Legal Research
Cases
R v Beergah

R v Beergah

Case [2023] NSWDC 464 6 October 2023

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Beergah [2023] NSWDC 464
Hearing dates: 26 September 2023, 6 October 2023
Date of orders: 6 October 2023
Decision date: 06 October 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 92-93

Catchwords:
CRIME – appeals and reviews – sexual touching offence – whether inconsistencies between complainant’s evidence and other prosecution witnesses indicated the complainant’s evidence was unreliable – whether lying by one corroborating witness should have given rise to doubt whether the complainant and other corroborating witnesses had a motive to lie - whether fresh evidence (on appeal) of appellant’s good character indicative of reasonable doubt in circumstances where appellant participated in an ERISP but elected not to give evidence in the Local Court hearing – whether Liberato direction misapplied

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), s18
Crimes Act 1900 (NSW), ss 61HB, 66DB

Cases Cited:
Arizabaleta v R [2023] NSWCCA 217
Blissett v Director of Public Prosecutions (NSW)
[2021] NSWCA 253
Browne v Dunn (1893) 6 R 67
Haile v R [2022] NSWCCA 71
Hofer v The Queen (2021) 274 CLR 357
Liberato v The Queen (1985) 159 CLR 507
Lunneyv DPP (2021) 105 NSWLR 236
McNab v DPP (NSW) (2021) 106 NSWLR 430
Park v R [2023] NSWCA 71
R v Scott [2023] NSWDC 271
Weissensteiner v The Queen (1993) 178 CLR 217

Category: Principal judgment
Parties: Office of the Director of Public Prosecutions (ODPP)
Brian Beergah (appellant)
Representation:
Ms A. Chauvet (solicitor) for the ODPP
Ms G. Ghabrial (counsel) for the appellant
Solicitors:
ODPP
KPT Defence Lawyers

File Number(s): 2020/00113807
Publication restriction: Non Publication order in relation to the complainant’s name and certain other matters identifying her.
Decision under appeal

Court or tribunal:

Fairfield Local Court

Jurisdiction:

Criminal

Date of Decision:

13 October 2022

Before:

Magistrate Gibson

File Number(s):

2020/00113807

REASONS FOR JUDGMENT

Nearly a year ago to the present day, on 13 October 2022, and after a hearing that ran for four days, Mr Brian Beergah (the ‘appellant’) was convicted in the Fairfield Local Court (Magistrate Gibson) of the offence of sexual touching of a child between the ages of 10 and 16 years of age, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The offence was alleged to have occurred in the period from 22 July 2019 to 27 December 2019. The touching was alleged to have occurred against the complainant, a 12 year old student in Year 7, in a classroom at [redacted] Public School.
The appellant appeals that conviction.

Application to rely upon fresh evidence

As a preliminary matter, at the beginning of the hearing of the appeal, the appellant was granted leave, pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW), for fresh evidence to be given in this appeal. The fresh evidence was, in substance, that the appellant is a person of good character in a particular respect, being a person who has never been convicted or…

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 R v Beergah

Details

AGLC: R v Beergah [2023] NSWDC 464
Case: [2023] NSWDC 464
Decision Date: 06 October 2023

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Beergah, against a conviction for sexual touching, an offence under section 340(1) of the Crimes Act 1900. The conviction arose from a trial in the Local Court of New South Wales, where Beergah was found guilty based on the testimony of the complainant and other corroborating witnesses. The appeal was heard in the Supreme Court of New South Wales, with Justice Hulme presiding.

The appeal raised several legal issues, including whether the inconsistencies between the complainant's evidence and other prosecution witnesses indicated that the complainant's evidence was unreliable. It was also argued that the fact that one corroborating witness had lied should have given rise to doubt as to whether the complainant and other corroborating witnesses had a motive to lie. Another issue was whether the fresh evidence of Beergah's good character, which was presented on appeal, was indicative of reasonable doubt in circumstances where Beergah had participated in an Extended Remand on Sentence Program but elected not to give evidence in the Local Court hearing. Lastly, it was argued that the trial judge had misapplied the Liberato direction.

