S APCR 2015 0126 S APCR 2015 0127 S APCR 2015 0128
ADRIAN ERNEST BAYLEY
Applicant
v
THE QUEEN
Respondent
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JUDGES:
WARREN CJ, WEINBERG and PRIEST JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
9 March 2016
DATE OF JUDGMENT:
13 July 2016
1st Revision: 24 August 2016 fn 32
MEDIUM NEUTRAL CITATION:
[2016] VSCA 160
JUDGMENT APPEALED FROM:
DPP v Bayley (County Court of Victoria, Judge Pullen, 14 July 2014 (Conviction trial 1); 12 March 2015 (Conviction trial 2); 26 March 2015 (Conviction trial 3)) DPP v Bayley [2015] VCC 698 (Sentence)
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CRIMINAL LAW — Appeal — Conviction — Applicant convicted of sexual offences against three complainants — Application for leave to appeal the convictions in respect of the first complainant — Identification evidence — Complainant identified applicant from Facebook and media coverage in circumstances that strongly suggested the applicant was guilty of rape and murder — Risk of unfair prejudice greater than probative value — Verdict unsafe and satisfactory — Leave to appeal granted — Appeal allowed — Verdict of acquittal entered – Evidence Act 2008 (Vic) s 137.
CRIMINAL LAW — Appeal – Conviction — Application for leave to appeal the convictions in respect of the third complainant – Whether trial judge erred in admitting telephone records — Whether relevant — Whether verdicts unsafe or unsatisfactory — Leave to appeal granted — Appeal dismissed — Evidence Act 2008 (Vic) s 55.
CRIMINAL LAW — Appeal — Sentence — Application for leave to appeal sentence —Whether non-parole period manifestly excessive — Application falls away as first conviction appeal is allowed — Sentences imposed on other convictions not disturbed – Total effective sentence of 12 years and nine months undisturbed — Non-parole period of 40 years fixed afresh.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr S Holt QC and Mr P Smallwood (Pro Bono)
James Dowsley & Associates (Pro Bono)
For the Respondent
Mr G Silbert QC and Ms S Flynn
Mr J Cain, Solicitor for Public Prosecutions
WARREN CJ WEINBERG JA PRIEST JA:
Introduction
On 19 June 2013, the applicant was sentenced to life imprisonment for the rape and murder of Gillian Meagher (known generally as ‘Jill Meagher’). Nettle JA, sitting in the Trial Division, fixed a non-parole period of 35 years.[1]
Whilst serving that sentence, the applicant faced three trials in the County Court for rape and other offences perpetrated against a further three female victims, ‘GH’, ‘BC’ and ‘HS’.[2]
[2]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of initials in place of the names of persons.
In June 2014, the trial judge dealt with a series of preliminary legal issues relevant to the trials. The trial with respect to the offences against GH…
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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AGLC
Bayley v The Queen [2016] VSCA 160
Case
[2016] VSCA 160
Decision Date
CaseChat Overview and Summary
Bayley v The Queen involved an appeal against the applicant's conviction and sentence for various sexual offences against three complainants. The applicant sought leave to appeal the conviction in respect of the first complainant, claiming that the identification evidence was prejudicial and unreliable. The applicant also sought leave to appeal the conviction in respect of the third complainant, arguing that the trial judge erred in admitting certain telephone records. Additionally, the applicant sought leave to appeal the sentence, arguing that the non-parole period was manifestly excessive.
The court had to decide whether the identification evidence in respect of the first complainant was so unfair as to make the verdict unsafe and unsatisfactory. The court also had to decide whether the trial judge erred in admitting the telephone records in respect of the third complainant and whether the verdicts were unsafe or unsatisfactory. Finally, the court had to determine whether the non-parole period was manifestly excessive.
The court found that the identification evidence in respect of the first complainant was so unfair as to make the verdict unsafe and unsatisfactory. The court held that the risk of unfair prejudice was greater than the probative value of the evidence, and that the verdict was not safe and satisfactory. The court also found that the trial judge did not err in admitting the telephone records in respect of the third complainant, and that the verdicts were not unsafe or unsatisfactory. The court held that the applicant's application for leave to appeal the sentence fell away as the first conviction appeal was allowed. The court varied the non-parole period of 40 years to a new non-parole period of 12 years and nine months.
The court granted leave to appeal the conviction in respect of the first complainant, allowed the appeal, and entered a verdict of acquittal. The court granted leave to appeal the conviction in respect of the third complainant but dismissed the appeal. The court did not disturb the sentences imposed on the other convictions but fixed afresh the non-parole period to 12 years and nine months.