasonable bystander any apprehension that his Honour was biased against the applicant. 16In his oral submissions today the applicant added to his written submissions. He complained about the use of the expression "mala fides" during some discussion in the transcript, but plainly this was not directed to the applicant but was in the context of a discussion about the actions of the Director of Public Prosecutions in stating he would terminate any proceedings if they were commenced. In addition, the applicant complained today about some comments made by his Honour at p 67 of the transcript where his Honour proffered the thought that it "would be hard to imagine the journalist would have had authority to enter into the transaction" and later, his Honour added, that he did not think that Judge Delaney thought the applicant had been "conned". Each of these matters, too, may be seen in their proper context as nothing more than remarks in passing made by the judge. His Honour made it quite clear that he did not have to decide anything in relation to either of those issues, they being matters that had been within the province of Judge Delaney to determine. 17The second broad basis of the applicant's submissions appear to be related to matters of fact considered by the trial judge, arising from the submissions and documents that had been placed before him. The possible occasions where perjury might be alleged may be summarised as follows: the controversy surrounding the issue as to precisely when the request for payment was first made; the controversy surrounding who it was who first mentioned payment by 60 Minutes and when; the controversy surrounding the question as to when the applicant spoke to Mr Bakir; the controversy as to who mentioned Percy QC; the issue as to whether the applicant made demands for the purchase of a number plate, and finally the issue of the applicant's parole details. It is fair to say that the applicant's submission in relation to each of these matters is that it was not dealt with satisfactorily by the primary judge. 18In my opinion, however, the primary judge examined each of the areas of contention very carefully and concisely. He was not satisfied that there was a real prospect of any of the alleged lies being established as such beyond reasonable doubt. It needs to be borne in mind that in a prosecution for perjury, a very serious criminal charge, the Crown must prove beyond reasonable doubt the following ingredients. First, that a statement has been made on oath. Secondly, that it has been made on oath in judicial proceedings. Thirdly, that the statement is false and fourthly, that it was made by the person to be charged, knowing that the statement was false or not believing it to be true. 19Finally, the Crown must prove beyond reasonable doubt that the false statement concerned a matter that was material to the proceedings, that is, it must be practically relevant to the proceedings. Matters going to credit can, of course, in certain situations be practically relevant to the proceedings. In addition to the proof of each of these essential ingredients beyond reasonable doubt, there needs to be corroboration. This means that to support a conviction of perjury there must be evidence which proves the falsity of the statement by at least two witnesses or by one witness who is corroborated. Thus it can be seen that a prosecution for perjury is not only a serious matter, it is quite difficult to prove the charge to the requisite standard. When regard is had to the need to prove each of the ingredients I have mentioned to sustain a conviction for perjury, it is clear that the applicant has failed to demonstrate in the present application that he has any reasonable prospects of success in the proposed prosecution. 20First, the primary judge's careful analysis of each of the alleged lies shows that there is no reasonable prospect of conviction for perjury in relation to it. Secondly, there is no substance in the applicant's broader claim the primary judge was biased, or that he was denied procedural fairness. In the latter regard, the only matter pointed to was the fact that the applicant claims to have been unaware that he might have issued a subpoena to require the respondent to attend the hearing for leave in order to be examined. Of course the applicant made no application for the issue of such a subpoena. He did, however, issue a subpoena for the attendance of Mr Barrett and did seek to cross-examine Mr Barrett as a witness. It could not be said, accordingly, that he was unaware of the necessary procedure. In any event, there would have been serious constraints upon any questions he might have put to Mr McIlveen, had the latter been required to attend for questioning. 21Another matter complained of in his oral submissions today was the assertion that Justice Adams had in some way decided the case on the basis of the DPP's decision not to prosecute and to terminate any prosecution if it were commenced. It is, however, perfectly clear from a fair reading of his Honour's judgment that his Honour expressly disavowed any intention to decide the application before him on that basis. Further, the applicant complained that Justice Adams, in effect, preferred McIlveen's evidence to his own, that is, to the applicant's evidence. Again there is nothing in his Honour's decision that shows that his Honour in any way undertook such a task and his Honour clearly appreciated that that was not the task before him. 22The remaining assertions alleging bias both in the Court of Appeal and the High Court of Australia merely serve to demonstrate in my view the appropriateness of the primary judge's remarks that the present proceedings are no more than a device to circumvent or override the decision of the District Court, a decision which has plainly led to the applicant's present dissatisfaction and sense of grievance. In my opinion the decision of the primary judge was clearly correct and the application for leave should be dismissed with costs. Those are the orders I propose. 23HANDLEY AJA: I agree. 24WHEALY JA: Those are the orders of the court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2011