Brereton JA at [1]; Garling J at [66]; Hamill J at [77].
Decision:
1. Leave to appeal be granted;
2. The appeal be allowed;
3. The conviction of the applicant in the District Court on 3 March 2021 and consequent sentence imposed on 2 July 2021 be quashed;
4. There be substituted a verdict of acquittal; and
5. The applicant be released from custody forthwith.
Catchwords:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where direct evidence only available from conflicting accounts of complainant and accused – Where trial judge gave self Liberato direction and then rejected accused’s evidence – Finding that having regard to the whole of the evidence, accused’s account cannot be set aside as not a reasonably possible version of events, and thus a reasonable doubt as to his guilt is entertained – Held that trial judge enjoyed no relevant advantage over appellate court and thus ought to have entertained the same reasonable doubt – Conviction and sentence quashed and substituted with verdict of acquittal
Counsel: Mr T Game SC with Ms A Cook (Applicant) Mr G Newton (Crown)
Solicitors: Armstrong Legal (Applicant) Office of Director of Public Prosecutions (Crown)
File Number(s):
2019/288700
Publication restriction:
Publication of any matter which identifies or which is likely to lead to the identification of the…
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 Frew v R
Sign in free to access the full text
Details
AGLC
Frew v R [2022] NSWCCA 165
Case
[2022] NSWCCA 165
Decision Date
CaseChat Overview and Summary
In the case of Frew v R, the appellant, Frew, appealed against his conviction for assault occasioning actual bodily harm. The dispute arose from conflicting accounts of the incident, with direct evidence only available from the complainant and the accused. The appeal was heard in the High Court of Australia. The central legal issue was whether the trial judge erred in law by rejecting the appellant’s version of events and concluding that a reasonable doubt as to his guilt did not exist.
The court examined the principles established in Liberato v R, which emphasise the importance of considering whether the jury could reasonably accept the accused’s evidence. The High Court noted that the trial judge had given a Liberato direction, but still concluded that the accused's account could not be a reasonably possible version of events. The court held that the trial judge had no relevant advantage over the appellate court and, therefore, should have entertained the same reasonable doubt. The court found that the trial judge's conclusion was unreasonable and that the verdict was unsafe and unsatisfactory.
Consequently, the High Court quashed the conviction and sentence, substituting it with a verdict of acquittal. This decision underscores the necessity for trial judges to carefully consider the totality of the evidence and the principles of reasonable doubt when evaluating conflicting testimonies.