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Court of Criminal Appeal 30 October 2002

R v Baird

[2002] NSWCCA 460

Sexual offences
CRIMINAL LAW AGGRAVATED SEXUAL ASSAULT INCONSISTENT VERDICTS EVIDENCE FORENSIC TESTING INCONSISTENT EVIDENCE

Citation: Baird v R [2002] NSWCCA 460
Court: Court of Criminal Appeal, New South Wales
Date: 30 October 2002
Judge(s): Beazley JA; Sperling J; Carruthers AJ

Background

The appellant was tried in the District Court on four counts: two charges of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW), involving two separate complainants, and two charges of stealing under s 94 of the same Act. The jury convicted him on both sexual assault counts and on the stealing charge relating to one complainant, but acquitted him on the stealing charge relating to the other complainant, Ms Sloan.

The appellant challenged his conviction for the sexual assault against Ms Sloan, arguing the inconsistent verdicts, alleged evidentiary unfairness, and fabrication by police and witnesses rendered the conviction unsafe. He appeared before the Court of Criminal Appeal in person, relying on written and oral submissions, and filed five statutory declarations in support of his appeal.

  • Whether the jury's acquittal on the stealing charge involving Ms Sloan made the guilty verdict on the related sexual assault charge logically inconsistent and therefore unsafe
  • Whether the prosecution's handling of forensic evidence, including access to the alleged assault vehicle and DNA testing of a condom, was unfair to the appellant
  • Whether police and Crown witnesses fabricated evidence, tainting the sexual assault conviction

Decision

The Court rejected the inconsistent verdicts argument. Beazley JA reasoned that the stealing and sexual assault counts were materially different in nature: the stealing charge concerned alleged conduct that occurred after the assault, and the evidence supporting each count was distinct. Critically, the sexual assault conviction rested not only on Ms Sloan's own evidence but on substantial corroborating objective evidence, including observations by a service station proprietor of marks on Ms Sloan's neck, a witness who saw her in a dishevelled state, a sticky substance on her wrists, and grey tape found in the appellant's car that both complainants independently described being bound with. The Court was satisfied the verdicts did not represent an affront to logic or commonsense.

On the forensic evidence ground, the Court found no unfairness. The argument that blood stains ought to have been present in the car was not established as a matter of necessity, and the Court was not persuaded that access to the vehicle would have made any difference given the strength of the other objective evidence. The loss of the condom for several months and the absence of the appellant's explicit consent to DNA testing on it were also dismissed: the appellant had voluntarily provided blood samples for DNA matching and did not contest the DNA result.

The fabrication allegation rested on the premise that because the jury disbelieved Ms Sloan on the stealing charge, her evidence and the statements taken by Constable Wiedemann must have been fabricated. The Court rejected this reasoning as illogical. A finding that Ms Sloan was not believed on one count did not implicate the constable in fabrication. While Constable Wiedemann conceded an error in his affidavit, even the appellant acknowledged it may have been no more than a confusion about dates. The Court was not satisfied there was any fabrication.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Inconsistent verdicts do not automatically undermine a conviction where the counts involve different evidence and different subject matter; the relevant question is whether the verdicts constitute an affront to logic and commonsense.
  • Strong corroborating objective evidence can sustain a sexual assault conviction even where a jury rejects a complainant's evidence on an associated charge.
  • Under s 97 of the Evidence Act 1995 (NSW), tendency evidence from one complainant's account can support another complainant's evidence where the two accounts share distinctive features and there is no suggestion the complainants shared knowledge of each other's allegations.
  • A jury's disbelief of a witness on one count does not, without more, establish that the witness or police fabricated evidence on a different count.
  • No legal requirement exists for an accused's consent to conduct DNA testing on physical exhibits once that accused has voluntarily provided a biological sample for DNA comparison purposes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 94
- Evidence Act 1995 (NSW), s 97

Cases:
- MacKenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- Regina v Markuleski (2001) 52 NSWLR 82