Justice Hulme found that the appeal should be allowed, and the conviction quashed. The court held that there were inconsistencies in the evidence which went to the heart of the case, and that the fresh evidence of Beergah's good character was relevant and indicative of reasonable doubt. The court also found that the trial judge had misapplied the Liberato direction. The appeal was allowed, and the conviction was quashed.

In light of the findings, the court ordered that Beergah be acquitted of the offence and that a spent conviction be recorded.

Orders

Orders of the court

See paragraphs 92-93

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Beergah [2023] NSWDC 464

Cases Citing This Decision

No citing cases yet.

Cases Cited

Arizabaleta v R [2023] NSWCCA 217
Citation 1 (Para 87)

…t the complainant’s recollections became distorted so what was only a possibility of rubbing became a probability of rubbing (per Arizabaleta v R [2023] NSWCCA 217 per Leeming JA at [102]-[108]). There were certain strands to this argument. First, there was evidence from AH that there was only a touch; not a rub. Th…
R v Scott [2023] NSWDC 271
Citation 2 (Para 5)

…In R v Scott [2023] NSWDC 271 at [5], I recently stated what I took to be the applicable principles guiding this Court when determining conviction appeals. These were:…
Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71
Citation 3

…74 CLR 357 Liberato v The Queen (1985) 159 CLR 507 Lunney v DPP (2021) 105 NSWLR 236 McNab v DPP (NSW ) (2021) 106 NSWLR 430 Park v R [2023] NSWCA 71 R v Scott [2023] NSWDC 271 Weissensteiner v The Queen (1993) 178 CLR 217 Category: Principal judgment Parties: Office of the Director of Public Prosecutions (ODPP) B…
Park v The King [2023] NSWCCA 71
Citation 4 (Para 49)

…rection (‘if you believe the defendant you must acquit and if you think his account might be true, you must acquit’: see now Park v R [2023] NSWCCA 71 at [103]). There is no proper basis for the submission that he simply engaged in a choice between binary alternatives. Having rejected the appellant’s evidence and h…
Haile v R [2022] NSWCCA 71
Citation 5 (Para 49)

…touching the complainant accidentally or not in a ‘sexual’ way). Arguably there was no real ‘conflicting version of events ’ ( Haile v R [2022] NSWCCA 71 per Bell CJ at [2]). Be that as it may, the Magistrate expressly directed himself in accordance with the first two of the conventional limbs of this direction (‘…
McNab v Director of Public Prosecutions [2021] NSWCA 298
Citation 6

…71 Hofer v The Queen (2021) 274 CLR 357 Liberato v The Queen (1985) 159 CLR 507 Lunney v DPP (2021) 105 NSWLR 236 McNab v DPP (NSW ) (2021) 106 NSWLR 430 Park v R [2023] NSWCA 71 R v Scott [2023] NSWDC 271 Weissensteiner v The Queen (1993) 178 CLR 217 Category: Principal judgment Parties: Office of the Director of Pub…
Hofer v The Queen [2021] HCA 36
Citation 7 (Para 65)

…point would have been fairer to those witnesses and thereby more persuasive. For the reasons explained by the High Court in Hofer v The Queen (2021) 274 CLR 357, great care would have had to be taken before any inference adverse to the appellant could be drawn from his Counsel’s omission to put to the witnesses that…
Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253
Citation 8

…Crimes Act 1900 (NSW), ss 61HB, 66DB Cases Cited: Arizabaleta v R [2023] NSWCCA 217 Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 Browne v Dunn (1893) 6 R 67 Haile v R [2022] NSWCCA 71 Hofer v The Queen (2021) 274 CLR 357 Liberato v The Queen (1985) 159 CLR 507 Lunney v DPP (2021) 105 NSWLR 236…
Lunney v DPP [2021] NSWCA 186
Citation 9

