Moss v McIlveen

[2010] NSWSC 1050

CITATION:	Moss v McIlveen [2010] NSWSC 1050 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 August 2010
JUDGMENT DATE :	16 September 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J
DECISION:	Leave refused. Summons dismissed with costs.
CATCHWORDS:	Application for leave -- private prosecution for perjury – necessity to show reasonable prospects of success – mere attempt to relitigate lost case.
LEGISLATION CITED:	Crimes Act 1900 ss 327 & 338 Director of Public Prosecutions Act 1986 ss 9 & 10
CATEGORY:	Principal judgment
PARTIES:	William Wayne Moss (aka William Walter Miller) (P) Luke McIlveen (D)
FILE NUMBER(S):	SC 2010/050095
COUNSEL:	In person (P) D R Sibtain (D)
SOLICITORS:	Self represented (P) Blake Dawson (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

THURSDAY, 16 SEPTEMBER 2010

2010/050095 WILLIAM WAYNE MOSS v LUKE McILVEEN

JUDGMENT

HIS HONOUR:

Introduction

1 The applicant William Wayne Moss, also known as William Walter Miller, commenced proceedings on 25 February 2010 by summons seeking leave under s 338(2) of the Crimes Act 1900 to undertake the prosecution, as a private individual, of Mr Luke McIlveen and Miss Cindy Wockner, who at the time of the matters alleged to give rise to the proceedings were journalists. On 28 May 2010 the applicant discontinued the proceedings in respect of Ms Wockner but still seeks leave to prosecute Mr McIlveen.

2 The applicant alleges that the defendant lied when he gave evidence in the District Court during proceedings bought by the applicant against Nationwide News Pty Limited for breach of contract. In brief, the applicant claimed that he had information as to how the marijuana came to be in the luggage of Schapelle Corby when it was searched at Bali International Airport, Indonesia, in 2004, she denying that it was hers or that she knew it existed before it was discovered. The applicant first spoke to Ms Wockner, a reporter on the Daily Telegraph, about his information and was referred to the Sydney bureau of the newspaper. Shortly after, he spoke with the defendant several times. He alleged that the defendant agreed that the newspaper would pay him $250,000 for his story and that, relying on that agreement, he then divulged the information that was later published on 27 and 28 July 2005. The applicant demanded payment of the alleged agreed amount on 28 October 2005 and then again on 15 February 2007 but no money was paid to him.

3 The applicant’s case against Nationwide News Pty Limited was heard in the District Court and on 31 January 2008 judgment was given in favour of the defendant plus costs. In addition to documentary material, oral evidence was given by the applicant (who was unrepresented) and the two journalists. The defendant’s evidence was of critical importance. He deposed, in effect, that there was no agreement to pay anything at all to the applicant; to the contrary, the applicant was told that he would not be paid anything for his information. In substance, the trial Judge accepted this evidence and rejected that of the applicant.

4 The applicant by notice of motion filed 6 May 2008 in the Court of Appeal, sought a referral for legal assistance and an extension of the time within which to lodge a notice of appeal. On 16 June 2008, Beazley JA dismissed the notice of motion with costs. The applicant sought a review of that decision but on 8 September 2008 the Court of Appeal dismissed his notice of motion.

5 In what follows, all references to evidence concern what was said in the District Court proceedings unless otherwise indicated.

Procedural background

6 On 13 and 16 January 2009 the applicant wrote to the Director of Public Prosecutions in effect asking him to commence proceedings for perjury against Ms Wockner and the defendant, setting out the basis for his claim that they had lied when giving evidence in the District Court. On 23 January 2009 the Director informed the applicant that, since neither a Judicial Officer nor the Police had referred the matter to him for consideration of perjury charges there was no basis for him to consider whether such a charge should be prosecuted. The applicant then contacted the New South Wales Police Force but was informed on 12 March and 26 June 2009 that the Police did not propose to take any action.

7 On 3 July 2010 the applicant notified the Director of Public Prosecutions in accordance with s 338(2) that he proposed to prosecute the defendant for alleged perjury. The Director informed him that he declined to prosecute the defendant for perjury and, in the event that the applicant did so, he would “take over the prosecution and terminate it in accordance with [his] powers under ss 9 and 10 of the Director of Public Prosecutions Act 1986”. The applicant informed me that he had provided the Director with the same material upon which he relied in his application for leave in this Court.

