THE APPLICATION OF BERNARD LEWIS MOORE [2000] NSWSC 364

Supreme Court of NSW|2000-05-04|Before: Greg James J

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 it is contended that a doubt or question arises as to guilt, that the issue on such an application is whether or not there is "a sense of disquiet" or "unease" in allowing the conviction to stand. In this case, implicitly the application also asserts that a doubt or question arises as to a part of the evidence in the case, ie., that of those police officers. 4 In Canellis v. Slattery (1994) 33 NSWLR 104 Clarke, JA. referred to the power to confine an enquiry to a specific aspect of the trial. Section 474E(2) specifically refers to "any part of the evidence in the case". Hope, JA. in Varley (supra) found it difficult to sensibly apply that much of the statutory provision unless that portion of the evidence was such as to be critical to the formation of a doubt or question as to guilt. 5 By reason of s.474E(1)(b), on a referral of the whole case to the Court of Criminal Appeal by reason of such a doubt or question, it is to be dealt with as an appeal under the Criminal Appeal Act. 6 For my part, I would not consider that any question of referring the whole case to the Court of Criminal Appeal to be so dealt with would arise on such a basis unless that part of the evidence in the case in respect of which I might have a doubt or question was such as to produce a doubt or question as to guilt, or at least be arguably capable of founding a ground of appeal upon which the applicant could possibly succeed before that court in obtaining an order quashing the conviction and thus permitting the consideration of the making of an appropriate consequential order. I see no point in examining suggested doubts or questions as to parts of evidence which could not at least lead to matters capable of affecting the result of the trial.

The factual circumstances 7 Extensive written submissions have been provided by the applicant and a written submission in response by the Commonwealth Director of Public Prosecutions has been received. There appears to be little dispute over the primary facts. 8 The applicant was convicted after having been found guilty by the jury on 20 November 1981 following a trial lasting 39 days. It was alleged that he was knowingly concerned in the importation into Australia of the heroin by reason of having been complicit with a number of other persons in importing the heroin concealed in envelopes posted from Malta (where the applicant then resided), pursuant to a conspiracy whereby Desmond Bennion and Kenneth Harrison (co-accused) would send money to Malta and in return he would post the heroin to Australia. It is to be noted that the letters were to be posted to genuine addresses but the names to which the envelopes were addressed were fictitious. 9 There was evidence at the trial of the noting by the applicant of the addresses in his diary and of various telegram applications said to concern delivery of the heroin having been found in his home evidencing his relationship with telegrams sent to co-offenders. Additional identical envelopes to those used to forward the heroin were discovered in the applicant's home by Inspector Azzopardi of the Malta Police as were registered mail receipts from four different Sydney post offices. 10 At trial it was the applicant's case that he had in fact sent the letters as requested by Desmond Bennion but he did not know that there was heroin in each or any letter. He sought to explain the substantial financial dealings proved at the trial between himself and Desmond Bennion as an arrangement between them to go into lawful business together in purchasing a bar and contended that his working capital had been acquired as a result of earnings of his wife as a prostitute and of successful gambling on his part. He thus, only disputed the mental element of the offence. 11 As was pointed out by Street, CJ. on the applicant's appeal to the Court of Criminal Appeal (unreported 21 October 1982, p.2):- "There was, it should be added, a considerable volume of other very strong circumstantial evidence implicating Moore in the activities of the eight conspirators … and similar circumstantial but eloquent and persuasive evidence implicating Moore in the offence charged against him." 12 It should be noted at this point that the applicant sought leave to appeal on a ground of mixed fact and law concerning the trial judge's directions as to the applicant's character in the light of the applicant having raised at trial the illegal activities by which he explained the receipt of monies to which I have referred. That leave was refused. The Court of Criminal Appeal refused leave to appeal but upheld the Crown appeal against sentence.

The contested evidence 13 In addition to the circumstantial evidence to which I have referred, there was at trial challenged evidence of statements made by the applicant to police officers including Inspector Azzopardi, Inspector Leach and Detective Ray Donaldson (as he then was) both of the then recently formed Joint Drug Task Force. The applicant particularly refers to statements asserted by Inspector Azzopardi to have been made by the applicant to him:- "The way it is pointing at me, I am facing 20 years. Anything you might find now couldn't be worse than this to me." 14 Later:- "I think Des Bennion was hired and it backfired in his face." 15 These statements were allegedly made after the Inspector had located the envelopes, telegram application forms and diary to which I have referred. The Inspector also gave evidence that the applicant had admitted Bennion had given him the addresses but asserted they were in connection with horse racing tips supplied by a punter named H. Douglas. At trial the applicant asserted that the Inspector had falsified and manufactured his evidence. 16 Other statements were alleged to have been made by the applicant to Inspector Leach and Detective Donaldson and were contended by the applicant to be invented. In relation to the postal receipts, it was asserted the applicant had said that he had friends who wrote to him and that Desmond Bennion must have left them at his house. Also, relevantly, to the diary notes of the fictitious addresses:- "All I can say is that Des Bennion must have posted them and is trying to frame me."

