Bayliss v The King

[2023] NSWCCA 84

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bayliss v R [2023] NSWCCA 84

Hearing dates:

12 April 2023

Decision date:

19 April 2023

Before:

Adamson JA at [1]; McNaughton J at [79]; Sweeney J at [80]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — Supply of firearm — whether verdict was unreasonable — whether open to jury to be satisfied of gun supply beyond reasonable doubt — whether verdict was inconsistent with finding of not guilty on additional count for separate firearm — evidence of single witness in relation to both counts — whether evidence unreliable — whether it was open to jury to make different findings on each count

Legislation Cited:

Evidence Act 1995 (NSW), ss 32, 38

Firearms Act 1996 (NSW), s 51

Cases Cited:

AS v R [2022] NSWCCA 291

Bridger v R [2022] NSWCCA 125

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Nguyen v R [2017] NSWCCA 145

R v ACK [2000] NSWCCA 180

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Category:

Principal judgment

Parties:

Jacob Blake Bayliss (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
D Scully (Respondent)

Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/321618

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Date of Decision:

24 November 2020 (verdict of jury)

Before:

Hamill J

File Number(s):

2017/321618

HEADNOTE

[This headnote is not to be read as part of the judgment]

Jacob Bayliss (the applicant) appealed against his conviction of supplying a firearm contrary to s 51(1)(a) of the Firearms Act 1996 (NSW) on the grounds that the verdict was unreasonable, in that it was “unsafe and unsatisfactory and not supported by the evidence”, and that this verdict was inconsistent with the verdict of not guilty on count 3 (supplying a different firearm contrary to the same provision). The applicant was tried with five co-accused who were charged with offences such as shoot with intent to murder, murder and attempted murder.

On 1 February 2017, the applicant was accompanied by Ms Martina Sellers (a pseudonym) to a unit in Burwood. Ms Sellers gave an induced statement in which she said that, on the way to Burwood, the applicant produced a gun from behind her car seat. When Ms Sellers and the applicant got into the lift from the underground carpark to go up to the unit, the applicant told Ms Sellers that he did not want to stand in view of the security camera. Ms Sellers was in full view of the camera in the lift whereas the left side of the applicant’s body was out of the camera range. The applicant appeared to be carrying a black garment. It was the Crown case that this garment concealed an item, consistent with a firearm, such as the gun described by Ms Sellers. After entering the unit, the applicant removed the bundle of cash and long gun and handed it to a friend. It was the Crown case that there was also a smaller gun which had been secreted in the applicant’s backpack which was also exchanged (the firearm the subject of count 3). The applicant was given drugs. The CCTV footage showed the applicant and Ms Sellers leaving the unit after the alleged gun supply. On this occasion, the applicant made no attempt to conceal the left side of his body (on the Crown case, because he had supplied the firearm to the men in the unit and no longer had any reason to hide himself).

In her evidence, Ms Sellers, resiled from those parts of her induced statement that implicated the applicant in the supply of guns. The prosecutor was granted leave to cross-examine Ms Sellers on her induced statement pursuant to s 38 of the Evidence Act 1995 (NSW), which allows a party who has called an unfavourable witness to cross-examine that witness. Although Ms Sellers admitted that portions put to her were included in the induced statement, she continued to deny the truth of statements which implicated the applicant in gun supply.

As there was no direct evidence of the gun supply, the trial judge directed the jury that the only evidence of the supply was Ms Sellers’ induced statement. In summing up, the trial judge warned the jury about the potential unreliability of her evidence on several bases, including that she was criminally involved in the events and may have had a motive to implicate the applicant and the evidence in her statement was hearsay as it had, in part, been denied by her in evidence. The trial judge warned the jury that it would be dangerous to convict the applicant of counts 2 and 3 on the strength of Ms Sellers’ evidence alone.

The Court held (Adamson JA, McNaughton and Sweeney JJ agreeing) dismissing the appeal:

1. It was open to the jury to accept the evidence in Ms Sellers’ induced statement on count 2 and to be satisfied beyond reasonable doubt of the applicant’s guilt on that count. The induced statement was detailed and to a large extent consistent with other objective evidence, such as the CCTV footage, and admissions made by the applicant. Ms Sellers’ evidence on count 2 was supported by the stark difference between the applicant’s avoidance of the camera when ascending in the lift to the unit and his preparedness to stand in full view of camera when descending: [58], [64]-[65].

2. No conclusion that different verdicts are inconsistent can be drawn merely because the evidence in support of both counts was largely given by a single witness: [68].

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [221] (Wood CJ at CL); R v ACK [2000] NSWCCA 180 at [51] (James J, Spigelman CJ and Ireland J agreeing), discussed.