8 Neither the applicant nor the defendant gave evidence in the proceedings before me. The applicant provided a submission to which was attached the documents upon which he relied, comprising a heterogeneous collection of various pages of transcript from the District Court, pages from the judgment in that Court, correspondence and sundry other documents. During the proceedings it became clear that the applicant also relied on an affidavit filed 25 February 2010 to which was annexed more transcript and the defendant’s notes. The defendant’s counsel conceded that it was not necessary to refer to other pages of the transcript as qualifying or otherwise explaining the transcript upon which the applicant relied and, accordingly, I have not considered additional material, although it was annexed to an affidavit read by the defendant.

The legal test

9 The Crimes Act 1900 provides as follows –

327 Offence of perjury

(1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years.

(2) A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it.

(3) The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement.

(4) The question of whether any matter is material to a proceeding is a question of law.

10 Unlike the general run of offences, specific provision is made governing the ability of a private individual to prosecute for this offence –

338 Restrictions on prosecutions for perjury

(1) A person is not to be prosecuted for perjury except:


(a) by the Director of Public Prosecutions, or

(b) at the direction of the Attorney General, or

(c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.


(2) If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection(1)(c), the prosecution may be instituted with leave of the Supreme Court.

(3) A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions.

11 It is evident that the primary responsibility for prosecutions of this kind is entrusted to the Director of Public Prosecutions and the Attorney General. It seems to me that this is a relevant factor in determining whether leave should be given, the effect of which is to by-pass these public officers who would be bound to consider not only the question whether there were reasonable prospects of success but also the public interest, bearing in mind the considerable public expense of a jury trial and the fundamental objects of the criminal law, not to speak of the impositions on personal liberty that the processes of a criminal trial entail. These considerations are implicit in the powers entrusted to the Director by s 9 of the Director of Public Prosecutions Act 1986 to take over the conduct of private prosecutions (amongst others) and decline to proceed.

12 As has been mentioned, the Director in the present case has indicated that, were leave to be granted by the Court, he would exercise his powers under s 9 and decline to proceed. There is no suggestion that this decision has been affected by any irrelevant matter and, on the face of it, appears to be entirely within the Director’s discretion. Although there are good reasons for taking this matter into account, because of the terms of s 338 and also because, leave being discretionary, the Court will not make a futile order, I have not done so largely because the question is not settled and the application can be readily determined upon substantive grounds.

13 The test that I have applied to this application is to ask whether the envisaged prosecution has reasonable prospects of success. If not, it is inevitable that leave must be refused, though the reasonable prospect of success would not be sufficient, of itself, to justify leave in every case.

14 It is not enough, of course, that a particular statement is knowingly false or not believed to be true: it must concern a matter that is material to the proceedings. Moreover, to support a conviction for perjury, there must be evidence that proves the falsity of the statement by at least two witnesses or by one witness who is corroborated.

15 It should be noted that a grant of leave by no means suggests an opinion that the defendant is indeed guilty of the offence but only that there is a proper case for the applicant to be permitted to prosecute. Accordingly, an applicant gains no vindication of any kind from a grant of leave.

16 The applicant points to a number of specific subject matters in respect of which he seeks leave to prosecute for perjury. These are identified and briefly described seriatim below.

When was the request for payment made?

17 This issue concerns the evidence given by the applicant on the one hand and the defendant on the other as to the course of negotiations about payment. Some discussion of the context is necessary. The applicant deposed, in effect, the information which had been attributed to him in articles in the Daily Telegraph on 27 and 28 July 2005 was provided following a promise by the defendant, made during discussions about the matter, that he would be paid $250,000 for supplying it. He contended that, in light of his demand for payment, it would have been most unlikely that he would have provided that information before he had secured an agreement to pay for it.

