Bargero v R [2023] NSWCCA 192

Bargero v R [2023] NSWCCA 192

The appeal failed because the trial judge gave and applied an adequate Liberato direction, analysed the complainant's evidence and the applicant's considered out-of-court statements, and was entitled to conclude that the applicant's account was not a meaningful denial but left open that he may have committed the acts and not remembered them because of intoxication. The text messages, recorded telephone conversation and drunken denial at the scene did not amount to unequivocal denials requiring separate rejection. On the whole of the evidence, the Court had no reasonable doubt as to the applicant's guilt, and Ground 3 did not arise once Grounds 1 and 2 were rejected.

Jurisdiction
Australia
Judgment Date
02 August 2023
Procedural Posture
Criminal Conviction Appeal / Application for Leave to Appeal and Appeal From Convictions After Judge Alone Trial in the District Court
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['conviction Appeal' 'judge Alone Trial' 'liberato Direction' 'unreasonable Verdict' 'sexual Offences Against Child' 'intoxication and Memory' 'out of Court Statements']
['criminal Law' 'criminal Procedure' 'evidence'] ['conviction Appeal' 'judge Alone Trial' 'liberato Direction' 'unreasonable Verdict' 'sexual Offences Against Child' 'intoxication and Memory' 'out of Court Statements']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Application for Leave to Appeal and Appeal From Convictions After Judge Alone Trial in the District Court

Legal Issues

  1. 1 ["Whether the trial miscarried because of the trial judge's findings about the applicant's version of events and its impact on proof of the prosecution case." "Whether the trial judge failed to comply with s 133 of the Criminal Procedure Act 1986 (NSW) by giving inadequate reasons concerning the applicant's version, including the Liberato direction and directions about out-of-court statements." 'Whether the verdicts were unreasonable.']

Ratio Decidendi

The appeal failed because the trial judge gave and applied an adequate Liberato direction, analysed the complainant's evidence and the applicant's considered out-of-court statements, and was entitled to conclude that the applicant's account was not a meaningful denial but left open that he may have committed the acts and not remembered them because of intoxication. The text messages, recorded telephone conversation and drunken denial at the scene did not amount to unequivocal denials requiring separate rejection. On the whole of the evidence, the Court had no reasonable doubt as to the applicant's guilt, and Ground 3 did not arise once Grounds 1 and 2 were rejected.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal be granted.' 'Appeal be dismissed.']