1. The different verdicts in respect of counts 2 and 3 can be explained as a matter of logic and reasonableness on the basis that there was evidence that supported Ms Sellers’ evidence on count 2 but no such supporting evidence for count 3: [76].

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [43] (Gleeson CJ, Hayne and Callinan JJ), applied.

Judgment

1. ADAMSON JA: On 24 November 2020, following a trial by jury over which Hamill J (the trial judge) presided, Jacob Bayliss (the applicant) was convicted of supplying a firearm contrary to s 51(1)(a) of the Firearms Act 1996 (NSW) (count 2 on the indictment) and found not guilty of supplying a different firearm contrary to the same provision (count 3 on the indictment). Both counts were alleged to have been committed on 1 February 2017.

2. The applicant seeks leave to appeal against his conviction on the following grounds (the second of which was added without objection at the commencement of the hearing):

1.   The verdict on count 2 was unreasonable, in that it was “unsafe and unsatisfactory and not supported by the evidence.”

2.   The verdict on count 2 was inconsistent with the verdict on count 3.

3. The applicant was tried with five co-accused: Abdallah Hassan Al Batat, Ying Cheng Luo, Ian Fan, Jaiyu Liu and Nai An Li. The other co-accused were charged with offences such as shoot with intent to murder, murder and attempted murder. Mr Luo, Mr Liu and Mr Fan were convicted of the murder of Qin Wu (count 4) and the attempted murder of Jun Jia (count 5) on 1 February 2017. Counts 2 and 3 on the indictment related solely to the applicant, who was not implicated in the other offences on the indictment. For the purposes of determining his application for leave to appeal it is not necessary to address the prosecution case against any of the co-accused.

4. In summing up, the trial judge provided the jury with a document (MFI 84) which identified the evidence relied on against the applicant. There was no challenge to the accuracy of that document or to the approach taken by the trial judge. Ms Kluss, who appeared on behalf of the applicant in this Court, contended that it was not open to the jury to convict the applicant of count 2, having regard to the evidence identified in this document.

5. In order to address the grounds, it is necessary to review the evidence in the trial to determine the adequacy of the evidence in support of count 2 (for the purposes of ground 1) and to determine whether there was a rational basis for the jury’s verdict of not guilty on count 3, in circumstances where the jury had found the applicant guilty on count 2 (for the purposes of ground 2).

The Crown case

6. The evidence against the applicant fell into the following categories:

1. the evidence of Martina Sellers (a pseudonym), who accompanied the applicant to a unit in Burwood and was present when the alleged firearms were supplied;

2. the evidence of Detectives Niall Chivers and Matthew Sinclair;

3. what the applicant said to police on 20 June 2017 and, in an Electronically Recorded Interview with Suspected Person (ERISP), on 24 October 2017;

4. Closed Circuit Television (CCTV) footage taken on 1 February 2017 from the lobby area and lifts of the unit complex in Burwood where the unit where the firearms were allegedly supplied was located;

5. evidence of a SMS message sent on 31 January 2017 from the applicant to “Slug” in which the applicant referred to picking up a “toy” (which, on the Crown case, was a gun); and

6. tendency evidence that the applicant was in possession of several different firearms found during a vehicle search on 14 February 2017 and, when interviewed about those firearms on 24 October 2017, admitted possession of those firearms and in that context said “I love me guns”.

7. This evidence will be summarised by reference to these categories.

Ms Sellers’ evidence

Ms Sellers’ evidence in chief

8. Ms Sellers met the applicant, whom she knew as “Shiv”, at a party on the Central Coast at the end of January 2017. They subsequently messaged on Facebook. When police asked Ms Sellers about travelling to Sydney with the applicant on 1 February 2017 and going to a unit in Burwood, she was vague and, at times, unresponsive. She repeatedly referred to her drug use (principally ice) at the time and asserted that she was unable to remember much of that period.

9. The prosecutor was granted leave, pursuant to s 32 of the Evidence Act 1995 (NSW), to permit Ms Sellers to refresh her recollection by looking at the statement she had made to police on 29 June 2017 when she was in custody. When this did not assist her recollection, the prosecutor was granted leave to cross-examine Ms Sellers pursuant to s 38 of the EvidenceAct.

10. Ms Sellers accepted that when she made the statement she was doing her best to tell the police the truth, and that what was in her statement constituted her best recollection of what actually happened.

11. The prosecutor took Ms Sellers to the contents of her statement and asked her about what she had told police in the statement and whether the statement was true. Ms Sellers accepted that she had told police the portions of the statement which were put to her. In the main, she accepted that these matters were true, with the exception of anything relating to guns. In her evidence she denied the truth of all references in her statement relating to firearms. Her evidence, including the portions which she accepted were in her statement but which she denied in her evidence, was as follows.

