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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moss v McIlveen

Details

AGLC: Moss v McIlveen [2010] NSWSC 1050
Case: [2010] NSWSC 1050
Decision Date: 16 September 2010

CaseChat Overview and Summary

In Moss v McIlveen, the Court was asked to consider an application for leave to privately prosecute the defendant, McIlveen, for the offence of perjury. The plaintiff, Moss, sought to privately prosecute McIlveen following a previous civil case where McIlveen had given evidence that Moss claimed was false under oath. The case hinged on whether Moss could demonstrate that there were reasonable prospects of success in a private prosecution, given the previous civil outcome. The Federal Court was tasked with determining if Moss's application met the legal standards required for a private prosecution.

The court examined the necessity of showing reasonable prospects of success in a private prosecution, particularly in cases where the applicant seeks to relitigate a previously lost case. The legal issue was whether Moss's application was merely an attempt to relitigate the outcome of the civil case or if there were legitimate grounds for pursuing the perjury charge. The court considered the principles established in previous case law, which emphasised that a private prosecution should not be used as a tool for relitigation of old disputes.

The court held that Moss's application did not demonstrate reasonable prospects of success because it appeared to be an attempt to relitigate the outcome of the previous civil case rather than a legitimate pursuit of a perjury charge. The court found that Moss had not provided sufficient evidence to support the claim of perjury beyond what had already been considered and dismissed in the civil case. Consequently, the application for leave to privately prosecute McIlveen was denied. The court's decision underscored the importance of distinguishing between legitimate private prosecutions and attempts to relitigate lost cases.

Orders