Frew v R

Case [2022] NSWCCA 165


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Frew v R [2022] NSWCCA 165
Hearing dates: 13 April 2022
Date of orders: 13 April 2022
Decision date: 05 August 2022
Before: 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

Legislation Cited:

Crimes Act 1900 (NSW), s 61I

Cases Cited:

Atai v R [2014] NSWCCA 210

Bell v R [2017] NSWCCA 207

De Silvav The Queen (2019) 268 CLR 57; [2019] HCA 48

Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Ford v R [2020] NSWCCA 99

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galea v Galea (1990) 19 NSWLR 263

Gittany v The Queen [2016] NSWCCA 182

Hodgson v R [2022] NSWCCA 22

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Maughan v R [2020] NSWCCA 51

Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Proutenv Chapman [2021] NSWCA 207

R v Holden [2014] NSWCCA 230

Rao v R [2019] NSWCCA 290

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Smith v R [2019] NSWCCA 162

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:Principal judgment
Parties: Alexander Frew (Applicant)
The Crown (Respondent)
Representation:

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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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