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. In relation to the sexual assault conviction: 3. The verdict is unreasonable / not able to be supported by the evidence. 4. The trial judge erred in failing to direct the jury sufficiently or at all in relation to the mental element pertaining to the act of penetration." 9 The only affidavit in support of the application for an extension of time, which was not filed until Thursday, 2 March 2000, does not give an adequate explanation for the delay in appealing or applying for an extension of time. On the other hand, the prosecution stated that its only prejudice was the "general prejudice" which is usually associated with significant delay, and accepted that an extension of time should be granted if, but only if, the Court considered that there has been a substantial miscarriage of justice. See also Criminal Appeal Rules 1952, rule 4. The appellant did not argue that a more liberal approach should be adopted. The appellant's murder conviction - grounds 1 & 2 10 In statements to the child's mother, staff at the hospital and police, and in an unsworn statement to the jury after the close of the prosecution case, the appellant admitted that he had struck the child after she disobeyed him, but claimed that he had only struck her once, by a spontaneous "backhand" blow to her body in the region of her abdomen, knocking her over. Suggestions were raised by the appellant, either directly or by cross-examination, that the child or her brother might have accidentally caused the injuries to her genitals, and that other recent injuries might have been caused by her falling to the floor when she was hit, the vigour with which the appellant had picked her up and her mother had grabbed her on her return, or attempts to resuscitate her by her mother and hospital staff. 11 The jury was required to consider which of the child's recent injuries were inflicted on her by the appellant and the nature and extent of the violence involved. It was also required to consider the appellant's state of mind at the time when he injured the child. The appellant was guilty of murder only if, when he struck and killed the child, he intended to kill her or cause her grievous bodily harm or knew that his assault would probably kill her and was recklessly indifferent to her death. He was guilty of unlawful sexual intercourse only if he had penetrated her vagina, intending to do so. The alternative count of attempted unlawful sexual intercourse also involved an intention to penetrate the child's vagina. The jury's conclusions were dependent upon the appellant's limited admissions and the inferences available from other evidence, including the child's injuries and the possible means by which those injuries could have been sustained. 12 Evidence of prior violence by the appellant towards the child which might have rationally affected the jury's determination of those issues was admissible. 13 However, evidence of earlier injuries to the child was also capable of impermissibly prejudicing the jury against the appellant. Evidence of earlier injuries to the child which did not have a genuine probative effect in relation to the charges against the appellant should not have been admitted. Further, accurate and appropriately detailed instructions concerning the significance of evidence of prior injuries to the child, including directions concerning any assistance which such evidence might provide to the appellant, and the limits on the proper use of such evidence in proof of the appellant's guilt, were called for. 14 In his summing-up the trial judge discussed in considerable detail evidence of two occasions on which the appellant had previously injured the child which the jury might feel were "worthy of … taking into consideration". 15 Both from other evidence and the appellant's statements to police, he struck the child early in May 1988, not long after he had begun associating with her mother. 16 The appellant told police that he "clipped [the child] … around the head", and "left a hell of a bruise on her", which "scared the hell out of [him]". It was initially only a "little bruise" which "ended getting real big". Contrary to his statements that he had not subsequently struck the child until the night when he killed her, the appellant told police "I've hit her since but like I've hit her with a little pillow I didn't want to hurt her." 17 Other witnesses, including the child's mother, gave evidence that, following that assault by the appellant early in May 1988, the child had substantial bruising to her hips and / or thighs and her stomach "below her belly button". Medical evidence was given that considerable force would have been required to cause the bruising. The child was subsequently observed to be limping and "leaning to one side". According to some witnesses, the child also had bruises over the groin area, which a doctor who examined the child thought might have been caused by considerable finger pressure. 18 The appellant told the child's mother that he had given the child, who was whinging, a "backhander on the nappy", and, when "she didn't stop … he hit her on the leg". He told the child's uncle that she "threw her head forward and her head hit his hand and her nose started to bleed." 