12. Ms Sellers had accompanied the applicant to a unit in Burwood in a car driven by the applicant. On the way, he had asked her to count a bundle of cash in his backpack. When they were in the vicinity of the Burwood Railway Station, the applicant reached his left arm behind her seat and produced a long brown and black gun (the long gun, which was the firearm in count 2). He held the long gun in both hands and pointed it towards the front window. It had a brown wooden handle but the rest was black. The gun was long and thin, appeared to be old, was a little less than a metre long and had a barrel where the bullet would come out. Ms Sellers, who had not previously seen a gun, said to the applicant, “What the fuck are you doing?”.

13. According to Ms Sellers, after she and the applicant had driven into the carpark under the unit complex in Burwood, the applicant wrapped the long gun in a black T-shirt. When he got out of the car he tucked the long gun with the barrel facing towards the ground into his pants so that the top of the gun was under his right armpit.

14. When Ms Sellers and the applicant got into the lift from the underground carpark to go up to the unit, the applicant looked up at the camera and said to her, “I don’t want to stand here because there is a camera”. In her statement, Ms Sellers said that, as a consequence of what the applicant had said, she and the applicant swapped places so that the applicant would not be in camera view. In her evidence, Ms Sellers accepted that she and the applicant swapped places but denied that it was due to his not wanting to be seen by the camera.

15. After entering the Burwood unit, the applicant removed the bundle of cash from his backpack and handed it to his “Asian friend” (alleged to be Mr Liu). The applicant also removed the long gun from his pants and put it underneath a three-seater lounge.

16. Later the applicant removed the long gun from under the lounge and unwrapped the black shirt that was around the gun. The “Asian friend” held the long gun.

17. According to Ms Sellers’ statement, the applicant opened the black backpack and removed another black gun that looked “dodgy” because it had duct tape wrapped around it (the smaller gun, which was the firearm in count 3). He was holding the smaller gun in his two hands and showed it to his Asian friend. The applicant said “this one does not have the safety clip, so I’ll have to bring it when I come next time”. Ms Sellers saw the Asian friend take the smaller gun from the applicant and point it.

18. According to Ms Sellers, two other Asian males arrived at the unit, a “taller Asian” (alleged to be Mr Fan) and an “older Asian” (alleged to be Mr Luo) at which time the applicant’s Asian friend handed it to the “older Asian male”. One of the Asian males handed the applicant something in a freezer bag which the applicant then opened to test the quality of the drug.

19. After this transaction was completed, the three Asian males and the applicant started speaking about guns, in the course of which the applicant said, “don’t fire them without bullets because it fucks the guns”.

20. At some stage, the applicant handed the tall Asian the long gun. For a period, “everyone” was handling all the guns, while seated on the lounge. The applicant removed bullets from the backpack. The applicant’s Asian friend left and returned with a piece of bath towel, which he handed to the applicant, together with a box of surgical gloves. The applicant put on a pair of the gloves and used the gloves and the towel to wipe down the bullets.

21. When the two other Asian men left, the small gun was under the lounge and the applicant’s Asian friend took the long gun into the bedroom. The Asian friend then returned to the lounge and began smoking ice before hurriedly moving Ms Sellers and the applicant out of his unit.

Ms Sellers’ evidence in cross-examination by Mr Webb, counsel for Mr Luo

22. Ms Sellers said in cross-examination that she could not say that what she said in her statement was true because she could not remember. She also said that nothing that had happened on 1 February 2017 had anything to do with guns. She said that she had been affected by drugs (“Bupe”, Xanax” and “Meth”) when the statement had been taken by police when she was in custody.

Ms Sellers’ evidence in cross-examination by Mr Norrie, counsel for the applicant

23. Ms Sellers said in cross-examination that, in February 2017, she had been smoking 1.7g of ice a day and that she was passing the time in a “zombie state”.

24. Ms Sellers agreed that she had not read her statement before she signed it. She was shown CCTV footage (referred to below) and agreed that:

1. the CCTV footage showed her (Ms Sellers) and the applicant in a lift, which they came out of into a foyer, where someone came down to greet them and take them up in another lift;

2. she had told police in her statement that:

1. she and the applicant had got into the lift in the car park and, at some point, a lady with glasses (who was not “Australian” (Caucasian) or Asian, and may have been an “Islander”) entered the lift for a few floors before getting out;

2. when the lift doors opened at a higher level, no one was there, at which point she and the applicant walked to the end of the hallway where the applicant knocked on a door and an Asian man, who was standing inside the unit said “what took you so long?”.

