REGINA v. BAYLISS [2001] NSWCCA 520

New South Wales Court of Criminal Appeal

CITATION : REGINA v. BAYLISS [2001] NSWCCA 520 FILE NUMBER(S) : CCA No. 60713 of 2001 HEARING DATE(S) : Wednesday 12 December 2001 JUDGMENT DATE : 12 December 2001

PARTIES : REGINA v. BAYLISS, Garry JUDGMENT OF : Greg James J at 1; Bell J at 7

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 92/31/0624 LOWER COURT JUDICIAL McGuire, DCJ. OFFICER :

COUNSEL : Crown: L.M.B. Lamprati App: In person SOLICITORS : Crown: S.E. O'Connor App: In person CATCHWORDS : Criminal appeal - direction - applicant relying on fresh evidence to file affidavits. LEGISLATION CITED : Evidence Act 1995 CASES CITED: N/A DECISION : Direct that the applicant, should he wish to rely on fresh evidence, file and serve affidavits from his witnesses in a timely manner to permit the Crown to know the nature of the case it has to meet, the affidavits to be provided on or before Monday 21 January 2002.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

No. 60713 of 2001 GREG JAMES, J. BELL, J.

WEDNESDAY 12 DECEMBER 2001 REGINA v. GARRY BAYLISS

JUDGMENT 1 GREG JAMES, J: This is an application by the Crown pending an appeal which is listed in the Court for 30 January 2002. That appeal, so we are told, involves some question of the applicant calling fresh evidence, as to the circumstances of entering the plea to the offence, from two persons who he informs us have been the subject of some harassment since he made it known that there were persons who might give evidence on his behalf in the Court of Criminal Appeal. 2 The Crown seeks a direction that, if their evidence is to be given in this court, the usual practice be followed: they file affidavits as to the matters about which it is sought that they should give evidence in chief and be available for cross-examination. 3 That application is opposed on the basis that it is said they might be the subject of some threat which might cause their evidence to be withdrawn. 4 However, once the affidavits are filed, the evidence cannot be, as it were, withdrawn. The evidence is filed in permanent form with the Court and may be relied on even in the case of a change of evidence in certain circumstances referred to in the Evidence Act 1995. The very filing of the affidavits might well go some way to avoiding the very danger of which the applicant speaks. 5 For my part, I am of the view that no such reason has been advanced as should require other than the usual course being taken; that is, that a direction should be given that the applicant, should he wish to rely on fresh evidence, should file and serve affidavits from his witnesses in a timely manner to permit the Crown to know the nature of the case it has to meet. 6 I propose a direction that the affidavits be provided on or before Monday 21 January 2002. 7 BELL, J: I agree. 8 GREG JAMES, J: They are the orders of the court. ********