Regina v Garry Andrew Bayliss [2001] NSWSC 732 | Case summary

[4] That on 31 December 1997 he threatened to murder Ronald Allen Bates, being then a witness in the pending proceedings in the Newcastle District Court, to which earlier reference has been made. Such an offence contravenes section 326(2) of the Crimes Act . It attracts upon conviction a statutory maximum penalty of imprisonment for 2 years. It is an indictable offence; but Table 1 of Schedule 1 of the Criminal Procedure Act applies to it with the consequences earlier noted in connection with the charge numbered [1] above. 6 The Director of Public Prosecutions took over, pursuant to the Director of Public Prosecutions Act 1986 (NSW) the prosecution of the first and fourth of the charges summarised above. The Director did not take over the prosecution of the second and third of those four charges. 7 The Director of Public Prosecutions did not elect for trial on indictment of the first and fourth charges. Mr. Bayliss, however, elected that those two charges be dealt with on indictment; and various procedural orders were made in that connection. 8 On 7 May 1998 the Director of Public Prosecutions sought leave of the Local Court at Gosford to withdraw the first and fourth charges. Mr. Bayliss was then legally represented. His legal representative objected strenuously to the granting of permission for the withdrawal of the two charges. The learned Magistrate then presiding heard extensive submissions from both the representative of the Director of Public Prosecutions and Mr. Bayliss' own legal representative. For reasons which it is not now necessary to canvass in detail, the learned Magistrate refused the Director of Public Prosecutions leave to withdraw the two charges. The Director thereupon informed the learned Magistrate that he was not proposing to offer any evidence in connection with either of the two charges. The learned Magistrate made thereupon formal orders discharging Mr. Bayliss, pursuant to section 41 of the Justices Act 1902 (NSW), in relation to those two matters. 9 The second and third of the four charges which I have earlier herein summarised, both of them being simple, summary offences, were dealt with subsequently in the Local Court. It will be necessary to say, presently, something more in that regard. 10 Before doing so, it is convenient to note that Mr. Bayliss now contends that his discharge upon the first and fourth of the four charges entails that he could not lawfully be tried upon the remaining two summary offences. His point, put simply, is that he was entitled to have upheld in connection with both of the summary offences a plea of autrefois acquit. 11 In my opinion, Mr. Bayliss' contention is erroneous in law. Once he elected to have the two charges tried upon indictment, the Local Court ceased to have jurisdiction to deal with the matters in any other way than by embarking upon a committal hearing, being an administrative inquiry directed, not to the resolution of the question of guilt or innocence, but to the decision of the very different question whether there ought in fact to be a trial by Judge and jury. The relevant principles which became, thereupon, applicable in connection with the present contention of Mr. Bayliss are summarised conveniently and as follows in the judgment of Olsson J in R v Potter & ors. (1984) 14 A Crim R 204 at 204: "It is, of course, trite to say that the defence of autrefois acquit can only arise where a defendant has been in peril of conviction and there has been a dismissal by a court clothed with the jurisdiction to hear and determine the charge or charges: Mitchell v Berry (1922) 22 SR (NSW) 363; O'Loughlin, ex parte Ralphs (1971) 1 SASR 219. Such a circumstance cannot arise in the context of a mere preliminary examination: McLellan v Allchurch [1925] SASR 256 at 260; Woodhouse [1919] VR 736 at 740." 12 The two summary matters eventually proceeded to a hearing in the Local Court at Gosford on 24 September 1998. The learned Magistrate then presiding found both defences proved. I do not have a transcript of the proceedings in the Gosford Local Court; but the submissions put in by Mr. Bayliss in connection with his present application suggest that he was given, I presume in respect of each offence, what Mr. Bayliss describes as "a two year good behaviour bond". 13 Mr. Bayliss appealed to the District Court. His appeal came on for hearing on 27 August 1999 before Judge Nield. I do not have a transcript of those proceedings, but I do have a transcript of the judgment delivered by Judge Nield. 