3. what had been recorded in her statement was completely different from what she saw played in the CCTV;

4. she had no records to assist her when she made her statement;

5. she could not explain how the name, Deane Street, had been included in her statement as being a street into which the vehicle turned right;

6. she felt pressured to give a statement and was very vulnerable at that time in her life, in part because she was due to be released from prison in two days, which was a priority as her father was dying;

7. she felt that if she did not cooperate with police by making the statement that she would not get released;

8. although her statement recorded that she had said, “[t]he storage containers were maroon”, she did not know what “maroon” meant and had never heard of the word; and

9. although her statement recorded that she said, “I felt a little immune to it”, she did not know what the word “immune” meant.

Cross-examination of Mr Sellers by Ms Carroll, counsel for Mr Liu

25. In cross-examination by Ms Carroll, Ms Sellers agreed that when she was taking drugs in 2017, she would sometimes mix memories up. When Ms Carroll suggested that it was possible that the lady with the glasses had been in the lift when the applicant and Ms Sellers were leaving the unit block rather than when they were arriving, Ms Sellers said, “No, personally, I don’t think there was a lady at all with glasses on”.

26. Ms Carroll then arranged for CCTV footage to be played of Ms Sellers and the applicant leaving the building at about 9.08pm which showed a woman in the lift with them who was wearing glasses. Ms Carroll asked Ms Sellers whether that was the woman whom she had referred to in her statement, to which Ms Sellers responded, “It must have been but I don’t remember that, you know”.

Re-examination of Ms Sellers

27. In re-examination, Ms Sellers admitted that she knew that the Queensland team wears maroon for State of Origin rugby league matches and was familiar with both the colour and the word.

The evidence of Detectives Chivers and Sinclair

28. Detectives Chivers and Sinclair visited Ms Sellers at the Emu Plains Correctional Centre on 27 June 2017. Before they returned on 29 June 2017, they sought and obtained authorisation to take an induced statement from her: that is, a statement which could not be used in evidence against her, except for an offence that she had made a false statement in the induced statement. Prior to taking the statement, they did not caution her as she was not regarded as a suspect.

29. Both officers were cross-examined as to the circumstances in which Ms Sellers’ statement was obtained. They agreed that, by the time they spoke to Ms Sellers, they had a working hypothesis that firearms had been supplied at the Burwood unit. However, they denied that they had ever told Ms Sellers of this working hypothesis.

30. On 12 July 2017, Detectives Chivers and Sinclair showed Ms Sellers a photo array comprising males, each of whom was Asian (Exhibit FFF). Ms Sellers selected photograph 11, which depicted Mr Luo. In answer to questions in a prepared question sheet, she indicated that she saw this person “[a]t Burwood on the 1^st of whenever it occurred”. In answer to a question asking what the person did, Ms Sellers responded “Came in, dropped off drugs”.

31. Detective Chivers gave evidence that, as part of the investigation, he became aware that the applicant was stopped by police officers at Woy Woy on 2 February 2017 at about 12.40pm. Senior Constable Robert MacDonald said that the applicant was the front passenger in a black Hyundai Tucson. Senior Constable MacDonald searched the vehicle and found two plastic bags secreted under a plastic panel in the front passenger footwell, which were found to contain 42g of methylamphetamine.

28. Detective Chivers gave evidence that police officers also spoke to the applicant on 14 February 2017. On 14 February 2017, Constable Kate McGrath attended an address in Springfield where she observed a black Holden Commodore. Constable McGrath began searching the vehicle. In the front middle console, she located a black Samsung mobile phone with a cracked screen. Underneath two items of clothing, she located a blue-striped pillow case containing a sawn-off double barrel shotgun. She continued searching a Nike bag and a plastic bag containing a silver pistol, which turned out to be a replica. Photographs of the three firearms referred to in the statement of Constable McGrath were tendered as Exhibit HHH.

The applicant’s ERISP

33. On 24 October 2017, Detective Chivers and Senior Constable Roberts conducted an ERISP with the applicant. During the interview, the applicant said that one of his nicknames was “Shivvy”. The applicant agreed that it had been explained to him that he was under arrest for supplying firearms in Burwood at the beginning of February. He said that he didn’t know the exact dates, but he probably did visit Burwood on 1 February 2017. He said that he met up with a mate, Kory. He said that the purpose of visiting Kory was “Just to catch up”. He said that he had “a chick” with him when he visited Kory but did not remember anyone else being at the unit. He said that he was probably smoking ice “or something” but could not recall anything else happening on that occasion.

34. The applicant was also shown stills from the CCTV footage and asked questions about them. He identified a photo of Mr Liu as being his “mate Kory”.

