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Court of Criminal Appeal 2 August 2023

Bargero v R

[2023] NSWCCA 192

Sexual offences
CRIME APPEALS CONVICTION APPEAL JUDGE ALONE TRIAL INCONSISTENT VERSIONS LIBERATO

Citation: Bargero v R [2023] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 2 August 2023
Judges: Kirk JA; Rothman J; N Adams J

Background

The applicant was convicted following a judge-alone trial in the District Court of two offences: aggravated sexual intercourse without consent with a person under 16, and intentional sexual touching of a child aged between 10 and 16. The offences were alleged to have occurred on the night of 6 June 2020 at a residential premises where both the applicant and the complainant (a 15-year-old referred to by the pseudonym "GC") were staying. Both had consumed alcohol that evening, and the complainant had fallen asleep before the applicant carried her upstairs to bed.

The complainant gave evidence that she awoke to find the applicant removing her clothing and performing oral sex upon her. She made an immediate complaint to others present at the premises. The applicant did not give sworn evidence at trial, but participated in two electronically recorded interviews (ERISPs) with police, and made further statements in text messages and a recorded telephone conversation.

Rather than flatly denying the conduct, the applicant's account in the ERISPs was that he had placed his face near the complainant's genitalia in a drunken state to smell that area for sexual gratification. The trial judge found this fell short of an outright denial of the offending, accepted the complainant as a credible and compelling witness, and convicted the applicant. The applicant then sought leave to appeal his conviction.

  • Whether the trial judge erred in characterising the applicant's version of events as falling short of a denial, and in failing to treat various out-of-court statements as categorical denials requiring explicit rejection.
  • Whether the trial judge failed to give adequate reasons under s 133 of the Criminal Procedure Act 1986 (NSW), including whether the Liberato direction (the requirement that an accused's denial, if believed or raising reasonable doubt, must result in acquittal) was properly given and applied.
  • Whether the verdicts were unreasonable.

Decision

The Court of Criminal Appeal, with Rothman J delivering the principal judgment and Kirk JA and N Adams J agreeing, dismissed the appeal on all grounds.

On Ground 1, the Court found no error in the trial judge's characterisation of the applicant's out-of-court statements. The ERISPs revealed that the applicant said he did not "think" he had performed the acts, rather than asserting he had not done so. The Court noted that the applicant's position appeared to be one of uncertainty about his own conduct due to intoxication, not a positive denial. The text messages and denial made at the scene (when the applicant was assessed as highly intoxicated) did not alter this conclusion; the trial judge was not required to address each piece of evidence expressly given the overall analysis and findings he had made.

On Ground 2, the Court found the Liberato direction was properly given and applied in the circumstances. Because the trial judge found that the applicant had not in fact denied committing the offending, the full Liberato direction (which is engaged when there is a direct conflict between an accused's denial and the complainant's account) was not required in its extended form. The Court also noted that the applicant's account had evolved over time, with later outright denials emerging only after he was charged and was defending the matter in court.

Ground 3, concerning the reasonableness of the verdicts, was not separately considered because Grounds 1 and 2 had both failed. The applicant had conceded at the outset that Ground 3 could not independently succeed if those grounds did not.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A Liberato direction is engaged by a direct conflict between a denial and a complainant's positive account. Where a trial judge finds the accused's version amounts only to uncertainty about whether the acts occurred (rather than a clear denial), a shortened form of the direction may be appropriate.
  • No error was established in the trial judge's characterisation of the applicant's ERISP statements as expressions of uncertainty rather than denials, where the statements themselves indicated the applicant did not "think" he had committed the acts.
  • In a judge-alone trial under s 133 of the Criminal Procedure Act 1986 (NSW), a judge is not required to expressly address every individual piece of evidence in the reasons for verdict, provided the overall reasoning sufficiently accounts for the evidence considered.
  • The Court of Criminal Appeal confirmed that denials made in conditions of extreme intoxication, or made after charges were laid as part of a developing defence, can be given reduced weight without separate and explicit reasons for each.
  • Upholding the conviction, the court treated the applicant's evolving account as significant context, noting the trial judge's observation that the applicant had moved from saying he did not think he committed the acts to a later outright denial.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 133
- Crimes Act 1900 (NSW), ss 61J(1), 66DB(a)

Cases
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 65
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
- Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48