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Court of Criminal Appeal 20 March 2026

Ellingford v R

[2026] NSWCCA 24

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION LIBERATO DIRECTION APPEALS APPEAL AGAINST CONVICTION

Citation: Ellingford v R [2026] NSWCCA 24
Court: Court of Criminal Appeal (NSW)
Date: 20 March 2026
Judge(s): N Adams CJ at CL at [1]; Price AJA at [8]; McGuire J at [143]

Background

The applicant was found guilty following a jury trial in the District Court of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). He was sentenced to seven years' imprisonment with a non-parole period of four years and six months.

The offending was alleged to have occurred during a work Christmas party held in an apartment on the night of 25–26 December 2021. The applicant and the complainant were colleagues. The Crown's case was that the complainant was substantially intoxicated and had either passed out or was asleep, rendering her incapable of consenting to sexual intercourse. The applicant's case was that the complainant was conscious and awake, that she had initiated the sexual intimacy, and that she was a fully consenting participant. Penile vaginal intercourse was not in dispute; the contested issues at trial were whether the complainant consented and whether the applicant knew she did not.

During the summing up, the trial judge raised with the parties whether some form of a Liberato direction should be given. The applicant's trial counsel sought such a direction. The trial judge ultimately delivered a modified Liberato direction rather than the standard unqualified formulation found in the Judicial Commission's Criminal Trial Courts Bench Book and set out by the High Court majority in De Silva v The Queen (2019) 268 CLR 57. Neither party objected nor sought a redirection. The trial judge also did not give the standard direction on the drawing of inferences from circumstantial evidence. The applicant appealed against both conviction and sentence.

  • Ground 1: Whether a miscarriage of justice was occasioned by the trial judge giving a modified (rather than the standard unqualified) Liberato direction.
  • Ground 2: Whether a miscarriage of justice was occasioned by the trial judge's failure to give the standard direction on the drawing of inferences from circumstantial evidence.
  • Ground 3: Whether the sentence of seven years' imprisonment (with a four-year-six-month non-parole period) was manifestly excessive.

Decision

Ground 1: The Modified Liberato Direction

The Court (Price AJA delivering the principal reasons, with N Adams CJ at CL agreeing and providing additional observations, and McGuire J agreeing) refused leave to appeal on this ground. The Court accepted that a Liberato direction plays an important role in "word against word" trials by reinforcing that a jury must not treat a mere preference for the prosecution evidence as sufficient to convict. However, the Court emphasised that rigid adherence to the formulation in De Silva at [12] or the Bench Book is not required. A Liberato direction may properly be fashioned to the particular evidence critical to the jury's assessment of the offence.

Here, the case had an unusual feature: the applicant's own account included aspects that the Crown actually relied upon, and the applicant's evidence of intoxication created a real risk that an unqualified Liberato direction would confuse the jury. It would have been erroneous, the Court found, to direct the jury that they must acquit if they believed the applicant's evidence—or considered it might be true—about what happened in the bedroom prior to the sexual intercourse, because parts of that very account supported the Crown case. The trial judge's modified direction was appropriate in light of this evidence, was "abundantly fair" to the applicant, and was sufficient to protect against a miscarriage of justice.

The Court also noted that the applicant's trial counsel neither objected to the modified direction nor sought a redirection. While not determinative, this absence of objection supported the conclusion that the direction was fair and caused no material prejudice.

Ground 2: Failure to Give an Inferences Direction

The Court also refused leave on this ground. Price AJA observed that there is no rule of law requiring a circumstantial evidence direction in every case. The Crown case here depended primarily on direct evidence and the jury's assessment of credibility, particularly as to the complainant's state of consciousness and capacity to consent. While there was no direct evidence as to the applicant's state of mind (knowledge of non-consent), the Court held that the trial judge's summing up, considered as a whole, did not deflect the jury from its fundamental task of determining whether the Crown had proved all essential elements beyond reasonable doubt. The Court stressed that the effect of the summing up matters, not whether the judge used a particular formula of words, and that there was no obligation to follow the Bench Book's wording. Again, the fact that trial counsel did not seek any further direction on inferences supported this conclusion.

Ground 3: Manifest Excess

The Court granted an extension of time and leave to appeal against sentence but dismissed the appeal. The applicant's own counsel accepted that the sentencing statistics and comparable cases fell short of establishing that the sentence was manifestly excessive. The Court found that the trial judge had given careful consideration to the sentence, that the offending was serious, and that the applicant had not established the sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against conviction on Grounds 1 and 2: refused.
  • Extension of time and leave to appeal against sentence on Ground 3: granted.
  • Appeal against sentence: dismissed.

Key Takeaways

  • A Liberato direction need not mechanically follow the Bench Book or De Silva formulation. The Court of Criminal Appeal held that trial judges retain the discretion, and may have an obligation, to modify the direction to suit the particular evidence, especially where an unqualified direction could mislead or confuse the jury.

  • Where an accused's own account contains elements that support the prosecution case, a standard Liberato direction may be positively erroneous. The Court found that because the applicant's evidence of intoxication and events in the bedroom partly bolstered the Crown case, the standard formulation had to be assessed against the actual facts rather than applied by rote.

  • Failure to object at trial is significant on appeal. Although not conclusive, the absence of any objection or request for redirection by experienced trial counsel weighed against an appellate finding of miscarriage of justice, reinforcing that contemporaneous silence by counsel is a relevant consideration when reviewing the adequacy of jury directions.

  • No requirement exists for a circumstantial evidence direction in every case. The Court of Criminal Appeal held that where the Crown case rests primarily on direct evidence and credibility assessments, the omission of a standard inferences direction does not necessarily constitute a miscarriage of justice, provided the summing up as a whole adequately conveys the onus and standard of proof.

  • In dismissing the manifest excess ground, the Court confirmed that sentencing statistics and comparable cases did not clearly demonstrate the sentence fell outside the available range. An appellate court is unlikely to intervene where the sentencing judge gave careful and considered reasons and the resulting sentence is not unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HE (repealed), 61I
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5, 4.15

Key Cases:
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
- Barwick v R [2023] NSWCCA 139
- Krivosic v R [2024] NSWCCA 166
- Al-Sheikh v R [2025] NSWCCA 205
- Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22
- Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
- Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56
- La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52
- *Mul