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Court of Criminal Appeal 22 March 2004

REGINA v Wayne BALDWIN

[2004] NSWCCA 21

Sexual offencesAssault & violence

Citation: REGINA v Wayne BALDWIN [2004] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 22 March 2004
Judge(s): Levine J, O'Keefe J, Bell J (Bell J delivered the leading judgment; Levine and O'Keefe JJ agreed)

Background

The appellant was tried in the District Court on an indictment containing twenty-six counts of sexual assault and common assault against a single complainant, referred to as JL. The alleged offences spanned the period from October 1981 to March 1984, when JL was a teenager in the care of the Department of Community Services and living with the appellant in Kings Cross. The appellant pleaded not guilty to all counts.

At trial, five counts were dismissed by direction at the close of evidence. The jury convicted the appellant on the remaining twenty-one counts. The District Court sentenced the appellant to an aggregate term of twenty years' imprisonment with an effective non-parole period of fifteen years.

The appellant brought this appeal against both conviction and sentence. He raised grounds relating to the refusal to permanently stay the proceedings as an abuse of process, and the trial judge's failure to give the jury adequate directions concerning a substantial body of evidence about uncharged sexual misconduct.

  • Whether the trial judge erred in refusing to permanently stay the proceedings as an abuse of process, having regard to the age of the matters, missing evidence, and the complainant's earlier refusal to give evidence in 1988
  • Whether the trial judge erred in failing to direct the jury on the use it could make of evidence of uncharged acts of sexual misconduct involving the appellant
  • Whether, if the appeal succeeded, the appropriate consequential order was acquittal or a new trial
  • Whether a specific acquittal by direction was appropriate for count 17

Decision

The Court of Criminal Appeal rejected the ground relating to the permanent stay. While the circumstances of delay and the loss of the complainant's original 1986 statement were acknowledged, the Court was not persuaded that the proceedings constituted an abuse of process or that the appellant could not receive a fair trial.

The Court upheld the appeal on the ground concerning jury directions. The trial had involved a considerable volume of evidence about uncharged acts of sexual misconduct by the appellant. Neither defence counsel nor the trial judge turned their attention to the need for directions explaining how the jury could use that evidence. The absence of any such directions constituted a material misdirection that caused the trial to miscarry.

In relation to count 17 specifically, the Court found that no reasonable jury, properly directed, could have returned a guilty verdict on the evidence. The Court therefore directed a verdict of acquittal on that count. For count 18, the Court declined to substitute an acquittal, concluding that this count should be treated consistently with the remaining counts rather than singled out for special treatment.

On the question of a new trial, the Court declined to accede to the appellant's submission that no new trial should be ordered. It held that the allegations involved serious criminal offences and that the public interest in having a jury determine guilt weighed in favour of a retrial. The Court also noted that the number of counts on the indictment may itself have contributed to the difficulties encountered at trial, and that the Director of Public Prosecutions would need to consider whether to proceed on so many counts.

Orders Made

  • Appeal allowed
  • Convictions and sentences imposed in the District Court quashed
  • On count 17: judgment and verdict of acquittal directed
  • On the balance of the indictment: new trial directed

Key Takeaways

  • Where a trial involves substantial evidence of uncharged misconduct, the trial judge is obliged to direct the jury on the proper use of that evidence; failure to do so can cause the entire trial to miscarry.
  • The Court of Criminal Appeal confirmed that a permanent stay of criminal proceedings requires a high threshold and will not be granted merely because evidence has been lost or proceedings have been significantly delayed.
  • An acquittal can be directed by the Court of Criminal Appeal where no reasonable jury, properly directed, could convict on the evidence for a particular count, but this is not the default consequential order when a trial has miscarried on other grounds.
  • A public interest in prosecuting serious criminal offences generally weighs in favour of ordering a new trial, even where the original proceedings were burdened by evidentiary and procedural difficulties.
  • Running an indictment containing a very large number of counts carries the risk of compounding the difficulties of trial management, including the proper identification and direction of issues arising from uncharged conduct evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- L v Johnson and the DPP [2003] NSWSC 1246
- BRS v The Queen (1997) 191 CLR 275
- Maric v R (1978) 52 ALJR 631
- R v Anderson (1991) 53 A Crim R 421
- R v ATM [2000] NSWCCA 475
- R v Dixon [2001] NSWCCA 39
- R v Goldburg, Court of Criminal Appeal, unreported, 23 February 1993
- R v RNS [1999] NSWCCA 122
- R v Tolmie, Court of Criminal Appeal, unreported, 7 December 1994
- Williams v Spautz (1992) 174 CLR 509