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Court of Criminal Appeal 5 August 2022

Frew v R

[2022] NSWCCA 165

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT

Citation: Frew v R [2022] NSWCCA 165
Court: Court of Criminal Appeal, New South Wales
Date: 5 August 2022
Judges: Brereton JA at [1]; Garling J at [66]; Hamill J at [77]

Background

The appellant was convicted after a judge-alone trial in the District Court of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). He was sentenced to three years and eight months' imprisonment with a non-parole period of two years and three months.

The events occurred in March 2019 between two housemates in Waterloo who had spent the evening out together in Surry Hills. It was common ground that sexual intercourse had taken place. The only issue at trial was consent: specifically, whether the complainant consented and whether the appellant knew she did not.

The trial judge, having given herself a Liberato direction (explained below), found the complainant's account credible and rejected the appellant's evidence on the basis of plausibility. The appellant sought leave to appeal on the sole ground that the verdict was unreasonable having regard to the evidence.

  • Whether the verdict of guilty was unreasonable, in that the trial judge ought to have entertained a reasonable doubt as to the appellant's guilt based on the whole of the evidence
  • Whether, where an appellate court itself entertains a reasonable doubt, the trial judge's advantage in seeing and hearing witnesses could account for the different conclusion reached at trial
  • The correct application of the Liberato direction in a judge-alone trial where the evidence turned entirely on the conflicting accounts of the complainant and the accused

Decision

A Liberato direction takes its name from the High Court decision Liberato v The Queen (1985) 159 CLR 507. It is a self-direction (or jury direction) that even if the fact-finder does not positively believe the accused's account, the accused must be acquitted if that account raises a reasonable doubt about guilt. The trial judge here correctly gave herself this direction but then, the Court of Criminal Appeal found, failed to apply it correctly.

On reviewing the whole of the evidence, the Court found there was at least a reasonable possibility that the appellant's account was true: namely, that the complainant did consent, or that he genuinely believed she did. That reasonable possibility meant the prosecution had not proved its case beyond reasonable doubt. All three judges agreed on this conclusion, with Brereton JA providing the primary reasons.

The second question was whether the trial judge's advantage in observing witnesses live could explain her different conclusion. The Court noted that the trial judge rejected the appellant's account on the grounds of its plausibility, not on any assessment of his demeanour in the witness box. Because plausibility is an assessment that an appellate court is equally equipped to make, the trial judge enjoyed no relevant advantage over the appellate court in this respect. Applying Gittany v R [2016] NSWCCA 182, the Court held that the doubt the appellate court entertained was a doubt the trial judge ought also to have entertained.

The Court granted leave to appeal, allowed the appeal, quashed both the conviction and sentence, and substituted a verdict of acquittal.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction and sentence quashed
  • Verdict of acquittal substituted
  • Appellant ordered to be released forthwith

Key Takeaways

  • In a trial turning solely on the credibility of two directly conflicting accounts, the prosecution must disprove the accused's version beyond reasonable doubt; it is not enough to find the complainant more credible if the accused's account remains a reasonably possible truth.

  • The Liberato principle, confirmed in De Silva v The Queen (2019) 268 CLR 57, requires acquittal where the accused's account raises a reasonable doubt, even if the fact-finder does not affirmatively accept that account.

  • Where a trial judge rejects an accused's evidence on the basis of plausibility rather than demeanour, an appellate court is in an equally good position to assess that reasoning. In such cases, the usual deference given to findings by the primary fact-finder is reduced accordingly.

  • A reasonable doubt entertained by an appellate court following a plausibility-based rejection of the accused's evidence will, absent some relevant advantage held by the trial judge, translate into a finding that the conviction was unreasonable.

  • Unreasonable verdict appeals in word-against-word cases require close appellate scrutiny of the entire record, not merely a review of whether the fact-finder's reasoning was internally consistent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I

Cases
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Gittany v The Queen [2016] NSWCCA 182
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Ford v R [2020] NSWCCA 99
- Bell v R [2017] NSWCCA 207
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- Maughan v R [2020] NSWCCA 51
- Hodgson v R [2022] NSWCCA 22
- Galea v Galea (1990) 19 NSWLR 263