Citation: The Application of Bernard Lewis Moore [2000] NSWSC 364
Court: Supreme Court of New South Wales (Criminal Division)
Date: 4 May 2000
Judge(s): Greg James J
Background
The applicant was convicted by a jury in November 1981, following a 39-day trial, of being knowingly concerned in the importation of heroin into Australia, contrary to the Customs Act (Cth) 1901. The prosecution case was that he had posted heroin concealed in envelopes from Malta to co-conspirators in Sydney. The applicant did not deny posting the envelopes but contested the mental element, arguing he did not know they contained heroin.
The applicant's appeal to the Court of Criminal Appeal in 1982 was unsuccessful, and the Crown's appeal against sentence was upheld. Some two decades after the conviction, the applicant sought a fresh inquiry into his conviction under s 474D of the Crimes Act (NSW) 1900, relying on evidence that emerged from the Royal Commission into the New South Wales Police Service concerning the conduct of police witnesses who gave evidence at his trial.
The applicant contended that revelations from the Royal Commission cast doubt on the credibility of Detective Ray Donaldson (later found to be corrupt) and, indirectly, of other officers from the same police unit. He sought referral of the whole case to the Court of Criminal Appeal under s 474E of the Crimes Act to be dealt with as an appeal.
Legal Issues
- Whether there was a "doubt or question" as to the applicant's guilt, or as to a part of the evidence, sufficient to warrant referral of the case to the Court of Criminal Appeal under s 474E of the Crimes Act 1900.
- Whether evidence of subsequent corruption by a police witness gave rise to a "sense of unease" or "disquiet" about the safety of the conviction.
- Whether the alleged corruption of Detective Donaldson provided an arguable ground of appeal capable of affecting the outcome of the trial.
Decision
Greg James J identified the applicable test for referral under s 474E: referral is only warranted where there is a "doubt or question" as to the convicted person's guilt, or as to a part of the evidence. Drawing on the established authorities, his Honour applied the "sense of unease or disquiet" standard and asked whether the corruption material could arguably ground an appeal capable of resulting in the conviction being quashed.
His Honour found that the prosecution case against the applicant had rested on a substantial body of circumstantial evidence, including the applicant's own admissions in the witness box, envelopes and postal receipts found in his home, and diary entries. The evidence of Detective Donaldson was corroborated by that of Inspector Leach and was adequately supported by the surrounding circumstances, including the applicant's own admission that he had forwarded the envelopes.
The court applied the principle, confirmed in earlier decisions including Robinson and Johns, that the mere fact of a police witness later being found to be corrupt does not, without more, necessarily cast doubt on the safety of a conviction at which that witness gave evidence. For the corruption to be relevant, there would need to be some basis for it tainting the specific evidence or conviction in question.
Having reviewed all the relevant evidence with the corruption material in mind, Greg James J found no doubt or question as to the applicant's guilt, and no doubt or question as to any part of the evidence that might raise an arguable ground of appeal. The application was refused.
Orders Made
- The application for referral to the Court of Criminal Appeal was refused.
Key Takeaways
- Under s 474E(2) of the Crimes Act (NSW) 1900, referral of a conviction to the Court of Criminal Appeal requires that it "appear" there is a doubt or question as to the convicted person's guilt, mitigating circumstances, or a part of the evidence in the case.
- Subsequent findings of corruption against a police officer who gave evidence at trial do not, without more, generate a "sense of unease or disquiet" about the safety of a conviction; the corruption must be capable of actually tainting the particular evidence or the specific conviction.
- Where a police officer's evidence is corroborated by other witnesses and supported by substantial independent circumstances, later corruption findings directed at that officer carry diminished weight on a referral application.
- A doubt or question as to a part of the evidence is only relevant to a referral application if that doubt is capable of producing a doubt as to guilt or of founding an arguable ground of appeal with a real prospect of affecting the result.
- Convictions supported by significant circumstantial evidence and admissions by the accused, independent of the impugned police evidence, are particularly resistant to referral applications based solely on later credibility attacks on individual witnesses.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW) 1900, ss 474D, 474E
- Customs Act (Cth) 1901, s 233B
- Criminal Appeal Act 1912 (NSW)
Cases:
- Varley v The Attorney General (1987) 8 NSWLR 30
- The Application of Douglas Harry Rendell (1987) 32 A Crim R 243
- Canellis v Slattery (1994) 33 NSWLR 104
- Mickelberg (1989) 167 CLR 259
- Vastag (CCA, unreported, 20 June 1997)
- Baartman (CCA, unreported, 30 June 1997)
- Hasenkamp (CCA, unreported, 24 February 1998)
- Robinson [1999] NSWCCA 186
- Johns [1999] NSWCCA 206