R v Baird [2002] NSWCCA 460 | Case summary

Wednesday, 30 October 2002 REGINA v PAUL RAYMOND BAIRD Judgment 1 BEAZLEY JA: The appellant appeals against his conviction for an offence under s 61J of the Crimes Act 1900 (NSW), that, on or about 12 May 2000 at Wickham in the State of New South Wales, he did have sexual intercourse with Cherie Patricia Sloan without her consent knowing that she was not consenting, and at the time threatening to inflict actual bodily harm on her by means of an offensive weapon, namely, a knife. The offence carries a penalty of a term of imprisonment for twenty years. 2 The appellant had been indicted on four counts in total. In addition to the count which is the subject of this appeal, he was indicted on another count under s 61J involving an offence against one Lisa-Jane Ellen Barbour, and further on a count that he stole a sum of money and other items from Lisa-Jane Ellen Barbour, being an offence under s 94 of the Crimes Act. The fourth count involved a charge of stealing from Cherie Patricia Sloan under s 94 of the Crimes Act. 3 The charges were heard before Job QC ADCJ and a jury. The jury returned a verdict of guilty on both s 61J counts and upon the s 94 count insofar as it related to Lisa-Jane Ellen Barbour. The jury returned a verdict of not guilty on the s 94 count insofar as it related to Cherie Patricia Sloan. 4 The appellant has appeared before this Court in person. He presented to the Court written submissions and in addition made oral submissions. There were also admitted into evidence during the course of the appeal five statutory declarations made by the appellant on 18 August 2002 and he was cross-examined on those statutory declarations. In reply to that evidence the Crown read an affidavit of Constable Chris Wiedemann sworn 28 October 2002 and Mr Baird cross-examined Constable Wiedemann. 5 The appellant advanced three bases upon which he submitted his conviction on the s 61J count insofar as it related to Ms Sloan should be quashed. The first basis was that because the jury disbelieved Ms Sloan on the stealing charge, she ought not to have been believed on the s 61J sexual assault charge. In other words, given the inconsistent verdicts insofar as they related to counts involving Ms Sloan, the s 61J conviction was unsafe. In our opinion, the appellant has not made good that challenge. Clearly the jury did not believe Ms Sloan or the other evidence called in support of her case insofar as she alleged that the appellant had stolen money and other items from her. However, the s 94 charge was of a very different nature to the sexual assault count under s 61J. In many ways it might be considered as an ancillary charge to the main s 61J charge in the sense that it was a charge in respect of alleged conduct which occurred after the s 61J count and, as we have said, it was of an entirely different nature. 6 As far as the s 61J count is concerned, the Crown case was based not only on the evidence of Ms Sloan but on other substantial objective evidence. That evidence included the evidence of the service station proprietor to whom Ms Sloan reported immediately after the incident who observed the scratching or cuts to the back of her neck and also to the evidence of Ms Stanton who gave evidence of having seen the complainant on the night of the offence in a dishevelled state. 7 Perhaps even more significant, however, is that there was evidence which supported Ms Sloan's evidence that she had been tied up with tape during the course of the assault. That evidence included the fact she was seen to have a sticky substance on her wrists and she identified grey tape found in the appellant's car. The evidence of being tied up with grey tape was part of the case presented by the Crown under s 97 of the Evidence Act 1995 (NSW) as tendency evidence, given that the complainant in the first s 61J count, Ms Barbour, also gave evidence of having been tied up with grey tape. There was no evidence that Ms Sloan knew about the assault or the manner of the assault on Ms Barbour at the time she made her complaint of the assault including having been tied up with the tape. 8 The law on inconsistent verdicts is now well traversed: see MacKenzie v The Queen (1996) 190 CLR 348, Jones v The Queen (1997) 191 CLR 439 and Regina v Markuleski (2001) 52 NSWLR 82. It is not necessary for us to canvass that law in any detail. 9 I am of the opinion, having regard to the matters to which I have just referred, that the guilty verdict under the s 61J charge and the not guilty verdict on the s 94 charge, insofar as they relate to Ms Sloan, do not represent an affront to logic and commonsense and do not indicate there has been any compromise of the performance of the jury's duty. There is no basis, therefore, for this Court to interfere so as to prevent a possible injustice: see MacKenzie v The Queen at 365 per Gaudron, Gummow and Kirby JJ. 10 I might just add there were other significant distinguishing features between this case and a case such as Jones, but the real point of differentiation, in my view, is that different evidence, including different supporting evidence was given in respect of each count. 