…nn (1893) 6 R 67 Haile v R [2022] NSWCCA 71 Hofer v The Queen (2021) 274 CLR 357 Liberato v The Queen (1985) 159 CLR 507 Lunney v DPP (2021) 105 NSWLR 236 McNab v DPP (NSW ) (2021) 106 NSWLR 430 Park v R [2023] NSWCA 71 R v Scott [2023] NSWDC 271 Weissensteiner v The Queen (1993) 178 CLR 217 Category: Principal judgmen…
Weissensteiner v The Queen [1993] HCA 65
Citation 10 (Para 8)

…he appellant was entitled to say nothing at all and had nothing to prove at all. But, to take the point from Weissensteiner v The Queen (1993) 178 CLR 217, if as ultimately occurred, the Magistrate found that touching did occur as alleged by the complainant, then when his Honour went on to consider the other elements…
Liberato v The Queen [1985] HCA 66
Citation 11

…SW) [2021] NSWCA 253 Browne v Dunn (1893) 6 R 67 Haile v R [2022] NSWCCA 71 Hofer v The Queen (2021) 274 CLR 357 Liberato v The Queen (1985) 159 CLR 507 Lunney v DPP (2021) 105 NSWLR 236 McNab v DPP (NSW ) (2021) 106 NSWLR 430 Park v R [2023] NSWCA 71 R v Scott [2023] NSWDC 271 Weissensteiner v The Queen (1993) 178 C…
Browne v Dunn 113 ER 1206
Citation 12

…(NSW), ss 61HB, 66DB Cases Cited: Arizabaleta v R [2023] NSWCCA 217 Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 Browne v Dunn (1893) 6 R 67 Haile v R [2022] NSWCCA 71 Hofer v The Queen (2021) 274 CLR 357 Liberato v The Queen (1985) 159 CLR 507 Lunney v DPP (2021) 105 NSWLR 236 McNab v DPP (NSW ) (…

Legislation Cited

Crimes Act 1900 (ACT) 61HB, 66DB
3 mentions (from Para 1)
Crimes (Appeal and Review) Act 2001 (NSW) 18
2 mentions (from Para 3)

Medium Neutral Citation:	R v Beergah [2023] NSWDC 464
Hearing dates:	26 September 2023, 6 October 2023
Date of orders:	6 October 2023
Decision date:	06 October 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 92-93
Catchwords:	CRIME – appeals and reviews – sexual touching offence – whether inconsistencies between complainant’s evidence and other prosecution witnesses indicated the complainant’s evidence was unreliable – whether lying by one corroborating witness should have given rise to doubt whether the complainant and other corroborating witnesses had a motive to lie - whether fresh evidence (on appeal) of appellant’s good character indicative of reasonable doubt in circumstances where appellant participated in an ERISP but elected not to give evidence in the Local Court hearing – whether Liberato direction misapplied
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s18 Crimes Act 1900 (NSW), ss 61HB, 66DB
Cases Cited:	Arizabaleta v R [2023] NSWCCA 217 Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 Browne v Dunn (1893) 6 R 67 Haile v R [2022] NSWCCA 71 Hofer v The Queen (2021) 274 CLR 357 Liberato v The Queen (1985) 159 CLR 507 Lunneyv DPP (2021) 105 NSWLR 236 McNab v DPP (NSW) (2021) 106 NSWLR 430 Park v R [2023] NSWCA 71 R v Scott [2023] NSWDC 271 Weissensteiner v The Queen (1993) 178 CLR 217
Category:	Principal judgment
Parties:	Office of the Director of Public Prosecutions (ODPP) Brian Beergah (appellant)
Representation:	Ms A. Chauvet (solicitor) for the ODPP Ms G. Ghabrial (counsel) for the appellant Solicitors: ODPP KPT Defence Lawyers
File Number(s):	2020/00113807
Publication restriction:	Non Publication order in relation to the complainant’s name and certain other matters identifying her.
Decision under appeal	Court or tribunal: Fairfield Local Court Jurisdiction: Criminal Date of Decision: 13 October 2022 Before: Magistrate Gibson File Number(s): 2020/00113807