19 On Friday 15 June, the child was again injured while being cared for by the appellant. The appellant told her mother that the child ran into a wire fence when running away from a neighbour's dog, fell over, got up, fell over again "and he picked her up again and then he went up and opened the front door and she was going up the stairs and … got to the second step from the top and fell and the railing on the side of the stairs stopped her from falling right down …".He said that "she didn't cry very much". 20 The child received bruises to her buttocks and to both sides of her face. The bruises to her face, which extended from front to rear and involved her ears, "were very characteristic of slap marks" from an adult hand, according to a paediatrician who examined her. Considerable force was involved. The child's grandmother gave evidence that "she was very badly bruised right down the right side of her face, right down to under her chin. There was just a mottled mass of bruises, they were sort of light and dark patches and from the bottom of her bottom to the back of her knees almost on both legs…" 21 The trial judge instructed the jury that the evidence relied upon by the prosecution to prove that the appellant had previously injured the child was evidence which might assist it to be satisfied that, at the time when he struck the child causing her death, he either intended to cause her death or grievous bodily harm or knew that her death was a probability and was recklessly indifferent to the loss of her life. 22 Considered in the abstract, the lack of detail in the summing-up might be regarded as objectionable. It was not explained to the jury how the evidence of the appellant's prior violence towards the child could assist it to determine his state of mind when he struck and killed her. However, the appellant's counsel plainly did not want the trial judge to elaborate. More detailed directions would have informed the jury that the earlier violence could assist it to decide on the nature and extent of the violence which the appellant inflicted on the child when he killed her, which could in turn assist it to determine whether he intended to cause the child grievous bodily harm, which was sufficient to support a murder verdict. The appellant's counsel was expressly invited to object to the summing-up or request further directions or redirections and, understandably, declined to so. 23 Neither the admission of the evidence of the appellant's earlier violently injuring the child nor the summing-up involved a miscarriage of justice. 24 In this Court, the appellant also complained that evidence was admitted of earlier injuries to the child which, it was submitted, might, on the evidence, have been caused by some other person, not the appellant. However, the appellant's argument on this point took an artificially narrow approach to the inferences which were open to the jury and its entitlement to consider all of the evidence in conjunction. Further, the trial judge's summing-up at least substantially diminished, if not eliminated, the significance of evidence of any injuries to the child which might not have been caused by the appellant. In the absence of any suggestion at trial that the trial had miscarried because of the reception of that evidence or any objection to the material portion of the summing up or request for a redirection or further directions, a conclusion that there has been a miscarriage of justice because of that evidence is unwarranted. 25 In summary, there was no miscarriage of justice associated with the appellant's conviction for murder. The appellant's conviction for sexual assault - grounds 3 and 4 26 The appellant's attempt to challenge his conviction for sexual assault can be disposed of briefly. 27 The appellant seeks to raise arguments that the trial judge omitted to instruct the jury that the appellant was not guilty of sexual assault or attempted sexual assault unless he intended to penetrate the child's vagina, and that he was not in any event guilty of sexual assault because the prosecution had not proved that he penetrated her vagina since all her injuries were external to her vagina. 28 At his trial, the appellant's case was that he had only struck the child once, by a "backhand" blow to her abdominal region, and had not touched her genitals. Alternative, potentially inconsistent, contentions were not raised; for example, the possibility of a prodding or jabbing blow which might have unintentionally caused the injuries to the child's genitals through her clothing. And the possibility that, although caused by the appellant, those injuries did not involve penetration of the child's vagina was expressly abandoned by the appellant, through his counsel, in the presence of the jury. 29 There were doubtless forensic reasons for the appellant's approach at his trial. His claim that he had only struck the child a single blow of the type which he described was important to his defence of both the murder and the sexual assault charges. Further, the contention now sought to be raised that all the injuries to the child's genitals were external to her vagina was inconsistent with some medical evidence and, if accepted by the jury, would have resulted in a conviction for attempted sexual assault, not sexual assault, if the prosecution case on those alternative charges was otherwise accepted. 30 There was no miscarriage of justice associated with the appellant's conviction for sexual assault. 31 Conclusion An extension of time to appeal against the appellant's convictions for murder and sexual assault should be refused. 32 BARR J: I agree with Fitzgerald JA. 33 SMART AJ: I agree with Fitzgerald JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.