Bayley V the Queen

Summary of Judgment

BAYLEY v THE QUEEN

[2016] VSCA 160

13 July 2016

On 19 June 2013, Adrian Bayley was sentenced to life imprisonment with a non- parole period of 35 years for the rape and murder of Gillian Meagher. Whilst serving that sentence, Bayley faced three jury trials in the County Court for rape and other offences perpetrated against a further three victims, ‘GH’, ‘BC’ and ‘HS’.1

In all three trials, the jury convicted Bayley of all the offences on the respective indictments. On 28 May 2015, a judge of the County Court sentenced the applicant to 18 years’ imprisonment for the offences and fixed a new non-parole period of 43 years.

Bayley sought leave to appeal against the convictions in the trials in respect of GH and HS. He also sought leave to appeal against his sentence on the ground that the new non-parole period of 43 years was manifestly excessive.

Today, the Court of Appeal allowed Bayley’s appeal against his convictions in respect of GH. Those convictions were quashed and a verdict of acquittal entered. The Court dismissed Bayley’s appeal against his convictions in respect of HS.

In view of the Bayley’s successful appeal against his convictions in respect of GH, the sentences on those convictions were set aside. The Court otherwise affirmed the individual sentences and orders for cumulation made by the County Court judge in respect of the offences against BC and HS.

In the result, Bayley was sentenced to a total effective sentence of 12 years and 9 months’ imprisonment, to be served concurrently with the life sentence imposed

1 To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment summary has been anonymised by the adoption of pseudonyms in the place of names of persons. 2 on the applicant for the offences against Gillian Meagher. The Court fixed a new single non-parole period of 40 years, to commence 28 May 2015.

Convictions for offences against GH

Bayley sought to appeal against his convictions in respect of GH on the ground that the jury’s verdicts were unreasonable or unable to be supported having regard to the evidence. In substance, the main thrust of his case was that the trial judge had erred in permitting GH’s identification evidence to be led.

The offences against GH were alleged to have occurred sometime between 31 October and 1 December 2000. At that time, GH was occasionally involved in street prostitution. She said that one afternoon in St Kilda, a red Mini Minor pulled up beside her in the street and the male driver asked if she wanted to make money. She got into the car. The male then drove his car into a narrow alleyway and attacked GH.

The prosecution case relied heavily on GH’s identification of Bayley as her attacker. The first identification occurred in 2012. GH was looking at a missing persons page on Facebook for Gillian Meagher when she saw a photo of Bayley and identified him as the man who attacked her. That photo of Bayley had been taken in 2011. After making the Facebook identification, GH made a statement to police. In February 2013, she attended a police station to view a photo board and picked a photograph of Bayley out of 12 photographs. By the time of GH’s photo board identification, she had seen Bayley’s image in the media on a number of occasions, and had been told by police that Bayley had been charged with her rape.

The Court of Appeal held that GH’s identification evidence should have been excluded from the trial. The circumstances of the Facebook and photo board identifications meant that they had virtually no probative value, and any probative value was significantly outweighed by the risk of unfair prejudice.

Without the identification evidence, there was no evidence upon which a jury could find Bayley guilty. Accordingly, the Court held that his convictions in respect of GH could not stand.

The Court also held that, even if GH’s identification evidence was properly received, on the evidence as a whole it was not open to a properly instructed jury to convict Bayley.

Convictions for offences against HS

Bayley sought to appeal against his convictions in respect of HS on two grounds: 3

1. The jury’s verdicts were unreasonable or unable to be supported having regard to the evidence.

2. The trial judge erred in allowing the prosecution to lead evidence of location codes and descriptions from Bayley’s mobile phone records.

The offences against HS were alleged to have occurred at around 3am on 15 July 2012. HS had been drinking at the Elephant and Wheelbarrow Hotel in St Kilda with some housemates. She left the pub alone at around 2.30am. As she walked down Fitzroy St, a car approached her and the male driver offered a ride home. HS got into the car at around 3am. The male then drove the car into a parking place and attacked and raped HS. HS convinced the driver that they should go back to her home. When they entered the house, HS ran inside to the bathroom. The man then fled.

On the night of 14 July 2012, Bayley had been out with his girlfriend and some friends. He and his girlfriend argued. He drove his girlfriend home to Coburg in the early hours of the morning, where his girlfriend told him that he was not welcome in their bed, and he went outside. The next morning, when his girlfriend awoke, Bayley was asleep on the floor. He said that he had slept in his car.

At the trial, the judge permitted the prosecution to lead evidence of records of Bayley’s and his girlfriend’s telephone calls between 14 and 15 July 2012. The records showed that Bayley made 15 calls to his girlfriend between 2.42am and 2.57am on 15 July 2012. After the 2.57am call, there was no activity on Bayley’s phone until 4.13am, when he sent a message to his girlfriend. Between 2.43am and 3.30am, Bayley’s girlfriend made 19 calls to his phone which went unanswered; she also sent him 8 text messages between 3.15am and 3.41am. Evidence given at the trial about the location codes attaching to Bayley’s phone calls between 2.42am and 2.57am indicated that they were made within 15km of cell towers located in (among other places) Fitzroy, South Richmond and St Kilda North.

Bayley submitted that the telephone records were not relevant in the sense used by s 55 of the Evidence Act 2008, and therefore should have been excluded. The Court of Appeal rejected this argument. The Court was of the view that the records were clearly relevant to a fact in issue, being Bayley’s opportunity to commit the crimes with which he was charged.

The Court of Appeal further held that it was well open to the jury on all of the evidence to convict Bayley of the offences against HS. The Court pointed to at least five aspects of the evidence which led to that conclusion:

1. The telephone records demonstrated that Bayley had the opportunity to commit the relevant offences. The records were also capable of founding an 4

inference that he was unable or unwilling to use his phone between 2.57am and 4.13am, during the period when HS was attacked. 2. CCTV footage showed a car fitting the general description of Bayley’s vehicle in close proximity to the Elephant and Wheelbarrow Hotel near the time when the attack occurred. 3. The descriptions given by HS to police were generally consistent with Bayley’s appearance. 4. The FACE image compiled by police based on HS’s description two days after the attack bore a telling resemblance to Bayley. 5. HS had selected Bayley’s photograph from a photo board containing 12 photos.

On appeal, Bayley drew attention to a number of discrepancies between HS’s description of the attacker and his car, and Bayley’s actual appearance and car. The Court held that it was open to the jury to have reasoned that these discrepancies could be explained by the circumstances in which HS observed her attacker and his car.

Sentence

As the Court set aside Bayley’s convictions in respect of the offences against GH, it sentenced Bayley anew.

The Court saw no reason to disturb either the individual sentences or the orders for cumulation made by the trial judge in respect of the offences against BC and HS.

In setting a new non-parole period of 40 years, the Court observed that Bayley’s offending was utterly abhorrent. His criminal history included convictions for sexual offences, for which he was imprisoned, in 1991 and 2002. Bayley was on parole and appeal bail when he committed the offences against BC and HS. This history left little room for optimism concerning his prospects for rehabilitation. (See paragraphs [182]–[193] of the judgment)

Pro bono assistance

At the conclusion of its judgment, the Court acknowledged the pro bono assistance given to Bayley by senior and junior counsel and by their instructing solicitors. The Court noted that it was regrettable that Bayley was declined legal aid for his applications.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.