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Court of Criminal Appeal 16 June 2023

Barwick v R

[2023] NSWCCA 139

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION CHILD SEXUAL OFFENCES JUDGE ALONE TRIAL LIBERATO DIRECTION

Citation: Barwick v R [2023] NSWCCA 139
Court: Court of Criminal Appeal, New South Wales
Date: 16 June 2023
Judges: Wright J (primary reasons); Yehia J and Chen J (agreeing)

Background

The appellant was convicted after a judge alone trial in the District Court on three child sexual assault offences under the Crimes Act 1900 (NSW). The complainant was his granddaughter, who was between seven and eleven years old at the time of the alleged conduct. The alleged offences occurred at various locations between 2010 and 2014.

The appellant gave evidence at trial, accepting he had been present at the relevant locations but denying all of the alleged conduct. He also called numerous witnesses who gave evidence of his good character, both generally and specifically in relation to his behaviour with children. The trial judge described this character evidence as "powerful" and "impressive" and accepted it in full.

The trial judge convicted the appellant on all three counts and imposed an aggregate sentence of nine years and six months imprisonment. The appellant sought leave to appeal against conviction only.

  • Whether the trial judge failed to apply the second limb of the Liberato direction, that is, whether she considered whether she had a reasonable doubt even if she did not positively accept the appellant's evidence
  • Whether the trial judge gave adequate reasons for rejecting the appellant's evidence
  • Whether the trial judge failed to apply the second limb of the good character direction, that is, whether she used good character as a reason to doubt the Crown's case (not merely as a credibility aid)
  • Whether the trial judge, having found the complainant credible and reliable, separately considered whether she nonetheless retained a reasonable doubt about the appellant's guilt
  • Whether the verdicts were unreasonable

Decision

Grounds 1 to 4: Failure to apply the directions

Wright J (with Yehia and Chen JJ agreeing) upheld these four grounds. The judgment did not demonstrate, expressly or by implication, that the trial judge had taken the appellant's credibility into account when making her findings of fact and reaching her ultimate conclusions of guilt. Critically, the reasons did not explain how she concluded there was no reasonable possibility the appellant's denials were true, particularly given her own assessment of his demeanour and credibility alongside the powerful character evidence.

The Liberato direction (drawn from Liberato v The Queen (1985) 159 CLR 507) requires a trial judge to consider two distinct questions: first, whether the accused's evidence is accepted; and second, whether, even without positively accepting that evidence, a reasonable doubt remains. Similarly, a good character direction has two limbs: good character supports credibility, but it also independently raises the question of whether a person of that character is unlikely to have committed the offence. The Court found the trial judge's reasons failed to show the second limb of either direction was engaged, constituting legal error.

Ground 5: Unreasonable verdicts

Leave to appeal was granted on this ground, but the appeal on this ground was dismissed. Each member of the Court independently assessed the whole of the evidence and found a reasonable doubt as to the appellant's guilt did arise from that exercise. However, all three judges were satisfied that the trial judge's advantage in seeing and hearing the witnesses, which was not available to the appellate court on the record alone, was capable of resolving that doubt. The Court therefore could not conclude the verdicts were unreasonable.

Outcome

Because errors were established on grounds 1 to 4, and because the Court could not reach a definitive conclusion that guilt had been proved beyond reasonable doubt, the appropriate remedy was to quash the convictions and order a new trial rather than to enter acquittals.

Orders Made

  • Leave to appeal on Ground 5 granted, but the appeal on that ground dismissed
  • Appeal upheld on Grounds 1, 3 and 4
  • Convictions on Counts 1, 3 and 5 quashed
  • New trial ordered on all counts
  • Proceedings listed in the arraignment list in the District Court at Sydney on 23 June 2023

Key Takeaways

  • In a judge alone trial, the written reasons must demonstrate that both limbs of the Liberato direction were applied: the judge must show not only whether the accused's evidence was accepted, but also whether a reasonable doubt persisted regardless of that assessment.
  • Both limbs of a good character direction are legally required to be applied and to be visible in the reasons: good character is relevant both to credibility and as an independent basis for doubting that the accused committed the offence.
  • A finding that the complainant was credible and reliable does not discharge the obligation to separately consider whether a reasonable doubt about the accused's guilt nonetheless exists; these are distinct analytical steps.
  • Where a trial judge's reasons fail to demonstrate that mandatory directions were applied, this constitutes an error of law under s 5(1)(a) of the Criminal Appeal Act 1912 (NSW), and the conviction may be quashed even absent a finding that the verdict itself was unreasonable.
  • In assessing whether verdicts were unreasonable on appeal from a judge alone trial, the Court of Criminal Appeal recognised that a trial judge's advantage in observing witness demeanour is capable of resolving doubt that arises from a review of the written record alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66A(2), 66M(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), ss 132, 133(1)

Key Cases:
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Haile v The Queen (2022) 109 NSWLR 288; [2022] NSWCCA 71
- Constantinidis v The Queen; Lazar v The Queen [2022] NSWCCA 4
- GS v The Queen [2022] NSWCCA 225
- Kanbut v R [2022] NSWCCA 259
- Slattery v R [2023] NSWCCA 117
- Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29