THE APPLICATION OF BERNARD LEWIS MOORE - [2000] NSWSC 364

Reported Decision: [2000] 112 A Crim R 331

New South Wales

Supreme Court

CITATION: THE APPLICATION OF BERNARD LEWIS MOORE [2000] NSWSC 364

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC No. 70090 of 1999

HEARING DATE(S): Thursday 4 May 2000

JUDGMENT DATE: 4 May 2000

PARTIES :

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
v. MOORE, Bernard Lewis

JUDGMENT OF: Greg James J at 1

COUNSEL : Crown: F. Veltro (Sol)
Applicant: D. Barrow (Sol)

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
Applicant: Legal Aid Commission

CATCHWORDS: Application for reference to Court of Criminal Appeal - doubt or question as to guilt or part of evidence - conviction many years old - asserted fresh evidence - principles for referral - "sense of unease" or "disquiet" in allowing conviction to stand - alternatively whether arguable ground of appeal raised.

LEGISLATION CITED: Crimes Act (NSW) 1900
Customs Act (Cth) 1901
Criminal Appeal Act 1912

CASES CITED: Varley v. The Attorney General (1987) 8 NSWLR 30
The Application of Douglas Harry Rendel (1987) 32 A. Crim. R. 243
Canellis v. Slattery (1994) 33 NSWLR 104
Vastag (CCA, unreported 20 June 1997)
Baartman (CCA, unreported 30 June 1997)
Mickelberg (1989) 167 CLR 259
Hasenkamp (CCA, unreported 24 February 1998)
Robinson [1999] NSWCCA 186
Johns [1999] NSWCCA 2-6

DECISION: Application refused

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 70090 of 1999

GREG JAMES, J.

THURSDAY 4 MAY 2000

THE APPLICATION OF BERNARD LEWIS MOORE

The application

1 HIS HONOUR: Application has been made by Bernard Lewis Moore under s.474D of the Crimes Act (NSW) 1900 for an enquiry into his conviction on a charge of being knowingly concerned in the importation into Australia of heroin contrary to the provisions of s.233B of the Customs Act (Cth) 1901. The application is made in consequence of evidence that came forward before the recent Royal Commission into the New South Wales Police Service affecting, it is submitted, directly, the credibility of one of the witnesses at the applicant's trial and, indirectly, the credibility of that witness and another witness, both of whom gave evidence against the applicant by reason of their membership of a police unit said to be corrupt. It is submitted that what was revealed by the Royal Commission is such as to cast doubt on the conviction.

Object of the application

2 It is sought that the whole case be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 pursuant to s.474E of the Crimes Act. Section 474E(2) provides that such a referral may only be made "if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". 3 It has been held in Varley v. The Attorney General (1987) 8 NSWLR 30 and in The Application of Douglas Harry Rendell (1987) 32 A. Crim. R. 243, where…

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.

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Details

Case: [2000] NSWSC 364
Decision Date: 4 May 2000

CaseChat Overview and Summary

In the case of the Application of Bernard Lewis Moore, the applicant seeks a reference to the Court of Criminal Appeal to challenge his conviction for a serious crime committed many years ago. The application was made on the basis of fresh evidence, which the applicant claims, if accepted, would cast doubt on his guilt. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the applicant's case warranted a reference to the Court of Criminal Appeal due to fresh evidence that allegedly undermines the conviction. The court had to determine whether the fresh evidence was such that it would create a reasonable doubt about the applicant's guilt, or if there was an arguable ground of appeal that could be successfully pursued.

The court carefully examined the principles governing references to the Court of Criminal Appeal, particularly focusing on the need for a "sense of unease" or "disquiet" in allowing the conviction to stand. It considered whether the fresh evidence presented by the applicant was credible and whether it would likely result in the conviction being quashed or the case being remitted for re-trial. Additionally, the court assessed whether there were any arguable grounds of appeal that had not been previously considered and that could be successfully argued before the Court of Criminal Appeal. After thorough consideration, the court concluded that the fresh evidence did not create a sufficient sense of unease or disquiet to warrant a reference to the Court of Criminal Appeal. Furthermore, the court found that there were no arguable grounds of appeal that had not already been considered and rejected.

The court dismissed the application and denied the reference. This decision was based on the court's assessment that the fresh evidence did not meet the necessary threshold to warrant a referral and that no new or overlooked grounds of appeal were present. The applicant's conviction remains in place, and the court's decision stands as a definitive ruling on the matter of the application.

Orders