35. When shown a still image from the CCTV of the foyer of the Burwood unit block (taken at 17.18.28), he recognised himself and a “chick from the Central Coast”. The applicant said that he was carrying a Bundaberg longneck and a black backpack and that he was just holding a jacket in his left hand.

36. When asked whether there was any reason why he was standing where he was in the lift when he and Ms Sellers were travelling from the basement to the foyer, he responded, “Nuh”. The applicant admitted that he had looked at the camera at 17.18.30 when he and Ms Sellers entered the lift to go up to the unit. However, he denied that he decided to stand underneath the camera and hide his left arm. He told police that he was just standing there and couldn’t walk into a room without looking at a camera.

37. When the applicant was shown a still image from inside the lift (at 17.18.35), he identified himself and Mr Liu. He agreed that Mr Liu had come to collect him because Mr Liu had a swipe card to get him up in the lift. When shown a photograph of Mr Fan, he said that he did not know the man but when shown a photograph of Mr Luo, he said that he did not think he knew him but that he “maybe” looked like someone who “rocked up at Kory’s house” on one occasion when they were smoking.

38. The applicant denied supplying guns to Kory or the other two Asian males at the unit. The applicant said “Nuh, I was just getting on”.

CCTV footage taken on 1 February 2017

39. The footage showed Ms Sellers entering a lift from a basement car park. Shortly after she entered the lift, she exited it again, although the lift door remained open. After some delay, the applicant entered the lift, wearing a black backpack. He was followed by Ms Sellers. Ms Sellers was in full view of the camera in the lift whereas the left side of the applicant’s body was out of the camera range. Ms Sellers repeatedly pushed a button on the lift but it appeared to be unresponsive.

40. A camera in a different lift showed that an Asian man, wearing red shorts (Mr Liu), came down in another lift to the foyer.

41. At 17:18:26, the applicant and Ms Sellers walked from one lift to the other. The applicant appeared to be carrying a black garment. It was the Crown case that this garment, a jacket, concealed an item, consistent with a firearm, such as the long gun described by Ms Sellers. At 17.18.30, the applicant looked up at the CCTV camera. At 17:18:39, the left side of the applicant’s body was obscured such that it could not be seen by the camera in the lift.

42. When the applicant, Ms Sellers and Mr Liu got out of the lift, the applicant’s body was momentarily exposed to the camera. He was carrying a jacket and a backpack.

43. Subsequently, the camera recorded the arrival of two further Asian males.

44. The CCTV footage showed the applicant and Ms Sellers leaving the unit at 21.08.11 after the alleged gun supply. On this occasion, the applicant made no attempt to conceal the left side of his body (on the Crown case, because he had supplied the firearm to the Asian men in the unit and no longer had any reason to hide himself).

45. At 21:08:55, the CCTV footage showed a woman in the lift who was wearing glasses (this relates to Ms Sellers’ evidence referred to above which she gave when cross-examined by Ms Carroll, counsel for Mr Liu).

SMS message

46. A SMS message sent on 31 January 2017 was downloaded from one of the mobile phones which had been seized on 14 February 2017. The message sent from the applicant to a contact named “Slug” read:

“Im pikn up toy from stash so cnt take her bak in 5mins bro soz bout this”.

47. It was the Crown case that the reference to “toy” was a reference to a gun.

Tendency evidence relating to the applicant’s possession of firearms

48. As referred to above, firearms were found in the vehicle searched by police on 14 February 2017. In his ERISP, the applicant was shown photographs of the firearms. He responded that he had not had the firearms for long and added, “I love me guns”.

49. The applicant did not give evidence.

The summing up

50. In the summing up on 16 November 2020, the trial judge referred to counts 2 and 3 and said, in part, as follows:

“The real issue in these counts is whether or not you can be satisfied beyond a reasonable doubt that there was a gun supply that day. There is no direct evidence of this gun supply in the trial. What there is evidence of things Ms Sellers said to police, or allegedly said to police, that found their way into the statement upon which she was cross-examined by the prosecutor. That is the only evidence, direct evidence, of the supply. It is not direct evidence because it wasn't given in court. She denied it in court.

I will give some warnings to you about that type of evidence probably first thing tomorrow morning, or later today, but the prosecution in addition to that also relies on certain pieces of circumstantial evidence, inferences in Mr Bayliss' case, not the others, that you can draw from his possession of guns a couple of weeks later and his love of guns, as he expressed it in his record of interview. It also relies on the CCTV footage that you have seen, and will no doubt watch again, and telephone records showing contact between people and movements of telephones. None of that evidence could prove, by itself, these charges. It really does come down to an assessment of what Ms Sellers said in her statement. But the issue is, was there a supply of guns that day?”

