AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 28 May 1999

Regina -v- Baker

[1999] NSWCCA 129

Assault & violence
CRIMINAL LAW JUDGE SITTING WITHOUT JURY

Citation: Regina v Baker [1999] NSWCCA 129
Court: Court of Criminal Appeal, New South Wales
Date: 28 May 1999
Judge(s): Wood CJ at CL, Ireland J, Kirby J

Background

The appellant was tried before an Acting District Court Judge, sitting without a jury, on charges of maliciously wounding his former wife with intent to murder (s 27, Crimes Act 1900) and, in the alternative, with intent to cause grievous bodily harm (s 33, Crimes Act 1900). The incident occurred in November 1996, when the former wife was struck by the appellant's vehicle outside her home in the early hours of the morning. She suffered a serious head wound requiring fifteen sutures, along with multiple other injuries.

The trial judge acquitted the appellant of both the principal charges but convicted him of the statutory alternative of malicious wounding under s 35 of the Crimes Act 1900, which carries a maximum of seven years' penal servitude. The appellant was sentenced to a two-year minimum term, which he had already served by the time the appeal was heard.

The appeal raised four grounds, challenging the adequacy of the trial judge's legal reasoning in what was a judge-alone trial.

  • Whether the trial judge erred in his directions on malice, specifically by failing to address the meaning of "recklessness" adequately
  • Whether the trial judge failed to give a proper warning about the potential unreliability of the complainant's evidence, as required by s 165 of the Evidence Act 1995
  • Whether the trial judge failed to apply the established legal principles governing the use of lies told by the appellant, in breach of s 33(2) and s 33(3) of the Criminal Procedure Act 1986
  • Whether the conviction was unsafe and unsatisfactory on the evidence

Decision

The Court dismissed the first ground of appeal, finding no reversible error in the trial judge's treatment of malice. The Court also dismissed the fourth ground, accepting that ample evidence existed to support the conviction for malicious wounding.

On the second ground, the Court found that a warning under s 165 of the Evidence Act 1995 was warranted in respect of the complainant's evidence. In a judge-alone trial, s 33(2) and s 33(3) of the Criminal Procedure Act 1986 require the judge to record, in writing, the considerations taken into account and the findings of fact on which the verdict is based. The trial judge had identified reasons to be cautious about the complainant's evidence but had not reflected those concerns in the required manner, constituting a breach of those provisions.

On the third ground, the Court held that the trial judge had not properly applied the principles governing the use of lies as evidence of consciousness of guilt. Drawing on established authority, the Court noted that a lie does not of itself establish the truth of a contrary proposition, and specific findings and legal reasoning are required before a lie can be used in that way. Although the trial judge may have been justified in concluding the appellant had lied, it was not enough to reach that conclusion without setting out the applicable legal principles and the findings of fact relied upon. This was a further breach of s 33(2). Both grounds gave rise to substantive questions of law, making application of the proviso under s 6(1) of the Criminal Appeal Act 1912 inappropriate.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • In judge-alone criminal trials in New South Wales, ss 33(2) and 33(3) of the Criminal Procedure Act 1986 impose a positive obligation on the trial judge to record in writing the considerations taken into account and the findings of fact underlying the verdict.
  • Where a warning about witness reliability under s 165 of the Evidence Act 1995 would have been required had the matter been tried by jury, the equivalent obligation applies in a judge-alone trial and must be reflected in the judge's written reasons.
  • A finding that an accused told a lie does not, without more, establish the truth of the contrary proposition. Before lies can be used as evidence of consciousness of guilt, the judge must explicitly identify and apply the relevant legal principles, not merely note that the accused was untruthful.
  • Substantive breaches of ss 33(2) and 33(3) of the Criminal Procedure Act 1986 engage the second limb of s 6(1) of the Criminal Appeal Act 1912, and the proviso (which would otherwise permit a court to dismiss an appeal despite error) is not available in such circumstances.
  • Sufficient evidence to support a conviction does not insulate a verdict from appeal where the trial judge's legal reasoning process was deficient, particularly in a judge-alone trial where written reasons carry added significance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 27, 33, 35
- Criminal Procedure Act 1986 (NSW), ss 33(2), 33(3)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 165

Cases
- R v Coleman (1990) 19 NSWLR 467
- Stokes & Difford (1990) 51 A Crim R 25
- R v Murray (1987) 11 NSWLR 12
- Longman v The Queen (1989) 168 CLR 79
- Fleming v Regina (1998) 158 ALR 379
- Edwards v The Queen (1993) 178 CLR 191
- R v Lucan [1981] 1 QB 720
- Edmunds v Edmunds & Ayscough [1935] VLR 177