R v. Bayliss

[2007] QCA 424

[2007] QCA 424

COURT OF APPEAL

WILLIAMS JA
KEANE JA
HOLMES JA

CA No 166 of 2007
DC No 2 of 2007

THE QUEEN

v

GARRY ANDREW BAYLISS  Applicant

BRISBANE

DATE 29/11/2007

JUDGMENT

WILLIAMS JA:  The applicant was convicted in the Maryborough District Court on 14 June 2007 of one count of wilful damage.  The charge was based on the fact that on 3 November 2005 a person kicked the front door of the offices of Centrelink at Maryborough, breaking the glass in that door.  The applicant claims that on 6 July 2007, within time, he posted to the Court a notice of appeal.  On subsequently checking with the Court he was informed that no notice of appeal had been received.  In consequence, on 24 July 2007, he filed a notice of application for extension of time within which to appeal and lodged a notice of appeal at the same time. 

The applicant has argued the matter on his own behalf.  In the circumstances it is appropriate to consider the merits of the appeal.  The Court has a transcript of the evidence and a transcript of the summing-up.  The grounds of appeal as stated are:

1.  That the learned primary Judge erred in admitting identity evidence from Centrelink staff.

2.  That the learned primary Judge erred in failing to   direct the jury on the availability of the defence of accident.

3.  That the learned primary Judge erred in not raising Centrelink law in trial.

A perusal of the summing-up shows that the issue of accident was adequately addressed and left to the jury.  Further, there is no substance in the third ground.  The real issue raised is whether or not there was any, let alone sufficient, evidence identifying the applicant as the person who broke the glass.

A person entered Centrelink Office on 3 November 2005 and spoke to a customer officer at one of the three reception points.  The first customer services officer to whom that person spoke was not called to give evidence.  Because the person was argumentative that first officer called for assistance from the witness Morrison, another customer services officer.  Morrison's evidence was that she was not able to assist the person and in consequence called a superior.  Morrison was unable to identify the person to whom she spoke.  Nothing in Morrison's evidence pointed to the fact that the person in the dock, the applicant, was the customer.

The witness Peters was the supervisor who became the third employee of Centrelink to speak to the person in question.  When Peters arrived at the reception point details of a customer were displayed on the computer screen there but there was no evidence from any employee of Centrelink that it was as the result of some identification details given by the customer in question that the information came to be disclosed on the screen. 
It is clear on all the evidence that disputation with raised voices continued after Peters arrived at the reception area.  According to her evidence, she addressed the person in question by using the name shown on the computer screen in front of her.  She said in evidence she called the person by name Garry Bayliss.  When next asked how did he respond she answered:

"He responded to me.  I asked him his concerns.  I spoke to him about those concerns.  I provided information to him."

There was no evidence of any detailed conversation and nothing in the evidence of Peters indicated that the person acknowledged to her that his name was Garry Bayliss.  There is nothing indicating that the person heard Peters use the name Garry Bayliss.  It is quite possible, given the raised argumentative voices used, that the name was not heard.

Given that there was no evidence as to how the name Garry Bayliss came to be displayed on the computer screen, and no evidence that the customer in question acknowledged his name was Gary Bayliss, there was simply no evidence that the customer in question was the Garry Bayliss who stood trial in the District Court.  There is absolutely nothing in the balance of the evidence, including evidence from police officers, identifying the person who stood trial as the person who was relevantly in the Centrelink office on 3 November 2005.

In his summing-up to the jury the learned trial Judge pointed out there was no formal identification evidence but he said that the prosecution invited the jury to infer "from all of the evidence put before you that the person was the same person as is now in the dock."  I've come to the view that there was no evidence on which a jury could be satisfied beyond reasonable doubt that the person who caused the damage was the person before the Court.  The prosecution simply failed to prove its case. 

In the circumstances the application for an extension of time should be granted.  The appeal should be allowed.  The conviction set aside and a verdict of acquittal entered.

KEANE JA:  I agree.

HOLMES JA:  I agree.

WILLIAMS JA:  Mr Bayliss, do you understand from that that the Court has allowed your appeal and acquitted you of the charge?

APPLICANT:  I do.  But would your Honour do me the service of identifying the other voices in the courtroom.  I realise that there's the prosecutor but I do not know who the other voices were.

WILLIAMS JA:  Well, there was - the Court comprised Justice Williams, that's myself, Justice Keane and then Justice Holmes.  They were the other two Judges who agreed with me.

APPLICANT:  Right.

WILLIAMS JA:  And Ms Bain was the prosecutor, they were the only voices that you heard.

APPLICANT:  Okay, sir.  That's all I wish to find out-----

WILLIAMS JA:  All right.  Well now, you have been acquitted.  You can obtain a copy of those reasons if you wish through the Court.