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District Court 3 August 2020

R v Bayliss

[2020] NSWDC 768

Assault & violenceTheft & propertyFirearms & weapons
DELAY FACEBOOK DISPLACEMENT EFFECT EVIDENCE CIRCUMSTANTIAL IDENTIFICATION EVIDENCE POST OFFENCE CONDUCT

Citation: R v Bayliss [2020] NSWDC 768
Court: District Court of New South Wales
Date: 3 August 2020
Judge: Bright DCJ

Background

Shortly before 2:00 am on 8 June 2014, an intruder entered a unit at Booker Bay wearing a balaclava and armed with a pistol and a knife. The intruder confronted one occupant in his bedroom, demanded money, and when the second occupant arrived, stabbed both men. The intruder's balaclava was removed by a third person present at the unit before she fled to a neighbour's house, where she observed a white Holden Commodore station wagon with black roof rails drive away quickly.

The accused was charged with four counts: aggravated break and enter with wounding (Count 1), aggravated entry with intent to commit robbery as an alternative to Count 1 (Count 2), and two counts of reckless wounding, one for each victim (Counts 3 and 4). The accused was not known to the occupants and pleaded not guilty to all counts.

The accused elected a judge alone trial under s 132 of the Criminal Procedure Act 1986 (NSW), to which the Crown consented. The central question at trial was the identification of the accused as the intruder.

  • Whether the identification evidence of the two Crown witnesses was sufficiently reliable to prove beyond reasonable doubt that the accused was the intruder
  • Whether the Facebook photo identification by one witness was tainted by prior knowledge of the accused's name, and whether a subsequent in-person sighting was affected by the "displacement effect" (where a prior image displaces independent memory of the original encounter)
  • Whether the photo identification procedure conducted over five years after the offence was reliable
  • Whether circumstantial evidence, including DNA on the balaclava, the getaway vehicle, gaol call recordings, and post-offence conduct said to demonstrate consciousness of guilt, supported the identification of the accused
  • Whether the elements of each count on the indictment were established beyond reasonable doubt

Decision

The identification evidence was central to the entire trial. One occupant identified the accused from a Facebook photo, but the defence argued this was worthless because the witness had learned the accused's name before searching for the photo. The same witness later encountered the accused by chance at a probation and parole office; the defence contended that encounter was unreliable because the displacement effect meant the witness was recognising the Facebook photo rather than independently recalling the intruder. The court assessed these issues by considering the honesty and accuracy of each witness, applying the principle that a witness may be accepted in whole or in part.

The second identifying witness, the occupant's girlfriend who removed the balaclava, participated in a formal photo identification procedure conducted more than five years after the offence. The defence challenged her credibility as a witness and argued the identification was unreliable due to the significant delay and physical characteristics described by the witnesses that were said to be inconsistent with the accused's appearance. Expert dental evidence was called for the defence to support the contention that the accused was unlikely to have had a rotten front tooth in 2014, a feature one witness described seeing on the intruder.

On the circumstantial evidence, the balaclava was a significant item. The accused's DNA was on the balaclava, but two other DNA profiles were also present. The defence argued the Crown could not exclude that someone else had worn it. The court also considered recordings of gaol calls as potential admissions, and evidence of the accused's conduct after the offence as demonstrating consciousness of guilt. The description of the getaway vehicle was conceded by the defence to be some circumstantial evidence capable of implicating the accused.

The court was not satisfied beyond reasonable doubt that the accused broke and entered the dwelling (Count 1), returning a not guilty verdict on that count. However, the court was satisfied beyond reasonable doubt on the remaining counts. It accepted that the accused had entered the unit intending to commit robbery, was armed with a firearm (supported by the recovery of five .32 calibre rounds of ammunition found inside the unit), and had stabbed both victims with a knife in circumstances where he must have foreseen the possibility of causing actual bodily harm.

Orders Made

  • Count 1 (aggravated break and enter with wounding): not guilty
  • Count 2 (aggravated entry with intent to commit robbery): guilty
  • Count 3 (reckless wounding of the first occupant): guilty
  • Count 4 (reckless wounding of the second occupant): guilty

Key Takeaways

  • The District Court confirmed that in a judge alone trial, the tribunal of fact applies the same principles of proof, including the requirement that guilt be established beyond reasonable doubt on every element of each count, as would apply in a jury trial.
  • A split verdict is available where the Crown establishes some but not all elements of the principal count; here, the court was not satisfied that a break and enter occurred but was satisfied the accused had entered the premises with intent to rob.
  • Where identification evidence involves a Facebook photo obtained after the witness learned the accused's name, and a subsequent in-person sighting that may have been influenced by that earlier image, the displacement effect is a live issue going to the reliability (not merely the weight) of that identification.
  • Circumstantial evidence, including DNA on a balaclava where multiple profiles are present, a matching getaway vehicle, gaol call recordings, and post-offence conduct, may collectively support identification even where no single item is conclusive, provided the inferences drawn are the only reasonable ones available on the proven facts.
  • Under ss 133(2) and 133(3) of the Criminal Procedure Act 1986 (NSW), and consistent with Fleming v R (1998) 197 CLR 250, a judge conducting a judge alone trial is required to record the general directions of law that would otherwise be given to a jury, and must apply those directions to the facts of the case.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 133(2), 133(3)
- Crimes Act 1900 (NSW), ss 35(4), 111(3), 112(3), 105A(2A)

Cases:
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68