14 Judge Nield dismissed both appeals. His Honour confirmed the Magistrate's convictions. In respect of each matter, his Honour deferred passing sentence upon Mr. Bayliss and directed his release upon his entering into a recognisance pursuant to section 558 of the Crimes Act, himself in the sum of $1,000 without surety, to be of good behaviour for a period of 2 years from 27 August 1999; and to appear to receive sentence for any breach of that recognisance. His Honour made it a term of the recognisance that Mr. Bayliss not approach or contact in any way whatsoever Mr. Bates or two other named persons, or any member of the family of any one of the three named persons. His Honour made a consequential order for costs. His Honour issued an apprehended domestic violence order for the protection of Mr. Bates, imposing in that connection the statutory prohibitions and restrictions upon Mr. Bayliss for a period of two years from 27 August 1999. 15 Judge Nield exposed with complete clarity, if I may respectfully say so, and as follows the essential process of reasoning that led his Honour to deal with the appeals in the way that I have earlier described: "As I pointed out to Mr. Bayliss today, there was one incident and there were two versions of that incident. However, one person's version of that incident was confirmed by an eyewitness who knew neither of them. That eyewitness was Mr. Morrison. He gave a statement to police. As I have mentioned already, his statement is exhibit 2. His statement confirmed the version of the incident given to police by Mr. Bates and it confounded the version of the incident given to police by Mr. Bayliss. It does not surprise me, therefore, that if Mr. Morrison gave evidence to the Magistrate similar to what he said in his statement, the Magistrate would have accepted the version of the incident given by the complainant Mr. Bates and, as a result of which, he would have found Mr. Bayliss to be guilty of both offences. I have seen Mr. Bates give evidence. I have seen Mr. Bayliss give evidence. Mr. Bates was other than demonstrative. Mr. Bayliss was particularly demonstrative. Mr. Bates seemed to me to be giving evidence of the incident as best his memory remembered it. Mr. Bayliss seemed to me to be giving evidence of the incident as he wished it was, rather than as his memory remembered it to be. I accept without reservation or qualification the evidence of Mr. Bates and I reject the contrary evidence of Mr. Bayliss. Upon that basis I could find Mr. Bayliss to be guilty of both offences. But there is more and I have referred to it. It is the evidence of Mr. Morrison contained in his statement which confirms beyond doubt the allegations of the complainant Mr. Bates. His evidence is, therefore, in a sense, the icing on the Crown's cake, the icing on Mr. Bates' complaint. It satisfies me to the point of being convinced that Mr. Bayliss assaulted the complainant Mr. Bates without warning, provocation or cause. The assault upon Mr. Bates by Mr. Bayliss constituted a breach of the apprehended domestic violence order. Thus the Magistrate was bound to find that offence proved. I am satisfied that both offences were proved. The Magistrate was correct to find Mr. Bayliss to be guilty of both offences. I find him to be guilty of both offences." 16 Judge Nield is recorded, in the transcript of his Honour's judgment, as having told Mr. Bayliss that he would be taken into custody temporarily and until he had entered formally the recognisances ordered by his Honour. Mr. Bayliss was asked whether he understood what he had thus been told; and according to the transcript he made no verbal reply. What then occurred is best described by reproducing the following material from page 9 of Judge Nield's remarks on sentence: " ADDENDUM On 27 August 1999 the appellant refused to sign the recognisance. On 30 August 1999 the appellant appeared before her Honour Judge Sidis and again he refused to sign the recognisance. Her Honour remanded the appellant to appear before me on 31 August 1999 at the Court in the Downing Centre, Sydney. On 31 August the appellant appeared before me. He refused to answer every question that I asked him. Accordingly, I revoked the order made 27 August 1999 deferring sentence and I sentenced the appellant as follows:- As to the assault offence Appellant sentenced to imprisonment for a fixed term of 3 months to commence on 27/8/99 and to expire on 26/11/99. As to the breach AVO offence Appellant sentenced to imprisonment for a fixed term of 6 months to commence on 27/8/99 and to expire on 26/2/2000 on which date to be released. Each sentence to be served concurrently. Issue of AVO confirmed." 