18 Some days before these discussions, the applicant had spoken to Ms Wockner and told her, in substance, that he knew about the drugs in Schapelle Corby’s bag and was willing to admit to being involved in the drugs having been put there but not to name anyone else who was involved. He informed Ms Wockner that he wanted $250,000 for his story and a payment of $50,000 to $100,000 upfront as a “goodwill payment”. Ms Wockner testified that she responded that “newspapers don’t pay for stories, the Daily Telegraph doesn’t pay for stories”. She said that the applicant then responded to the effect, “Well, I could go to the TV stations if they pay for a story”. The applicant said that she did not tell him that the Daily Telegraph did not pay for stories and he had not mentioned taking his story elsewhere.

19 As mentioned, shortly after the applicant’s discussions with Ms Wockner, he spoke to the defendant. The defendant’s evidence was that, at first, the applicant did not ask for any money and he had “no idea” that he might be seeking payment for his story. He agreed that the information in the articles that was attributed to the applicant had indeed come from the applicant but deposed it was only after this information had been imparted that the applicant said that he would need $250,000 as he needed a new identity and to relocate, mentioning a new house and a new car. Later on he asked for $100,000 as an initial payment and the remainder of $150,000 to be paid later, as the defendant recalled it, not for the sum of $250,000 in actual cash. He said that the applicant told him that he had found a suitable mobile home and that he wanted the Daily Telegraph to purchase a number plate WWM 000 for him.

20 The defendant said that, when these demands were made, he responded that the Daily Telegraph would not pay him anything. He said that the applicant then told him, in substance –

“There’s nothing in it for me but a whole heap of grief, how do I know I wont end up with a bullet in my head from people I was working for. I originally wanted to help out because I didn’t think she should be in there but I need money to relocate. If you’re not going to help me then I’ll tell my story to 60 Minutes.”

The applicant said that the defendant had not mentioned 60 Minutes to him, although he was contacted by someone from A Current Affair and the suggestion as to 60 Minutes was made by that person.

21 Part of the material upon which the defendant relied comprised brief and very incomplete notes that he said that he had made during his conversations with the applicant. Although the first entry in those notes was “$250,000”, suggesting that the applicant’s demand was made at the very outset of discussions, the defendant said he only commenced making the notes when this amount was requested. He said there had already been a substantial conversation with the applicant about the information he was able to give and the material that was published had been divulged at that time. Under cross examination the defendant was asked (I think by the trial Judge) –

“Q So you knew at the very first time that you spoke to him, if you hadn’t known before from Ms Wockner, that he was seeking payment for the information that he had to give?
A Yes, yes.”

22 The applicant’s evidence was to the effect that, although he had provided some indication of what his story was about, he did not give the details that were published until after the defendant had agreed that he would be paid. He submitted that the fact that the amount of $250,000 is the first entry made by the defendant in his notes and the unlikelihood that he would provide the information for which he wanted to be paid before getting a promise of payment demonstrate that the defendant’s evidence that the demand for money was made after the disclosure must be a lie. He submitted that the passage set out above amounted to admission by the defendant that the demand for payment, as recorded in the notes, was made at the commencement of the conversation and not after he had provided his information.

23 In my view, the placement of the entry is no more than suggestive of the order of events and no safe conclusion could be based on the rationality or supposed state of mind of the applicant. The passage quoted is ambiguous as referring to the occasion, as distinct from the course, of the first conversation. The applicant’s account is uncorroborated and, at all events, there is no good reason to prefer his evidence to that of the defendant. It seems to me that this is simply an attempt to relitigate the case tried in the District Court.

Who first mentioned payment by 60 Minutes and when?

24 The applicant called a Mr Stephen Barrett (a journalist producer at the Seven Network) to give evidence in the proceedings before me. At the relevant time in 2005, he was a producer at A Current Affair for the Nine Network having earlier been a producer for 60 Minutes, also a Nine Network production. He said that he had a vague recollection of speaking to the applicant in 2005 about the Schapelle Corby case and suggesting that he might go to 60 Minutes if he wanted to get $250,000. It is clear from the way Mr Barrett gave his evidence that there was a deal of supposition involved and he was certainly not clear as to the date upon which it might have occurred, in particular, whether it happened on 26 July 2005, the day before publication (on 27 July) or on any other date about that time. As I understand it, the applicant points to an entry in the defendant’s notes for 26 July 2005 of Mr Barrett’s telephone number to establish that the suggestion about 60 Minutes was made via A Current Affair and not, as the defendant maintained, by him in the course of declining to pay for the story.