51. Later that day, the trial judge warned the jury about the potential unreliability of the evidence of Ms Sellers on the following bases:

1. she was criminally involved in the events and therefore may have a motive to implicate the applicant;

2. the evidence in her statement was hearsay and was, in part, denied by her in evidence;

3. she gave evidence that when she gave the statement she was frightened and worried about getting out of gaol;

4. the statement was induced, which meant that she could not be prosecuted for her involvement in the events;

5. the statement used words, such as “immune”, which she said she did not understand and referred to a place, Deane Street, which she said she did not know; and

6. her identification of Mr Luo may be unreliable because she had not seen him before, did not know him, was with him for a brief period and was taking lots of drugs at the time.

52. The trial judge warned the jury that it would be dangerous to convict the applicant of counts 2 and 3 “on the strength of [Ms Sellers’] evidence alone.”

The sentencing judgment

53. It was common ground that this Court could have regard to the trial judge’s sentencing judgment, in so far as it expressed a view about the different verdicts, but that this Court was not bound by the trial judge’s view and was required to assess the matter for itself: see also Bridger v R [2022] NSWCCA 125 at [72] (myself, Bellew and Lonergan JJ agreeing).

54. The trial judge said, of present relevance, in his sentencing judgment at [87]:

“The mixed verdicts on counts 2 and 3 are explained by the contents of the CCTV footage taken from the lift. It depicts Mr Bayliss carrying something under his shirt. When this footage is slowed down and focussed upon, I am satisfied (as the jury must have been) that it depicts the butt of the gun described by Ms Sellers.”

55. The Crown did not contend that the CCTV footage depicted the butt of the gun and therefore accepted that the jury could not have been satisfied that it did. Nor did the Crown accept that the explanation for the different verdicts was limited to the evidence of the CCTV footage. However, the Crown submitted that the reason for the different verdicts was that Ms Sellers’ evidence was relevantly uncorroborated for the smaller gun in count 3 (which was hidden in the applicant’s backpack); whereas it was corroborated by other evidence in respect of the long gun in count 2. It relied, in particular, on what it contended was the odd shape of the applicant’s jacket, which it said was distorted by an object underneath it, and the care which the applicant took to hide himself from the camera in the lift on the way to the unit, when contrasted with his preparedness to stand in the centre of the lift, thereby exposing himself to the full view of the camera as he left the building, having, on the Crown case, disposed of the gun.

Ground 1: alleged unreasonable verdict

General principles

56. In AS v R [2022] NSWCCA 291, I summarised the principles which apply at an unreasonable verdict ground, as follows:

“101   The relevant principles which govern how an unreasonable verdict ground should be addressed were summarised in Crickitt v R [2018] NSWCCA 240 at [12] (Bathurst CJ, R A Hulme and Davies JJ):

‘1)   This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality.

2)   It must be borne in mind that the tribunal of fact in the court below … had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence.

3)   If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside.

4)   A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the applicant’s guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion.

5)   A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. 

…’

[Footnotes omitted.]

102   Thus, this Court must determine whether it was ‘open’ to the jury to find the applicant guilty or whether a jury “must have had a doubt”: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21. In other words, this Court must determine whether it was ‘not reasonably open’ to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

103   In Pell, the High Court said further, at [53]:

‘There is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it.’

104   The jury is the body which is entrusted with the primary responsibility of determining guilt or innocence: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ). This constitutional principle has certain consequences.

105   First, it will not generally be appropriate, where evidence has been pre-recorded or recorded, for the appellate court to review it to form its own view of the credibility of particular witnesses on the basis of their presentation, since this is the function of the tribunal of fact: Pell at [36]-[38].

106   Secondly, in an appeal such as the present one, the function of this Court must proceed on the assumption that the evidence of the complainants was accepted by the jury as credible and reliable: Pell at [39].

107   Thirdly, there are consequential constraints on the extent to which an appellate court is entitled to disbelieve a witness whose evidence a jury may be taken to have accepted, including to establish the offence beyond reasonable doubt. This Court said in Z (a pseudonym) v R [2022] NSWCCA 8 at [29] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL agreeing):

‘… it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence.’”

Consideration

57. Ms Kluss submitted that it was not open to the jury to find the applicant guilty of count 2 because Ms Sellers was an unreliable witness, who had been found to be unreliable by the jury, since the jury may be taken to have rejected her evidence on count 3 by returning a verdict of not guilty on that count.

