Barwick v R [2023] NSWCCA 139

Barwick v R [2023] NSWCCA 139

The appeal was upheld on grounds 1, 3 and 4 because the trial judge's reasons did not demonstrate, expressly or by implication, that she took into account the appellant's credibility when making findings of fact and findings of guilt, or that she applied the second limb of the good character direction and the second limb of the Liberato direction by considering whether the appellant's denials might reasonably be true notwithstanding the accepted complainant evidence and powerful character evidence. Those failures amounted to wrong decisions on questions of law and a miscarriage of justice. Ground 5 was dismissed because, although the appellate court experienced a reasonable doubt on the...

Jurisdiction
Australia
Judgment Date
16 June 2023
Procedural Posture
Criminal Appeal Against Conviction for Child Sexual Offences After Judge Alone Trial / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Appeal upheld on grounds 1, 3 and 4; leave to appeal granted on ground 5 but appeal on that ground dismissed; convictions quashed and new trial ordered.
Legal Topics
['appeal Against Conviction' 'child Sexual Offences' 'judge Alone Trial Reasons' 'liberato Direction' 'good Character Direction' 'unreasonable Verdict' 'miscarriage of Justice' 'retrial']
['criminal Law' 'criminal Procedure' 'evidence' 'appeals'] ['appeal Against Conviction' 'child Sexual Offences' 'judge Alone Trial Reasons' 'liberato Direction' 'good Character Direction' 'unreasonable Verdict' 'miscarriage of Justice' 'retrial']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction for Child Sexual Offences After Judge Alone Trial / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the trial judge failed to apply the second limb of the Liberato direction.' "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.' "Whether, after finding the complainant credible and reliable, the trial judge failed to consider whether she nevertheless had a reasonable doubt about the appellant's guilt." 'Whether the verdicts of guilty on counts 1, 3 and 5 were unreasonable.']

Ratio Decidendi

The appeal was upheld on grounds 1, 3 and 4 because the trial judge's reasons did not demonstrate, expressly or by implication, that she took into account the appellant's credibility when making findings of fact and findings of guilt, or that she applied the second limb of the good character direction and the second limb of the Liberato direction by considering whether the appellant's denials might reasonably be true notwithstanding the accepted complainant evidence and powerful character evidence. Those failures amounted to wrong decisions on questions of law and a miscarriage of justice. Ground 5 was dismissed because, although the appellate court experienced a reasonable doubt on the...

Court Disposition

Appeal upheld on grounds 1, 3 and 4; leave to appeal granted on ground 5 but appeal on that ground dismissed; convictions quashed and new trial ordered.

Orders

  • ['The appellant has leave to appeal on ground 5 but the appeal on this ground is dismissed.' 'The appeal is upheld on grounds 1, 3 and 4.' "The appellant's convictions on counts 1, 3 and 5 are quashed." 'There is to be a new trial on all counts.' 'The proceedings are to be listed in the arraignment list in the...