R v Bayliss [2020] NSWDC 768

District Court New South Wales

Medium Neutral Citation: R v Bayliss [2020] NSWDC 768 Hearing dates: 25 May - 15 June, 7 July, 21 July 2020 Date of orders: 3 August 2020 Decision date: 03 August 2020 Jurisdiction: Criminal Before: Bright DCJ Decision: Count 1 – Not Guilty Count 2 – Guilty Count 3 – Guilty Count 4 – Guilty Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone EVIDENCE — Identification evidence — Picture identification – Delay - Facebook – Displacement effect EVIDENCE – Circumstantial identification evidence – Post-offence conduct – Consciousness of guilt - Admissions Legislation Cited: Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Cases Cited: Fleming v R (1998) 197 CLR 250; HCA 68 Category: Principal judgment Parties: Regina (Crown) Jacob Bayliss (Accused) Representation: Counsel: Mr D Stewart (for the Accused)

Solicitors: Mr D Henschell (Solicitor Advocate for the Crown) Mr J Murray (for the Crown) Mr R Hill (for the Accused) File Number(s): 2019/00033596 Publication restriction: Nil

Judgment

Background 1. On 25 May 2020 Jacob Bayliss (the accused) appeared before Gosford District Court for trial. 2. A judge alone election had been filed pursuant to s 132, Criminal Procedure Act 1986 (NSW). The Crown consented to the judge alone election. Accordingly, the trial proceeded as a judge alone trial. 3. The accused was arraigned on an indictment in the following terms: 1. Count 1 – On 8 June 2014, in Booker Bay in the State of New South Wales, broke and entered the dwelling house of Paul Johnson and Jake McDonald at 2/15 Bogan Road Booker Bay, and then in the said dwelling house committed a serious indictable offence, namely, recklessly wounding Jake McDonald, in circumstances of aggravation, namely Jacob Blake Bayliss knew there was a person or persons present in the dwelling house, and in circumstances of special aggravation, namely, Jacob Blake Bayliss was armed with a dangerous weapon, namely, a firearm (s 112(3), Crimes Act 1900 (NSW)). 2. In the alternative to Count 1 Count 2 - On 8 June 2014, in Booker Bay in the State of New South Wales, did enter the dwelling house of Paul Johnson and Jake McDonald at 2/15 Bogan Road Booker Bay NSW, with intent to commit a serious indictable offence therein, namely, robbery, in circumstances of aggravation, namely Jacob Blake Bayliss knew that there was a person or persons in the dwelling house, and in circumstances of special aggravation, namely, Jacob Blake Bayliss was armed with a dangerous weapon, namely, a firearm (s 111(3), Crimes Act 1900 (NSW)). 1. In the alternative to Count 1 Count 3 - On 8 June 2014, at Booker Bay in the State of New South Wales, did wound Jake McDonald and was reckless as to causing actual bodily harm to Jake McDonald (s 35(4), Crimes Act 1900 (NSW)). 1. Count 4 - On 8 June 2014, at Booker Bay in the State of New South Wales, did wound Paul Johnson and was reckless to causing actual bodily harm to Paul Johnson (s 35(4), Crimes Act 1900 (NSW)). 1. The accused pleaded not guilty to each count. 2. Mr Henschell, Solicitor Advocate, appeared for and on behalf of the Director of Public Prosecutions. 3. Mr Stewart of Counsel appeared for and with the accused. 4. The trial proceeded between 25 May 2020 and 15 June 2020. The trial was also mentioned before the Court on 7 and 21 July 2020. 5. It is alleged by the Crown that shortly before 2.00 am on 8 June 2014 the accused entered the unit of Jake McDonald and Paul Johnson at 2/15 Bogan Rd, Booker Bay. Mr McDonald's girlfriend, Tania Bain, was also staying at the unit. It is alleged that the accused was wearing a balaclava and had a pistol and a knife in his possession. 6. It is alleged that the accused confronted Mr McDonald in his bedroom and pointed a pistol at him. Mr McDonald took hold of the pistol and wrestled with the accused. Mr McDonald was not aware of what happened to the pistol. Mr Johnson came from the lounge room to the hallway after hearing Mr McDonald calling out. It is alleged the accused then produced a knife and stabbed both Mr McDonald and Mr Johnson. At some stage, the accused had demanded money from Mr McDonald. 7. Ms Bain became involved at some stage and removed the accused's balaclava before she then left the unit to seek assistance from a neighbour. Whilst at the neighbour's house, Ms Bain saw a white Holden Commodore station wagon with black roof rails quickly drive away. 8. It is the Crown case that the accused was not known to the occupants of the unit. 9. The fact in issue in the trial is the identification of the accused as the intruder. 10. The Crown case at trial relies upon the identification of the accused by Mr McDonald (from a Facebook photo and a chance meeting at the Wyong Probation and Parole office) and Ms Bain (from a photo identification procedure conducted on 18 August 2019). 11. The Crown also relies upon circumstantial evidence namely, that the balaclava being worn by the intruder belongs to the accused, that the accused had access to a vehicle that matched the description of the getaway vehicle, admissions made by the accused in gaol calls and post offence conduct that demonstrates a consciousness of guilt (an attempt to influence the evidence of a witness). 12. The accused did not give evidence in the trial. The defence case is that the identification of Mr McDonald is of no probative value because firstly, he was aware of the name of the accused before he found the Facebook photo and secondly, the identification at the Wyong Probation and Parole office is tainted because of the displacement effect. Further, the identification evidence of Ms Bain is also of no probative value because she was not an honest witness and the identification is unreliable. Specifically, there were a number of physical characteristics of the intruder that were inconsistent with the physical appearance of the accused or make it improbable that he was the intruder. 13. One of the characteristics of the intruder described by Mr McDonald was a rotten front tooth. Evidence was called in the defence case from a dentist Dr Yang, to establish that it was unlikely that the accused would have had a rotten tooth in 2014 having regard to extensive dental work carried out in 2012. 14. In relation to the circumstantial evidence, in circumstances where two other DNA profiles were found on the balaclava other than that of the accused, the defence case is that the Crown cannot exclude that someone other than the accused has worn the balaclava. Further, the defence case is that the gaol calls are not capable of amounting to admissions and the evidence relied upon as consciousness of guilt can be explained by panic as a result of the accused being confronted with a false accusation. It was conceded that the description of the getaway vehicle was some circumstantial evidence capable of implicating the accused in the offences.