17 He disputed this although agreeing he had said something about being set up by or being framed by Desmond Bennion. 18 In regard to an allegation that Desmond Bennion had told police that he had sent the applicant money for supplying heroin he said:- "Looks as though he has told you plenty." 19 To an allegation that he had sent the heroin to Australia, he allegedly said:- "Well, that is for you to prove, isn't it." 20 It will be noted that these are not outright admissions as might have been expected to be critical at the trial and that contemporaneous notes were made by all the police officers although the notes themselves were not tendered as unadopted. 21 There was further evidence from Inspector Leach and Detective Donaldson of conversations with the applicant as to monies he had in Malta and their source. 22 That evidence was disputed by the applicant and, in particular, that he had told Inspector Leach and Detective Donaldson that the monies he had in Malta came from his Sydney solicitor, at least in part and were the proceeds of the sale of a house in Sydney, that money having been surreptitiously transferred from Australia to Malta. Notwithstanding that the applicant denied ever telling Detective Donaldson and Inspector Leach that the money came from his Sydney solicitor, evidence was produced by the Crown at the trial from that solicitor that a sum of $17,000 was forwarded from the proceeds of the sale of a house and that the remittance was done openly.

The new material 23 The applicant contends that, by reason of material coming forward as a consequence of the Royal Commission into Police Services concerning the Joint Task Force into drug trafficking and Detective Donaldson in particular, a sense of unease or disquiet with regard to the applicant's conviction would now arise. The submission is couched, however, in fairly broad terms and I am content to deal with it on the basis that it includes, at least implicitly, a submission that a doubt or question has arisen as to a part of the evidence in the case (ie., the asserted oral confessions or statements to Inspectors Leach and Azzopardi and Detective Donaldson) such as to raise the prospect of an arguable ground of appeal by reason of the availability of "fresh evidence affecting at least the credibility of the officers" (see Regina v. Vastag (CCA, unreported 20 June 1997) and Regina v. Baartman (CCA, unreported 30 June 1997)). That seems to be the real ambit of the application and the submissions. In that regard, I have been referred to the Final Report of the Royal Commission, Volume 1, Corruption, May 1997, pp.184-187, in which the Commission, in consequence of a number of former members of that Force having given evidence to the Commission, criticised the Joint Drug Task Force as follows:- "Although it achieved a high conviction rate and not all of its members became involved in improper practices, the enquiries of this Royal Commission found that a large number of its operations were tainted by various forms of corruption, including:- • bribery in exchange for an offer for favourable treatment; • stings upon persons of interest where money was received in exchange for offers of assistance which was then not provided; • process corruption in its many facets where in more than one instance, people were convicted on the basis of evidence which was improperly obtained or fabricated; • opportunistic larceny of money and property located during the course of searches; and • possible collusion to thwart investigation by outside agencies, or to assist those under investigation." 24 Although both Detective Donaldson and Inspector Leach were members at the relevant time of that Force, the issue of any doubt or question either as to the applicant's guilt or as to any part of the evidence as raising a ground of appeal is not to be resolved by those general reflections nor would the matters referred to, occurring in other cases much later in time, found an argument of a relevant culture of corruption at the time here in question. 25 However, further and particularly, criticism was made of Detective Donaldson on the basis that amongst the material adverse to Detective Donaldson produced to the Royal Commission were the following:- "(a) allegations by another police officer that Detective Donaldson and others had corruptly received money located during a police raid on a drug suspect (Operation Pickup): see evidence of Detective Haken, Annexure E; (b) allegations that Detective Donaldson, together with Inspector R. Lysaught and others, received $100,000 from a Mr. Murphy, ostensibly on the basis that Mr. Murphy would not be investigated over his involvement in a major drug importation (Operation Tin): see evidence of JTF7, Annexure F; (c) allegations that Detective Donaldson had improperly liaised with other officers suspected of corruption regarding Operation Tin and had accessed a record of interview made by a fellow officer before giving evidence about the matter before the National Crime Authority: see evidence of JTF6, Annexure G; (d) alleged perjury in a trial of a number of suspected drug importers: see evidence of JTF8, Annexure H; (e) involvement in the manufacture of false evidence and acquiescence in the giving of false evidence by officers under his command; (the Paynter matter): see evidence of TJF14 and Royal Commission into the New South Wales Police Service summary, Annexure J; (f) corruptly receiving stolen property: see evidence of Detective Haken, Annexure K; (g) conspiring with Detective Ray Southwell to defraud the New South Wales Police Service regarding repairs allegedly required to be made to Detective Donaldson's police car: see evidence of Detective Haken and JTF6, Annexure L; (h) falsely claiming in evidence to the Royal Commission into the New South Wales Police Service that he had supported the objects of the Royal Commission since the disclosure of major corruption in the early stages of the Royal Commission: see evidence of Detective Donaldson, pp.12,852-3 and 13,069, Annexure M; (i) acquiescing in or directing the alteration of evidence to be relied upon by the Crown in a criminal trial: see evidence of JTF7, Annexure N; (j) directing officers under his command to produce false statements and give false evidence in a trial: see evidence of JTF10, Annexure O; (k) conspiring with other police officers in 1986 to fabricate a record of interview with a woman suspected of having participated in an importation of prohibited drugs: see statutory declaration dated 21 November 1999 and Mario Zanatta, Annexure P." 26 This summary is taken from the applicant's submissions and includes the references to the material with which I have been provided in support of each item. 27 I am content to deal with the submission on the basis that the cited material supports the items of criticism and that it would be sought to utilise that material on appeal as evidence affecting the credibility of Detective Donaldson at least as material on which it would be sought to cross-examine (notwithstanding it came into existence and related to events much later than the relevant times). 28 The submission concedes that little information was forthcoming during the proceedings of the Royal Commission that was adverse to the integrity of Inspector Leach. The only material to which I was referred was an assertion by a well-known criminal to the effect that he personally paid money to Inspector Leach when Inspector Leach was a member of the Armed Hold Up Squad. That assertion does not seem to have been the subject of any corroboration or acceptance by the Commission. It is not directly or even peripherally related to the subject matter of the present application. 29 The applicant's submission refers also to evidence that had been given against other co-accused at the applicant's trial by other Joint Drug Task Force officers who were the subject of adverse particular mention in the Royal Commission.

