R v Garry Andrew Bayliss - [2001] NSWSC 732

Reported Decision:
124 A Crim R 362

New South Wales

Supreme Court

CITATION: Regina v Garry Andrew Bayliss [2001] NSWSC 732

FILE NUMBER(S): SC 70039/01

HEARING DATE(S): In chambers

JUDGMENT DATE:
31 August 2001

PARTIES :

Regina
Garry Andrew Bayliss

JUDGMENT OF: Sully J at 1

LOWER COURT
JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 98/32/0617

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

COUNSEL : Not applicable

SOLICITORS: Not applicable

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Justices Act 1902 (NSW)

CASES CITED: R v Potter & ors (1984) 14 ACrimR 204
The Queen v De Simoni (1981) 147 CLR 383 at 406

DECISION: Application refused

SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

Friday 31 August 2001

70039/01 - REGINA v Garry Andrew BAYLISS

JUDGMENT

1 HIS HONOUR: Mr. Garry Bayliss applies pursuant to section 474D(1) of the Crimes Act 1900 (NSW) for an inquiry into sentences of imprisonment passed upon him on 31 August 1999 by his Honour Judge Nield of the District Court.

2 Section 474D forms part of Division 3 of Part 13A of the Crimes Act. The scheme of Division 3, so far as is at present relevant, can be summarised as follows:

[1] A person who has been convicted and sentenced may make an application to this Court for “an inquiry into” the conviction and sentence.

[2] The consideration of such an application goes in the first instance to a nominated single Judge of this Court. That Judge conducts what is essentially an administrative hearing rather than a formal curial hearing. The hearing is conducted in private Chambers and upon the basis of such written materials as the applicant for the inquiry, and the Crown solicitor, submit to the Judge in connection with the application.

[3] It becomes thereupon the duty of the Judge to consider whether “there is a 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” : see section 474E(2).

[4] The Judge to whom the application has been referred, having considered the application, can do any of the following things:

(a) Refuse the application for an inquiry; or

(b) Grant the application for an inquiry and direct thereupon that such an inquiry be conducted “by a prescribed person into the conviction or sentence” ; or

“…………….refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912”

3 So far as concerns section 474E(2), the guiding principles of law are well settled. Put simply, the question for the Judge is whether the material which has been put forward in connection with the application causes the Judge unease or a sense of disquiet about allowing the relevant conviction(s) and sentence(s) to stand.

4 Before turning in a particular way to the proceedings before Nield…

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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Details

Case: [2001] NSWSC 732
Decision Date: 31 August 2001

CaseChat Overview and Summary

Garry Andrew Bayliss has applied under section 474D(1) of the Crimes Act 1900 (NSW) for an inquiry into sentences of imprisonment passed upon him on 31 August 1999 by Judge Nield of the District Court. The application is brought pursuant to the statutory scheme set out in Division 3 of Part 13A of the Crimes Act, which provides for an inquiry into the conviction and sentence if there is a doubt or question as to the convicted person's guilt, any mitigating circumstances, or any part of the evidence. The legal issues before the court were whether the application raised a legitimate doubt or question about Bayliss's guilt, the mitigating circumstances, or the evidence, and whether the District Court's decision was correct in law and fact.

The court found that there was no legitimate doubt or question about Bayliss's guilt, the mitigating circumstances, or the evidence. Judge Nield's assessment of the witnesses' credibility and the evidence was clear and reasonable. Bayliss's contentions about the representation of the Crown, his consent to the summary offences being dealt with in the Local Court, and his previous discharge did not provide grounds for questioning the District Court's decision. The application was refused, and the sentences were upheld.

Orders