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Court of Criminal Appeal 19 April 2023

Bayliss v R

[2023] NSWCCA 84

Firearms & weapons

Citation: Bayliss v R [2023] NSWCCA 84
Court: Court of Criminal Appeal, NSW
Date: 19 April 2023
Judge(s): Adamson JA (lead judgment); McNaughton J and Sweeney J (agreeing)

Background

The appellant was convicted of supplying a firearm (count 2) but acquitted of supplying a second, different firearm (count 3) on the same occasion, 1 February 2017. Both counts arose from a visit he made to a unit in Burwood, where he was alleged to have handed over two firearms in exchange for drugs. He was tried alongside five co-accused charged with more serious offences including murder and attempted murder, though the firearm supply counts related solely to him.

The prosecution's case rested heavily on an induced statement given by a witness, referred to by the pseudonym Ms Sellers, who had accompanied the appellant to the unit. At trial, Ms Sellers retreated from the portions of her statement that implicated the appellant in the supply of firearms, prompting the prosecution to cross-examine her on her own statement under s 38 of the Evidence Act 1995 (NSW). The trial judge warned the jury that it would be dangerous to convict on her evidence alone, and directed that her induced statement was the only direct evidence of the gun supply.

The appellant sought leave to appeal his conviction on count 2, arguing the verdict was unreasonable and unsupported by the evidence, and that it was logically inconsistent with his acquittal on count 3, given that the same witness had provided the evidence for both.

  • Whether the jury's guilty verdict on count 2 was unreasonable or unsupported by the evidence, given the reliance on an induced statement from a witness who resiled from her account at trial.
  • Whether the guilty verdict on count 2 was logically inconsistent with the not guilty verdict on count 3, when both counts depended substantially on the evidence of a single witness.

Decision

On the first ground, the Court held it was open to the jury to accept the contents of Ms Sellers' induced statement and to be satisfied beyond reasonable doubt of the appellant's guilt on count 2. The statement was detailed and largely consistent with objective evidence, including the CCTV footage and the appellant's own admissions. Critically, the footage showed a stark contrast: on the way up in the lift, the appellant positioned himself to avoid the security camera, apparently concealing something under a dark garment; on the way down, having allegedly supplied the firearm, he made no such effort to conceal himself. That behavioural difference provided independent corroboration of Ms Sellers' account in relation to count 2.

On the second ground, the Court rejected the proposition that split verdicts are necessarily inconsistent simply because both counts depend on a single witness. Relying on the High Court's reasoning in MFA v The Queen (2002) 213 CLR 606, the Court found the different verdicts were explicable by reference to the presence of supporting evidence for count 2 and the absence of equivalent supporting evidence for count 3. The small, second firearm alleged in count 3 did not feature in the CCTV footage or the appellant's behaviour in the same way. The jury's acquittal on count 3 was consistent with a conscientious application of the trial judge's warning not to convict on Ms Sellers' evidence alone, rather than any rejection of her account as a whole.

The Court concluded that the jury's approach reflected careful adherence to the directions given at trial. An acquittal where corroboration was absent, alongside a conviction where corroboration existed, was not logically incompatible. Both McNaughton J and Sweeney J conducted independent assessments of the evidence and reached the same conclusion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Split verdicts on related counts, both largely dependent on a single witness, are not automatically inconsistent: the decisive question is whether there is a rational, logical basis for distinguishing between the counts.
  • Under the framework confirmed in MFA v The Queen, a jury may accept that a witness is probably telling the truth about two events, yet still acquit on one count if corroborating evidence supports only the other, particularly where a judge has warned against conviction on the witness's evidence alone.
  • An induced statement from a witness who subsequently resiles from inculpatory portions at trial can still form the evidentiary basis for a conviction, provided the statement is detailed and supported by independent, objective material such as CCTV footage.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that behavioural evidence, here the appellant's differential use of concealment before and after the alleged supply, can constitute meaningful corroboration capable of supporting an otherwise contested witness account.
  • No error was established in the jury's reasoning: the acquittal on count 3 was treated as evidence of fastidiousness in applying the trial judge's directions, not as an indication that the jury doubted the witness generally.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 32, 38
- Firearms Act 1996 (NSW), s 51

Cases
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v ACK [2000] NSWCCA 180
- AS v R [2022] NSWCCA 291
- Bridger v R [2022] NSWCCA 125
- Nguyen v R [2017] NSWCCA 145