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Barwick v The King

Barwick v The King

Case [2023] NSWCCA 139 16 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Barwick v R [2023] NSWCCA 139
Hearing dates: 24 April 2023
Date of orders: 16 June 2023
Decision date: 16 June 2023
Before: Wright J at [1]
Yehia J at [125]
Chen J at [126]
Decision:
(1)   The appellant has leave to appeal on ground 5 but the appeal on this ground is dismissed.
(2)   The appeal is upheld on grounds 1, 3 and 4.
(3)   The appellant’s convictions on counts 1, 3 and 5 are quashed.
(4)   There is to be a new trial on all counts.
(5)   The proceedings are to be listed in the arraignment list in the District Court at Sydney on 23 June 2023.

Catchwords:
CRIME – appeals – appeal against conviction –child sexual offences – judge alone trial – requirements in relation to reasons of the trial judge – Liberato direction – good character direction – whether error in failing to apply all aspects of directions – whether failure to explain how the second limb of each of the Liberato direction and the good character direction were taken into account in reaching the conclusion that the appellant was guilty on each relevant count – whether verdicts of guilty unreasonable – convictions set aside – new trial ordered

Legislation Cited:
Crimes Act 1900 (NSW), ss 66A(1), 66A(2), 66M(2)
Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1)
Criminal Procedure Act 1986 (NSW), ss 132, 133(1),

Cases Cited:
Constantinidis v The Queen; Lazar v The Queen [2022] NSWCCA 4
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Douglass v The Queen [2012] HCA 34, (2012) 86 ALJR 1086
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
GS v The Queen [2022] NSWCCA 225
Haile v The Queen (2022) 109 NSWLR 288; [2022] NSWCCA 71
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
JV v R [2017] NSWCCA 49
Kanbut v R [2022] NSWCCA 259
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Orreal v The Queen [2021] HCA 44; 96 ALJR 78
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Anderson [2001] NSWCCA 488; 127 A Crim R 116
R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep)
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25
Slattery v R [2023] NSWCCA 117
Wade v R [2018] NSWCCA 85
Weiss v The Queen (2005) 224 CLR 300; 285 HCA 81

Texts Cited:
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2023, Judicial Commission of New South Wales)

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 Barwick v The King

Details

AGLC: Barwick v The King [2023] NSWCCA 139
Case: [2023] NSWCCA 139
Decision Date: 16 June 2023

CaseChat Overview and Summary

The case of Barwick v The King involved the appellant, Barwick, who was convicted by a judge alone of several child sexual offences. The appeal against the conviction was heard in the High Court of Australia. The central legal issues revolved around the adequacy of the trial judge's reasons for conviction, particularly in relation to the Liberato direction and the good character direction. The court had to determine whether the trial judge erred in failing to apply all aspects of these directions and whether the failure to explain how the second limb of each direction was considered in reaching the conclusion amounted to a miscarriage of justice.

The High Court found that the trial judge did not sufficiently address all aspects of the Liberato direction and the good character direction in his reasons for judgment. The court held that the judge did not properly explain how the second limb of each direction was taken into account in concluding that Barwick was guilty on each relevant count. This omission was considered a significant error as it failed to provide a complete and satisfactory explanation of the basis for the convictions. The court concluded that the failure to properly apply and explain the relevant directions led to a miscarriage of justice, making the verdicts of guilty unreasonable. Consequently, the convictions were set aside, and a new trial was ordered.

The High Court's decision emphasised the importance of trial judges meticulously adhering to and explaining the application of relevant legal directions when convicting a defendant in a serious criminal case. The failure to do so, as demonstrated in this case, can result in the setting aside of convictions and the ordering of a new trial. This outcome underscores the necessity for trial judges to provide comprehensive and clear reasons for their judgments, particularly in cases involving complex legal directions. The court's ruling in Barwick v The King serves as a reminder of the critical role that proper judicial reasoning plays in ensuring the fairness and integrity of the criminal justice process.

Orders