Regina v Wade - [2000] NSWCCA 56

CITATION: Regina v Wade [2000] NSWCCA 56

FILE NUMBER(S): CCA 60450/98

HEARING DATE(S): 06/03/00

JUDGMENT DATE:
10 March 2000

PARTIES :

Regina
v
Douglas James Wade

JUDGMENT OF: Fitzgerald JA at 1; Barr J at 32; Smart AJ at 33

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70207/88

LOWER COURT JUDICIAL
OFFICER : Finlay J

COUNSEL : W C Terracini SC (Appellant)
P G Berman (Crown)

SOLICITORS: T A Murphy (Appellant)
S E O'Connor (Crown)

CATCHWORDS: Criminal law - Appeal against convictions for murder and of having sexual intercourse with a child under 10 - application for extension of time to appeal - whether admission of "relationship" evidence constituted a miscarriage of justice - sufficiency of evidence of penetration - directions on the necessary mental elements

DECISION: Extension of time to appeal refused

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60450/98
C 70207/88

FITZGERALD JA
BARR J
SMART AJ
Friday 10 March, 2000

REGINA v WADE
JUDGMENT

1 FITZGERALD JA: On the evening of Saturday, 13 August, 1988, the appellant killed Jessica Francis Cordner, the 22 month daughter of his girlfriend, Maxine Cordner. 2 The injuries which killed the child were inflicted on her during a period of perhaps 15 - 30 minutes in which she was alone in the house with the appellant and her 3 year-old brother. Shortly before her mother left, the child was bathed and dressed in a nappy, pyjamas and / or a tracksuit. When she was taken to hospital after her mother returned to find her comatose, if not dead, there were indications of recent injuries which had not been present earlier, including bruising to her abdomen, throughout most of the circumference of her hymen and to the left of the hymen in deeper tissue, and between the bottom of her vaginal opening and her anus (below and either side of her fourchette), a haemorrhage and laceration of the right side of her clitoris (with fresh blood) with bruising in the more distal extension, and two small linear abrasions (one with attendant bruising) on her right labia majora. The child’s death resulted from bleeding from a ruptured mesocolon, duodenum and liver. 3 On 20 September 1989, the appellant was convicted of murdering the child and sentenced to penal servitude for life to commence from 13 August 1988. On the same day, he was convicted of having sexual intercourse with the child, a person under the age of ten years, and sentenced to penal servitude for ten years to commence from 13 August 1988. That sentence has been served. 4 On 6 August 1998, a little less than nine years after he was convicted and sentenced, the applicant filed a notice of appeal and a notice of application for an extension of time within which to appeal. 5 The application for an extension of time stated that the notice of appeal was not lodged within ten days of conviction or sentence because “[t]he psychological condition of the…

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.

Continue reading Regina v Wade

Details

AGLC: Regina v Wade [2000] NSWCCA 56
Case: [2000] NSWCCA 56
Decision Date: 10 March 2000

CaseChat Overview and Summary

In the case of Regina v Wade, the appellant was convicted of the murder of a child under the age of 10 and of having sexual intercourse with a child under the age of 10. The appellant sought leave to appeal against his convictions on the grounds that the admission of certain evidence related to a "relationship" between the parties constituted a miscarriage of justice and that the evidence of penetration was insufficient. The court was also asked to consider whether the trial judge had adequately directed the jury on the necessary mental elements of the crimes.

The primary legal issues before the court were whether the admission of the "relationship" evidence constituted a miscarriage of justice, the sufficiency of the evidence to prove penetration, and whether the trial judge had properly directed the jury on the necessary mental elements for the crimes of murder and sexual intercourse with a child under 10. The court needed to determine if the evidence was admissible and whether it played a significant role in the jury's decision-making process. Additionally, the court had to assess if the evidence of penetration was sufficient to prove the sexual intercourse charge beyond reasonable doubt. Finally, the court needed to examine whether the trial judge had correctly instructed the jury on the mental elements required for the crimes.

The court found that the admission of the "relationship" evidence did not constitute a miscarriage of justice as it was relevant to the circumstances of the case and did not unfairly prejudice the appellant. The court concluded that the evidence of penetration was sufficient to support the conviction for sexual intercourse with a child under 10. However, the court found that the trial judge had not adequately directed the jury on the necessary mental elements for the crimes of murder and sexual intercourse with a child under 10. Despite this error, the court held that it did not affect the safety of the convictions and therefore the appeal was dismissed.

The court dismissed the appeal against the appellant's convictions for murder and of having sexual intercourse with a child under 10. The application for leave to appeal was also dismissed.

Orders