11 The second challenge which is made to the verdict might be summarised as saying that there was an unfairness in the presentation of the evidence in the case. The appellant suggests this unfairness was demonstrated in a number of respects, for example, the car in which the assault is alleged to have taken place was effectively made unavailable to him and his legal advisers so that he could not have any of his own forensic testing carried out on it. He indicates that the forensic testing that he might have wished to have carried out was in relation to possible blood stains in the car, given the complainant alleged that her tooth was broken in the course of the assault and that it cut through her lip. I understand the submission to be that it must follow, therefore, there would have been some blood of hers in the car. I do not see that this necessarily follows at all. In any event, I do not see it would have made any difference to the case. As I have indicated, in respect of the previous ground the objective evidence in the case was very strong and I do not see there has been any unfairness in the car being unavailable. 12 It was also pointed out in the written submissions that the unavailability of the car was only raised at a very late point, I think during the course of the second trial, by which stage it would have been of little value. 13 The appellant also relied upon some inconsistency of evidence in relation to the complainant's allegation that her tooth was broken. The expert evidence, however, was that it was a filling in her tooth which was broken, not her tooth. I consider it to be of no relevance at all. The photographs taken of the complainant shortly after the assault show some breaking of a tooth, whether that be properly described as a broken tooth or a broken filling, I think it of no moment and therefore no unfairness followed. 14 There were other complaints made, for example, apparently a condom was lost for a significant period of time, in the order of something like six months, and DNA testing therefore could not be done on that until after that period of time. 15 An additional complaint is made that the appellant's permission to conduct DNA testing on the condom was not obtained. Again, no unfairness flows from this. The appellant has given blood samples consensually which he knew were to be subjected to DNA testing. He does not contest the result of the DNA testing on the condom. There is no requirement at law that once appropriate DNA matching material is obtained consensually from a person that that person's consent is then needed to conduct DNA testing on other evidence. 16 He also complains there was an inconsistency in evidence about whether an orange-handled knife was used or not. Again, in my opinion, that was a jury matter. There was very early evidence that the complainant exhibited marks which appeared to be cutting marks from a sharp instrument on her neck within less than an hour of the alleged assault. The jury were entitled to deal with her evidence as to whether it was an orange-handled knife and assess that evidence against the other evidence in determining whether or not the charge as laid was made out. 17 The third point made is that Ms Sloan, another Crown witness, Ms Stanton, a friend of Ms Sloan's, and the police, particularly Constable Wiedemann, fabricated evidence in the case. The allegation of the fabricated evidence related to the stealing count under s 94. Essentially the point made was that the complainant was not believed in respect of her allegation that her jewellery and other items were stolen, therefore that evidence was fabricated. 18 It was then alleged that Constable Wiedemann who took Ms Sloan's statement was involved thereby in the fabrication and that in some way made the verdict under the s 61J count unfair and therefore liable to be quashed. Merely to state the reasoning is, I believe, sufficient to demonstrate its illogicality. There is no denying that the jury did not believe Ms Sloan's evidence in respect of the s 94 count but that does not in any way implicate Constable Wiedemann. He took statements. In his cross-examination he conceded that he made a mistake in his affidavit but even the appellant was prepared to concede during the course of his submissions that that mistake may have been no more than a confusion as to the dates. 19 Having read his evidence in the affidavit, having heard his evidence and having read the statements of Ms Sloan and Ms Stanton, which are exhibit A on the appeal, I are not satisfied there was any fabrication by Constable Wiedemann or any involvement in any fabrication of the evidence. 20 For these reasons, I am of the opinion that the appeal should fail and should be dismissed. 21 SPERLING J: I agree with Beazley JA. 22 CARRUTHERS AJ: I also agree. 23 BEAZLEY JA: The order of the Court is that the appeal is dismissed.

R v Baird

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