Frew v R [2022] NSWCCA 165

Frew v R [2022] NSWCCA 165

Having independently reviewed the whole of the evidence, the Court held that the applicant's account could not be set aside as not a reasonably possible version of events. There was at least a reasonable possibility that the complainant consented, or that the applicant believed she did, so the Crown had not proved beyond reasonable doubt the absence of consent and the applicant's knowledge of that absence. The trial judge rejected the applicant's evidence on plausibility rather than demeanour, so the trial judge had no relevant advantage over the appellate court capable of resolving the reasonable doubt. The conviction was therefore unreasonable.

Jurisdiction
Australia
Judgment Date
05 August 2022
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Judge Alone Conviction Determined by the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; conviction and sentence quashed; verdict of acquittal substituted; applicant released from custody forthwith.
Legal Topics
['sexual Intercourse Without Consent' 'consent' 'knowledge of Non Consent' 'unreasonable Verdict' 'judge Alone Trial' 'liberato Direction' 'appellate Review of Factual Findings']
['criminal Law' 'criminal Procedure' 'evidence'] ['sexual Intercourse Without Consent' 'consent' 'knowledge of Non Consent' 'unreasonable Verdict' 'judge Alone Trial' 'liberato Direction' 'appellate Review of Factual Findings']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal From District Court Judge Alone Conviction Determined by the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the verdict was unreasonable having regard to the evidence.' 'Whether, on the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the complainant did not consent and that the applicant knew she did not consent.' "Whether any reasonable doubt entertained by the appellate court could be resolved by the trial judge's advantage in seeing and hearing the evidence."]

Ratio Decidendi

Having independently reviewed the whole of the evidence, the Court held that the applicant's account could not be set aside as not a reasonably possible version of events. There was at least a reasonable possibility that the complainant consented, or that the applicant believed she did, so the Crown had not proved beyond reasonable doubt the absence of consent and the applicant's knowledge of that absence. The trial judge rejected the applicant's evidence on plausibility rather than demeanour, so the trial judge had no relevant advantage over the appellate court capable of resolving the reasonable doubt. The conviction was therefore unreasonable.

Court Disposition

Leave to appeal granted; appeal allowed; conviction and sentence quashed; verdict of acquittal substituted; applicant released from custody forthwith.

Orders

  • ['Leave to appeal be granted.' 'The appeal be allowed.' 'The conviction of the applicant in the District Court on 3 March 2021 and consequent sentence imposed on 2 July 2021 be quashed.' 'There be substituted a verdict of acquittal.' 'The applicant be released from custody forthwith.']