58. I have reviewed all the evidence on counts 2 and 3. I consider that it was open to the jury to accept Ms Sellers’ evidence on count 2. The induced statement she gave to police on 29 June 2017 was detailed and was, to a large extent, consistent with other objective evidence and admissions made by the applicant. She told police about accompanying the applicant to a unit block in Burwood (which was supported by the applicant’s admission that he had gone to Burwood with a “chick from the Central Coast”) and going up in a lift from the car park to the unit (which was supported by the CCTV footage). She told police that the applicant had told her where to stand in the lift and that he did not want to stand in view of the CCTV camera in the lift (which was supported by the CCTV footage of their respective positions). In her evidence, she confirmed that he had told her where to stand in the lift. She mentioned an “Asian friend” (which was supported by the CCTV footage of Mr Liu coming down in another lift to use his swipe card to get the applicant and Ms Sellers up to his unit). She also spoke of two other Asian men who arrived subsequently. She said that they had smoked drugs inside the unit (which was supported by what the applicant told police in his ERISP).

59. Ms Sellers’ evidence about the supply of firearms in the unit was, in so far as it concerned the long gun, supported by the difference between the applicant’s care to ensure that one side of his body was hidden from the camera as he went up in the lift to Mr Liu’s unit but his preparedness to stand in full view of the camera on the way down in the lift after the alleged gun supply.

60. The jury may have been influenced by Ms Sellers’ evidence about the physical characteristics of the long gun and inferred that she had taken particular notice of it because she had never seen a gun before and was surprised by its presence in the applicant’s vehicle.

61. Further, it was open to the jury to reason that Ms Sellers’ refusal to confirm any of the statements relating to gun supply which she had made to police in her induced statement was not because they were not true or that she did not remember what had occurred but rather for some extraneous reason, unrelated to her reliability or the reliability of the statement. The jury may have also been influenced by Ms Sellers’ preparedness, when cross-examined by Mr Norrie, counsel for the applicant, to admit that what she said in the induced statement was “completely” different from what she had seen on the CCTV footage, in circumstances where the jury may have considered that the CCTV footage broadly supported what Ms Sellers had said in her induced statement.

62. The jury may also have reasoned that Ms Sellers’ description of herself as having been in a “zombie state” was an excuse and did not accord either with the objective fact that, some five months (from 1 February 2017 to 29 June 2017 when the induced statement was taken) after the events, she was able to recall, in significant detail, the sequence of events on 1 February 2017, or her appearance in the lift on 1 February 2017. The jury may also have been impressed that Ms Sellers recalled a woman getting into the lift wearing glasses, on that day, which was supported by the CCTV footage and regarded this incidental detail as indicating that she had a good recollection of what had occurred on 1 February 2017 when she was interviewed on 29 June 2017.

63. For the reasons given below, the verdict of not guilty in respect of count 3 did not indicate that the jury “rejected” Ms Sellers’ evidence or found her to be unreliable.

64. I have reviewed all of the evidence myself, as I am required to do when addressing an unreasonable verdict ground. I could not discern that there was an object under the black garment which the applicant carried to the unit. However, the stark difference between the applicant’s avoidance of the camera when ascending in the lift to the unit and his preparedness to stand in full view of the camera when descending (when he was patently not carrying anything that could have been the long gun) strongly supports Ms Sellers’ evidence and the Crown case on count 2.

65. When Ms Sellers’ evidence on count 2 is seen in the context of the whole of the Crown case, I consider that it was open to the jury to accept it, together with the other evidence in the Crown case, and to be satisfied beyond reasonable doubt of the applicant’s guilt on that count. Having reviewed the evidence myself, I am satisfied beyond reasonable doubt of the applicant’s guilt on count 2.

Ground 2: alleged inconsistency between the respective verdicts for counts 2 and 3

66. Ms Kluss submitted that the evidence in support of count 2 was effectively the same as the evidence in support of count 3 and that there was, accordingly, an inconsistency between the verdict of guilty on count 2 and not guilty on count 3. She submitted further that, if anything, there was more evidence in support of count 3 since the SMS message, which referred to a “toy”, was more apt to count 3 since the gun which was the subject of that count was smaller. She also contended that, by finding the applicant not guilty of count 3, the jury must be taken to have rejected the evidence of Ms Sellers on the basis that it was unreliable and, therefore, ought to have found the applicant not guilty of count 2.

67. An appeal ground that a jury’s verdict of guilty is unreasonable because it is inconsistent with another verdict of not guilty raises the question whether the different verdicts can be explained as a matter of logic and reasonableness: see the summary of authorities in Nguyen v R [2017] NSWCCA 145 at [34]-[47] (Macfarlan JA, Campbell J agreeing) and [52]-[53] (Adamson J).

