Regina v Wade [2000] NSWCCA 56

New South Wales Court of Criminal Appeal

CITATION : Regina v Wade [2000] NSWCCA 56 FILE NUMBER(S) : CCA 60450/98 HEARING DATE(S) : 06/03/00 JUDGMENT DATE : 10 March 2000

Regina PARTIES : v Douglas James Wade JUDGMENT OF : Fitzgerald JA at 1; Barr J at 32; Smart AJ at 33

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70207/88 LOWER COURT JUDICIAL Finlay J OFFICER :

COUNSEL : W C Terracini SC (Appellant) P G Berman (Crown) SOLICITORS : T A Murphy (Appellant) S E O'Connor (Crown) CATCHWORDS : Criminal law - Appeal against convictions for murder and of having sexual intercourse with a child under 10 - application for extension of time to appeal - whether admission of "relationship" evidence constituted a miscarriage of justice - sufficiency of evidence of penetration - directions on the necessary mental elements DECISION : Extension of time to appeal refused

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60450/98 C 70207/88 FITZGERALD JA BARR J SMART AJ

Friday 10 March, 2000

REGINA v WADE

JUDGMENT

1 FITZGERALD JA: On the evening of Saturday, 13 August, 1988, the appellant killed Jessica Francis Cordner, the 22 month daughter of his girlfriend, Maxine Cordner. 2 The injuries which killed the child were inflicted on her during a period of perhaps 15 - 30 minutes in which she was alone in the house with the appellant and her 3 year-old brother. Shortly before her mother left, the child was bathed and dressed in a nappy, pyjamas and / or a tracksuit. When she was taken to hospital after her mother returned to find her comatose, if not dead, there were indications of recent injuries which had not been present earlier, including bruising to her abdomen, throughout most of the circumference of her hymen and to the left of the hymen in deeper tissue, and between the bottom of her vaginal opening and her anus (below and either side of her fourchette), a haemorrhage and laceration of the right side of her clitoris (with fresh blood) with bruising in the more distal extension, and two small linear abrasions (one with attendant bruising) on her right labia majora. The child's death resulted from bleeding from a ruptured mesocolon, duodenum and liver. 3 On 20 September 1989, the appellant was convicted of murdering the child and sentenced to penal servitude for life to commence from 13 August 1988. On the same day, he was convicted of having sexual intercourse with the child, a person under the age of ten years, and sentenced to penal servitude for ten years to commence from 13 August 1988. That sentence has been served. 4 On 6 August 1998, a little less than nine years after he was convicted and sentenced, the applicant filed a notice of appeal and a notice of application for an extension of time within which to appeal. 5 The application for an extension of time stated that the notice of appeal was not lodged within ten days of conviction or sentence because "[t]he psychological condition of the applicant, and the materialisation of fresh evidence subsequent to such time, did not allow an appeal to be lodged within time." 6 The appellant's original grounds of appeal were as follows: " - The Applicant has available to him fresh evidence, the absence of which at his trial resulted in a miscarriage of justice. - There is a significant possibility that the jury, acting reasonably, would have acquitted the applicant if the new evidence had been before them. - The verdicts are unsafe and unsatisfactory." 7 The matters raised in the application for an extension of time and notice of appeal filed on 6 August 1998 have since been tacitly abandoned. 8 On 5 November 1999, the following were notified as the appellant's grounds of appeal: "In relation to the murder conviction: 1. The trial judge erred in admitting evidence relating to injuries observed to have been sustained by the deceased in the four months prior to her death. 2. A miscarriage of justice was occasioned by the admission into evidence of the significant amount of testimony relating to the injuries observed to have been sustained by the deceased in the four months prior to her death.