25 Mr Barrett told me, in substance, that he had a professional and personal relationship with the defendant, that there may well have been discussions about the applicant’s story but also about other matters, including personal ones. No conclusion can be reliably based upon a recollection stated to be vague and hedged about with supposition. Mr Barrett’s evidence does not advance the applicant’s case. Again, this amounts in substance to no more than a conflict of evidence with no good reason for preferring that of the applicant.

When did the applicant speak to Mr Bakir?

26 The newspaper reported that the applicant had earlier contacted a Mr Ron Bakir, who was described as a “former Corby supporter who had offered a $1 million reward for information before the former beauty student was convicted” and that the applicant had said that Bakir had told him “the reward didn’t stand so I had to look elsewhere”. The defendant was cross examined by the applicant about the applicant’s contact with Mr Bakir as referred to in the article. He asked –

“Q What date did I tell you that I contacted Ron Bakir?
A My recollection is that it was the evening of 26 July, before publication of this article.”

A further question by the applicant was interrupted by his Honour explaining that the question to the defendant was ambiguous and could have been asking him for either the last date that he (the applicant) spoke to Mr Bakir or when it was that he told the defendant about speaking to Mr Bakir. The applicant then asked –


“Q I put it to you that I did not tell you on the 26 ^th of the 7 ^th 05 that I spoke to Ron Bakir about the reward, is that correct?
A I reject that.

Q I put it to you the Ron Bakir information came from Cindy Wockner?
A I reject that. My recollection was that it came from you.”

27 The applicant tendered telephone records which showed, so far as the particular mobile number was concerned, there was no contact with Mr Bakir after 22 July 2005. In light of the ambiguity in the question, and hence in the answer, no safe conclusion as to the source of the defendant’s information about communications with Mr Bakir can be drawn, still less that the defendant lied. It is difficult to see the practical significance of this issue, which concerned the accuracy of a statement in the newspaper article and not the alleged agreement. Even as a matter of credit it was very peripheral indeed. At all events, the case mounted by the applicant depends, in substance, upon his uncorroborated testimony. Moreover, even if the defendant’s evidence was incorrect, it would not be proper to draw the inference that it was intentionally so or made without belief in its truth.

Who mentioned Percy QC?

28 The newspaper also reported the applicant as saying that he “called Corby’s Perth based barrister, Tom Percy QC, but was told his story had no credibility”. Under cross examination the defendant was asked by the applicant whether Mr Percy had told him that he “dismissed him as a hoax”. The defendant said that he did not and that, to his recollection, the passage quoted was “the transcript of a conversation with Cindy Wockner” (though whether this was a conversation with the applicant or Mr Percy was not clear).

29 However, when he was further cross examined about this subject matter on 1 November 2007 the defendant gave a different account –

“Q Paragraph 16, the last paragraph of that page, ‘he said he also called Corby’s Perth-based barrister, Tom Percy QC, but was told his story had no credibility’. Did I give you that information?
A Yes.

Q I put it to you that I never contacted Tom Percy until after this story was written, days after, is that correct?
HIS HONOUR: Well, what are you actually putting to him, you see? You are putting to him … as at that day that you’d contacted Tom Percy, that’s what you’re putting to him?
Plaintiff: Yeah.
Q I’m putting to you that I never told you that on that day?
A I reject that.”

30 It is true that the defendant’s evidence on this point is inconsistent but, in my opinion, that inconsistency cannot establish by itself that the defendant lied as distinct from making a mistake of recollection. Nor does the mere assertion by the applicant that he had not contacted Mr Percy until after the publication take the matter any further. There is no rational basis for preferring the evidence of the applicant to that of the defendant on the point. Again, this material would not justify a conclusion that the defendant had made an intentionally incorrect statement or one that he did not believe to be true. It is also of peripheral materiality, if any, to the issues in the trial.

Did the applicant demand a number plate?