68. No conclusion that different verdicts are inconsistent can be drawn merely because the evidence in support of both counts was largely given by a single witness. Thus, it cannot be inferred from the jury’s verdict in respect of count 3 that the jury did not find Ms Sellers to be a credible witness, particularly where her evidence largely formed the basis of the guilty verdict in respect of count 2.

69. Many of the authorities concerning inconsistent verdicts arise in the context of sexual assault charges against a single accused in respect of a single complainant. The principles articulated in those cases are of general application, including in the present case where the evidence against the applicant on both counts largely comprised the evidence of Ms Sellers. For example, in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, Wood CJ at CL explained, at [221], that an acquittal on a particular count (of sexual assault against a single complainant) did not amount to a positive finding that the act did not occur or that the evidence of the complainant was rejected as a lie or as lacking in credibility.

66. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA v The Queen), Gleeson CJ, Hayne and Callinan JJ said, of present relevance, at [34]:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.” 

71. In R v ACK [2000] NSWCCA 180 (R v ACK), James J (Spigelman CJ and Ireland J agreeing) said at [51]:

“It was submitted that the verdict of not guilty on the first count was inconsistent with the verdicts of guilty on the second and third counts. However, the different verdicts on count 1 and counts 2 and 3 are capable of being explained on the basis of the evidence of complaint. The complainant complained to Miss H that the appellant had rubbed his penis over her, being conduct of the kind alleged in the second and third counts on which the appellant was convicted, but did not complain to Miss H that she had been anally penetrated, which was conduct of the kind alleged in the first count.”

72. As can be seen from R v ACK, the fact of a complaint having been made of the conduct the subject of some counts (of which the accused was convicted) and not of conduct the subject of another count (of which the accused was found not guilty) was sufficient to differentiate the verdicts and to make the different verdicts logical and reasonable.

73. There was a clear difference between the evidence in support of count 2 and the evidence in support of count 3. The evidence in support of count 3 was, in effect, confined to Ms Sellers’ evidence. She said that the applicant produced the smaller gun (the subject of count 3) from his backpack while they were inside the unit of the applicant’s “Asian friend” and left it inside the unit. Her evidence in relation to count 2 was not only much more detailed (the description of the long gun, which she said was brought out by the applicant on the way to Burwood and then wrapped by him in the black T-shirt and taken by him up to the unit in such a way as to avoid his being captured on the CCTV camera with the long gun visible or able to be detected) but it was also corroborated. There was a stark difference between his position as shown on the CCTV footage when he ascended in the lift to Mr Liu’s unit (out of view of the camera) and his position when descending after the alleged gun supply.

74. The trial judge had warned the jury that Ms Sellers’ evidence may be unreliable and directed them that it would be dangerous for them to convict the applicant on her evidence alone. It was open to the jury to regard the complainant’s evidence on count 2 as relevantly supported by his different behaviour in the lift. This evidence did not, however, apply to support Ms Sellers’ evidence on count 3 since the smaller gun was capable of being secreted in the backpack and did not require the applicant to take any such precautions to hide it from the CCTV camera.

75. I regard the evidence of the SMS message and the reference to a “toy” and the tendency evidence as equivocal since the SMS was potentially relevant to both counts. I do not accept Ms Kluss’ submission that the word “toy” was more apposite to describe the smaller gun than the long gun since it is a word which is capable of applying to either.

76. I consider that the different verdicts in respect of counts 2 and 3 can be explained as a matter of logic and reasonableness on the basis that Ms Sellers’ evidence was supported for count 2 and not for count 3. The jury’s approach in the present case accorded, in my view, with that described by the High Court in the passage from MFA v The Queen extracted above. The jury may have considered it to be more probable than not that Ms Sellers was telling the truth about the conduct which comprised both counts but, acting in accordance with the trial judge’s direction, required something additional before it could find the applicant guilty beyond reasonable doubt of either count. The different verdicts are consistent with the jury having approached their task seriously, conscious of the warnings the trial judge had given and the heavy burden of proof undertaken by the prosecution. The jury’s verdict of not guilty in respect of count 3 need not have reflected any lack of confidence in Ms Sellers’ evidence. Rather, it may be evidence of the jury’s fastidiousness in abiding by the trial judge’s direction that it would be dangerous to convict on her evidence alone and, accordingly, requiring supportive evidence before it could return a verdict of guilty on the basis of her evidence.

77. Accordingly, ground 2 has not been made out.

Proposed orders

78. For the reasons given above, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

79. McNAUGHTON J: Having conducted an independent assessment of the evidence against the applicant myself, I too have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of Count 2. I agree with the orders and reasons of Adamson JA.

80. SWEENEY J:  Having reviewed the evidence in the trial myself, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of Count 2. I agree with the orders and reasons of Adamson JA.

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Decision last updated: 19 April 2023