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Court of Criminal Appeal 10 March 2000

Regina v Wade

[2000] NSWCCA 56

Sexual offencesHomicide
CRIMINAL LAW SUFFICIENCY OF EVIDENCE OF PENETRATION

Citation: Regina v Wade [2000] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 10 March 2000
Judge(s): Fitzgerald JA; Barr J; Smart AJ

Background

The appellant was convicted in September 1989 of murdering a 22-month-old child and of having sexual intercourse with a child under the age of ten. The offences occurred on the evening of 13 August 1988, when the child was left in his care. Medical evidence revealed extensive injuries, including genital bruising and internal abdominal trauma that proved fatal.

The appellant, who was in a relationship with the child's mother, admitted striking the child once with a backhand blow to the abdomen but denied any sexual contact. He served the ten-year sentence for the sexual assault conviction; he remained subject to the life sentence imposed for murder.

Nearly nine years after conviction, in August 1998, the appellant filed a notice of appeal and sought an extension of time to appeal. The original grounds, which relied on fresh evidence, were subsequently abandoned. By November 1999, entirely new grounds had been substituted, challenging the admission of prior injury evidence and aspects of the trial judge's directions.

  • Whether the Court should grant an extension of time to appeal, given the approximately nine-year delay and the inadequate explanation offered for it
  • Whether the admission of "relationship evidence" (evidence of prior injuries inflicted on the child in the months before her death) constituted a miscarriage of justice warranting a new trial on the murder charge
  • Whether the evidence of penetration was sufficient to sustain the sexual assault conviction
  • Whether the trial judge's directions to the jury on the mental element required for sexual intercourse (specifically, the intention to penetrate) were adequate

Decision

Extension of time. The only affidavit supporting the extension application was not filed until two days before the hearing and provided no adequate explanation for the delay. The prosecution acknowledged general prejudice from the passage of time and accepted that an extension should be granted only if a substantial miscarriage of justice was established. The Court approached the application on that basis.

Relationship evidence and the murder conviction. The Court accepted that evidence of the appellant's prior violence toward the child was admissible where it rationally bore on the issues at trial, including the nature of the fatal assault and the appellant's state of mind. The trial judge had addressed this evidence carefully in his summing-up, identifying specific prior incidents and directing the jury on the limits of such evidence. No objection had been taken at trial, no redirection had been sought, and there was no adequate basis on which to conclude that a miscarriage of justice had occurred.

Sexual assault conviction. The challenge to the sexual assault conviction was disposed of briefly. At trial, the appellant's entire defence was that he had struck the child only once and had not touched her genitals at all. Through counsel, in the presence of the jury, he expressly abandoned any contention that the genital injuries did not involve penetration of the vagina. The Court found that the appellant could not now raise inconsistent arguments that were tactically abandoned at trial. The attempt to argue inadequate directions on the mental element was similarly unavailable given the way the defence had been conducted.

Conclusion on all grounds. The Court found no miscarriage of justice in relation to either conviction. Because the precondition for granting an extension of time was not met, the application was refused.

Orders Made

  • Extension of time to appeal against the convictions for murder and sexual assault refused.

Key Takeaways

  • An extension of time to appeal will not be granted merely because a long delay has occurred; an applicant must establish either an adequate explanation for the delay or, where the prosecution accepts this as the threshold, a substantial miscarriage of justice.
  • Evidence of prior violence by an accused toward a deceased victim is admissible where it rationally assists the jury in determining the nature of the fatal conduct and the accused's mental state, provided appropriate directions on the limits of that use are given.
  • Where a defence expressly abandons a contention before the jury, the accused cannot revive inconsistent arguments on appeal. The Court of Criminal Appeal declined to allow the appellant to challenge the sufficiency of penetration evidence after his counsel had disclaimed that very argument at trial.
  • No miscarriage of justice arises from the absence of a direction where no objection, request for redirection, or complaint was raised at trial, at least where the omission does not otherwise produce an unfair outcome.
  • For murder, the requisite mental element involves an intention to kill or cause grievous bodily harm, or reckless indifference to human life; for the sexual intercourse offence, an intention to penetrate was required, and the Court confirmed that these elements were adequately addressed on the evidence and directions given.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules 1952 (NSW), r 4

Cases
- No specific cases were cited in the portions of the judgment provided.