31 Concerning the number plate, the applicant cross examined Mr McIlveen about an entry in his notebook in the following form –

“You come back to me with an amount

WWM 007

Victoria

William Wayne Moss”

The defendant agreed that the applicant had given him the name William Moss which was, as I understand it, already in the Daily Telegraph records connected with a telephone number that the applicant had given to verify his identity in relation to a car sale. The applicant confirmed the evidence in chief of the defendant that he (the applicant) had wanted the Daily Telegraph to purchase that plate. The applicant then showed the defendant a Victorian licence plate WWM 007 and put it to the defendant that he never asked for that number plate to be purchased for him. The defendant said –


“I reject that. He did ask me to buy it. As for the first part of the question I don’t recall seeing this number plate in any advertisement. The first I’d heard of it was when you demanded that the Daily Telegraph buy you this number plate.

Plaintiff: I put it to you that that number plate was the registration number of a car advertised for sale on the Daily Telegraph computer and that is how you got that number plate number. Is that correct?
A No, it’s not correct.”

32 An official search from Victoria Roads showed the purchase of plate WWM 007 on 25 September 2003 in the name of William Wallace Morrison, which was the name the applicant claimed that he used at the time. The applicant’s evidence was that he at no point mentioned the number plate, let alone asked for it to be purchased. He submitted that it would be most unlikely that he would have asked for it’s purchase when he already owned it and therefore the defendant’s explanation for the entry in his notebook (that the applicant had asked for it to be purchased for him) could not be true, whilst the applicant’s explanation, namely, that this information had already been obtained through the advertisement on the Daily Telegraph’s computer was the truth.

33 Although the applicant asserted that an advertisement for the sale of a motor vehicle in another name used by him specified the number plate of the vehicle as WWM 007, there was no evidence tendered before me that this was so and I am unaware whether any such evidence was tendered in the District Court; the mere assertion by the applicant that the advertisement did contain a reference to the plate does not establish the fact. The defendant said in the District Court that he did not recall seeing the number plate in any advertisement. It is certainly reasonable to doubt that the defendant’s recollection of a request for the purchase of the number plate is correct. However, much would depend upon the actual terms of the conversation with the applicant. In this respect, if the applicant spoke to him in the way he addressed me, there is every reason to apprehend the reasonable, indeed, likely, possibility of confusion. Nor could the reasonable possibility of the defendant’s confusion or mistaken recollection be excluded. This issue, at all events, was peripheral. The mere fact that the applicant owned the number plate at the material time could not corroborate his account.

The applicant’s parole details

34 The next matter raised by the applicant concerned evidence of his prison record. The article published on 28 July said –

“Miller’s [ie, the applicant’s] credibility was further shaken yesterday by revelations he was released from prison two years ago.

He was on parole in October last year, the time he claims to have been a player in the bungled drug deal that led to Corby’s arrest in Bali”.

[Towards the end of the article.] Miller was released from jail on parole on May 19, 2003.”

The defendant’s notes contain the entries, “Has been in jail” and “Got out of jail on parole when it all happened”.

35 In the District Court the applicant cross examined the defendant about this information. The commencing point was a reference in the latter’s notes to a particular telephone number which the applicant suggested to him was that of the media section of the Corrective Services Commission. The defendant answered that it might be. The applicant then asked him whether he had made inquiries about him with the Corrective Services Commission. The defendant said that he had done so because he (the applicant) had told him that he had been in jail. The defendant also said that the information about the applicant’s having been on parole came from the applicant and that although he had contacted Corrective Services about the applicant’s parole and custodial record, he only got “very limited information” and, in particular, did not obtain any dates or the information about October 2004. The applicant put it to the defendant that he had not given him any dates of his parole. The defendant said that it was his recollection that he had.

36 As I understand the applicant (and I found this difficult) he relies on his assertions that he did not give the defendant the dates mentioned in the latter’s notes and in the article. There is no rational basis upon which these assertions could be preferred to the defendant’s evidence, nor is there any corroboration for the applicant’s evidence. Nor am I able to discern any practical or substantial materiality of this evidence.

Conclusion

37 Any trial for perjury as alleged by the applicant on the material placed before me is doomed to fail. Leave must be refused. The summons is dismissed. The applicant is to pay the defendant’s costs. I should add that, in my opinion, the application was a mere attempt to relitigate the failed action against the newspaper and amounted to an abuse of process.

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22/09/2010 - Typo in spelling of name of defendant - Paragraph(s) Cover sheet