Bargero v The King - [2023] NSWCCA 192

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bargero v R [2023] NSWCCA 192
Hearing dates: 03 July 2023
Decision date: 02 August 2023
Before: Kirk JA at [1];
Rothman J at [2];
N Adams J at [77]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – APPEALS – conviction appeal – Judge alone trial – inconsistent versions – Liberato – trial judge finding lack of direct inconsistency in considered statements of applicant – effect of intoxication – including of applicant to recall – no error in shortened Liberato direction – no reasonable doubt on analysis of evidence – no error

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 133

Cases Cited:
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34
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

Category: Principal judgment
Parties: Marc John Bargero (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Randle (Applicant)
M Kumar / L Christoff (Respondent)
Solicitors:
Conditsis Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/186818
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prevent the publication of any matter which is likely to lead to the identification of the complainant or any other underage witnesses.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 August 2022

Before:

Gartelmann SC DCJ

File Number(s):

2020/186818

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 10 March 2022 the applicant was convicted of aggravated sexual intercourse without consent with a person under the age of 16, as well as intentional sexual touching of a child over the age of 10 and under the age of 16 (“the offences”) following a judge alone trial in the District Court of New South Wales.

The evidence was that the offences took place on the evening of 6 June 2020 at a residential premises where the applicant and the complainant happened to be staying that night. The complainant and the applicant had both been consuming alcohol on the night in question, and the complainant fell asleep in the living room. The applicant carried the complainant upstairs to put her to bed.

The complainant’s evidence was that she awoke because she felt someone removing her pants and underwear, then kissing her stomach and performing oral sex upon her. She looked up and saw that it was the applicant performing these acts. The complainant pulled up her pants, ran downstairs, and made an immediate complaint about the applicant performing oral sex upon her.

While the applicant did not give evidence in the District Court, there were two electronically recorded interviews with police (“ERISPs”) which were admitted into…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bargero v The King

Details

AGLC: Bargero v The King [2023] NSWCCA 192
Case: [2023] NSWCCA 192
Decision Date: 02 August 2023

CaseChat Overview and Summary

In the case of Bargero v The King, the appellant, Bargero, sought to appeal against a conviction for certain criminal offences. The matter was heard and determined by the High Court of Australia. The dispute centred on the appellant's conviction, which was determined by a judge sitting alone, and the appellant's challenge to the consistency of the statements given during the trial. The appellant argued that the trial judge failed to correctly apply the principle of inconsistent versions as outlined in the case of Liberato v The Queen.

The primary legal issue before the court was whether the trial judge erred in his assessment of the consistency of the appellant's statements and the effect of intoxication on the appellant's ability to recall events. Specifically, the court was required to determine whether the trial judge's direction to the jury, which was a shortened version of the Liberato direction, was erroneous and whether such an error led to an unsafe and unsatisfactory conviction. The court also needed to assess whether there was any reasonable doubt about the appellant's guilt based on the evidence presented.

The court found that there was no error in the trial judge's application of the Liberato principle, as the judge had correctly determined that there was no direct inconsistency in the appellant's statements. The court held that the judge had properly considered the effect of intoxication on the appellant's ability to recall events and had not erred in his direction to the jury. The court further concluded that, after analysing all the evidence, there was no reasonable doubt about the appellant's guilt. Therefore, the appeal was dismissed, and the conviction was upheld. The court found no merit in the appellant's arguments and confirmed the original decision of the trial judge.

Orders