17 I am wholly unable to see that there is any legitimate 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". The submissions made by Mr. Bayliss in connection with his present application do not submit that Judge Nield misapprehended or misunderstood or misquoted the evidence given before his Honour. The submissions do not assert, let alone assert and explain, that Judge Nield was not entitled to assess the comparative credit of the witnesses in the way in which his Honour did make that assessment. His Honour explains with complete clarity why he preferred the version given by Mr. Bates to the version given by Mr. Bayliss. I am wholly unable to draw out of the material at present available to me any reason to think that Judge Nield was not entitled, as the tribunal of fact, to prefer the one version to the other. 18 On 27 August 1999 Judge Nield dealt with a further matter which Mr. Bayliss sought to bring before his Honour. It is sufficient in that connection to set the scene by quoting the following extracts from his Honour's judgment: "The application that he makes is said to be pursuant to s 24 of the Criminal Procedure Act. To understand the application, it is necessary to review what occurred. On 28 February 1994 Mr. Bayliss appeared in this Court to stand trial. The Crown Prosecutor presented an indictment against Mr. Bayliss. The indictment charged Mr. Bayliss with a count of indecent assault upon a child. Mr. Bayliss was represented by a barrister. Mr. Bayliss entered a plea of guilty to the charge. Moreover, Mr. Bayliss signed a document, then known as a Form 2 document, under the Criminal Procedure Act. That document referred to two additional charges. Each of those charges related to an indecent assault upon a child. Mr. Bayliss, by signing the document, admitted committing those additional charges. The trial Judge, Judge Patten, sentenced Mr. Bayliss to imprisonment for a term of nine months to be served by periodic detention. On 1 March 1994 Mr. Bayliss lodged a Notice of Appeal or Application for Leave to Appeal against the severity of the sentence. The Notice was signed by Mr. Bayliss personally. The Notice confirmed that Mr. Bayliss had pleaded guilty to the charge concerning the child named in the indictment. The Appeal or Application to the Court of Criminal Appeal was summarily dismissed on 8 August 1994 for the failure of Mr. Bayliss to prosecute the appeal. Thus, whether or not there was an irregularity in Mr. Bayliss' plea or in his sentencing, that irregularity was cured and the sentence imposed upon him stood as a valid sentence. Therefore, I do not have any jurisdiction under s 24 of the Criminal Procedure Act to review Mr. Bayliss' conviction. Moreover, as I pointed out to him, s 24 of the Criminal Procedure Act does not apply to reopening of convictions, only to reopening of a sentence to correct a sentencing error made by a trial Judge. As I have pointed out to Mr. Bayliss, if he has an avenue for recourse, it is to apply to the Court for leave to withdraw his guilty plea. There is a large body of judicial pronouncements upon applications for leave to withdraw a guilty plea and the decisions of the Court of Criminal Appeal in R. v Chiron { (1980) 1 NSWLR 219} and R v Savig { (1986) 22 A Crim R 73} are examples of the principles applicable to applications for leave to withdraw a guilty plea." 19 In my respectful opinion the approach thus taken by Judge Nield was entirely correct, both in law and in fact. 20 It is necessary to deal, next, with a number of miscellaneous other points made by Mr. Bayliss in his written submissions. 21 Mr. Bayliss complains that the Crown was represented at the hearing of his appeals before Judge Nield by a Mr. Bruce Brown. Mr. Bayliss asserts that he challenged Mr. Brown's right to appear, upon the basis that Mr. Brown had had some antecedent professional dealings with Mr. Bayliss. Mr. Brown is said to have told Judge Nield that he knew nothing about Mr. Bayliss; and that so far as he was concerned he had never spoken with Mr. Bayliss at any time during his, Mr. Brown's, professional career. Mr. Bayliss asserts roundly in his written submissions: "Both statements are lies. I appeared in front of Mr. Brown when he was a Magistrate on 10th August, 1987". 