The contended effect of the new material 30 It is submitted that the revelation of Joint Drug Task Force systemic corruption renders all cases in which disputed confessional evidence was given now open to doubt and that, although it is conceded that there was a powerful circumstantial case against the applicant, even if one were to disregard the confessional material, nonetheless the disputed confessional material is such that in the circumstances, unease or disquiet about the applicant's conviction (and, I imply, a question or doubt concerning any part of the evidence, that is, the confessional evidence) arises. It is submitted that it is not open "to simply disregard the confessional evidence and rely upon the other evidence of a circumstantial nature". 31 It is submitted that if the evidence now brought forward by the Royal Commission of Detective Donaldson's asserted subsequent corruption had been available to the applicant at the time of his trial, then there is a reasonable likelihood that he would have been acquitted. Such an assertion embodies the proposition that Detective Donaldson's evidence would have been rejected or doubted and that the balance of evidence might have left a reasonable doubt. 32 The Director points out that the "confessional" evidence really constituted rather a series of false explanations and that the only role performed by Detective Donaldson was corroborative of the activities and evidence of Inspector Leach. It is submitted that having regard to the usual principles to be applied by the Court of Criminal Appeal on a "fresh evidence" ground (see Regina v. Mickelberg (1989) 167 CLR 259), as the material now proffered neither relates to the particular case nor to the activities of Detective Donaldson and the Joint Drug Task Force at the relevant time but to events much later, and that Detective Donaldson was merely a minor corroborative witness, that the relevant tests for its admissibility on appeal would not be met and hence no relevant question or doubt raised such as would warrant a referral.

Criteria for admissibility of the new material 33 Subsequent to the Royal Commission, a body of jurisprudence has grown up concerning the appropriate course to be taken by a Court of Criminal Appeal on a "fresh evidence" or "unsafe and unsatisfactory" ground arising from the assertion of corrupt behaviour as revealed in the Commission by police either directly relevant to the issues in a particular case or as said to affect the credibility of police officer witnesses. 34 Many of the cases in which the court has examined the topic are to be found collected in Vastag (supra); Baartman (supra); Regina v. Hasenkamp (CCA, unreported 24 February 1998); Regina v. Robinson [1999] NSWCCA 186 and Regina v. Johns [1999] NSWCCA 206. It is not necessary to review the principles explicitly here. 35 As I pointed out in Johns (supra), assertions that later corruption would, years after the event, be considered as materially affecting credibility run into severe problems. It is also necessary to have regard to the importance of the relevant evidence to the conviction. (See Vastag (supra.) 36 In this case, Detective Donaldson's evidence is corroborated by that of Inspector Leach and adequately supported by the other circumstances, including the admission by the applicant of his forwarding the envelopes.

Conclusion 37 It is not enough to assert Detective Donaldson was later asserted to be or was found to be corrupt. For there to be an arguable ground of appeal or a sense of unease or disquiet about the conviction, there would need to be some basis for regarding that corruption as capable of raising such a ground or as capable of tainting the particular conviction by, eg., impugning the other evidence such as that of Inspector Azzopardi and Inspector Leach or casting doubt on the applicant's admissions in the witness box and the other circumstances proved in evidence, which gave rise to the substantial circumstantial evidence case against him. No such matter is raised. 38 As was pointed out in Johns (supra) and Robinson (supra), the mere fact that one of the police officers who gave evidence was later found to be corrupt is no basis for necessarily doubting the safety of a conviction at a trial at which that officer gave evidence. 39 Having regard to those principles, I have read the relevant evidence of the three police officers and the applicant with the asserted matters of corruption in mind. On a consideration of all the evidence, as I have referred to, and those matters, I do not consider that there is a doubt or question as to the applicant's guilt of the offence with which he was charged nor do I consider that there is a doubt or question as to a part of the evidence such as might raise an arguable ground of appeal were the matter to be referred to the Court of Criminal Appeal pursuant to s.474E(1)(b). 40 The application is refused.

Last Modified: 09/25/2000 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.

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

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

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