22 Mr. Bayliss' submissions do not spell out in any way at all quite what this has to do with his present application. Even if it be supposed that in fact the Mr. Brown who appeared in August 1999 was the same Mr. Brown who had, while a Magistrate, dealt with Mr. Bayliss 12 years earlier, it does not seem to me to follow necessarily that there was any impropriety or irregularity in Mr. Brown's appearing as counsel in 1999. Nor does it follow that what Mr. Brown told the District Court, assuming that Mr. Bayliss has recorded it correctly, was deliberately untruthful rather than honestly mistaken. It would not surprise me in the least to learn that Mr. Brown, had he in fact been sitting as a Magistrate in 1987, would not have had an immediate recall of every one of the many people, probably numbering in the high hundreds, who had appeared before him 12 years ago. 23 Be all that as it may, however, the short point seems to me to be that, taking Mr. Bayliss' complaints about Mr. Brown at their highest point in his favour, those matters simply have not been shown to have the slightest connection with the very particular matters which have now to be considered in accordance with section 474E(2). 24 Mr. Bayliss has included in his supporting documentation a letter written to him on 18 November 1999 by Mr. Dickens, a solicitor working for the relevant section of the Legal Aid Commission. There is no present need to refer in detail to the contents of the letter. It suffices to say that there is nothing in the letter that goes to any or all of the particular matters prescribed for present consideration by section 474E(2). 25 Mr. Bayliss lodged supplementary written submissions in answer to the written submissions that had previously been put in by the Crown Solicitor. 26 Mr. Bayliss contends that it was necessary for his consent to be obtained before the two summary offences to which I have earlier herein referred could lawfully be dealt with in the Local Court. In my opinion, that is a misconception of the relevant requirements of the law. 27 Mr. Bayliss asserts that the Local Court had no jurisdiction to try him on the two summary offences; and he refers in that connection to a passage in the judgment of Brennan J in The Queen v De Simoni (1981) 147 CLR 383 at 406. The important part of the quoted material, for present purposes, reads: "But where statute provides that a particular issue is susceptible of resolution by the verdict of a jury, a sentencing Judge cannot deny an offender his right to a jury trial of that issue, and himself assume the function of finding the facts." 28 My understanding of Mr. Bayliss' submission is that he is contending that the two summary matters were required by statute to be tried by, and only by, a jury. The short answer is that such was not a requirement of the relevant law. 29 Mr. Bayliss submits, next, that he appealed from a non-custodial sentence, and that a custodial sentence was imposed upon him on appeal and "without warning". Assuming that the material which I have earlier quoted from the judgment of Judge Nield correctly states the facts, there is, manifestly, no substance to this point. Mr. Bayliss was given the opportunity of recognisances reasonably conditioned. He obdurately refused to enter into the recognisances. He has, in my opinion, no just complaint because the District Court refused to be trifled with in that fashion and for an indefinite time. 30 Mr. Bayliss asserts that he could not properly "be found guilty of a physical assault on Mr. Bates if I was cleared of causing injury or detriment to a witness". The short answer to that proposition is that Mr. Bayliss was not so "cleared". Being "cleared" entailed being found not guilty after a hearing on the merits by a Court of competent jurisdiction. Discharge by a committing Magistrate when no evidence has been offered by the prosecution; and when, therefore, no issue has been joined on the merits and tested in proper adversarial fashion; makes it a complete misconception for the person thus discharged to speak of having been "cleared". 31 The original written submissions put in by Mr. Bayliss contain the following statements: "Further suitable inquiries must be made to bring to Justice those responsible for wilful miscarriages of Justice and false imprisonment and abuse of power regarding these matters." 32 In fairness to all concerned, I state plainly that in my opinion the materials placed before me in connection with the present application do not provide so much as a scintilla of evidence upon the basis of which it would be reasonable and responsible to speak of "wilful miscarriages of Justice", or "false imprisonment", or "abuse of power regarding these matters". 33 For the whole of the foregoing reasons, the present application is refused. **********

Regina v Garry Andrew Bayliss

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