While awaiting trial on sex charges, Kenneth Bell was savagely beaten in jail and suffered severe brain damage.
By 2016 Mr Bell was well enough to face a judge-alone trial in the NSW District Court, and was found guilty of raping a woman while giving her a nude massage the morning after a party at her house.
But the NSW Court of Criminal Appeal acquitted Mr Bell, finding there was “real doubt” he had committed the crimes, and that doubt should have been shared by trial judge Siobhan Herbert.
“The trial judge’s reasons do not dispel that doubt but rather fortify it,” the appeal judgment said.
The court pointed to the alleged victim’s inconsistent statements, “significant anomalies” in the evidence, and a “sense of unease” about the course of the trial.
The appeals panel, which included Chief Justice Tom Bathurst, described some of Judge Herbert’s exchanges with Mr Bell’s barrister as troubling, amounting to a “substantial miscarriage of justice”.
Judge Herbert was sworn in last year.
Mr Bell was accused of digitally penetrating a 28-year-old woman despite her refusals and touching her inappropriately during the massage one morning in April 2013.
The woman’s ex-husband called police after she sent him some concerning text messages about Mr Bell, and officers arrived at the house in the evening.
She did not tell police Mr Bell was still in her home and, when they later found out, she said he was there to fix her television antenna late at night.
Her neighbour told court the woman said she was confused about whether Mr Bell should be facing charges.
“I’m not sure if anything happened,” the woman was said to have told her neighbour.
There was also evidence the woman had a “motive to lie” about the alleged rape to protect herself from her controlling ex-husband.
The appeals court found Judge Herbert made an error in finding some of Mr Bell’s recorded phone calls from prison were admissions.
Instead Mr Bell was clearly describing the details of the woman’s allegations in the calls to relatives, the court said.
The appeals court also found Judge Herbert had interrupted the defence barrister, disallowed some questions, and narrowed a course of questioning so it was unfair to Mr Bell.
“Our assessment of the evidence in the present case has left each member of the court in doubt as to the applicant’s guilt.
“With great respect to the trial judge … we have concluded that there were so many significant inconsistencies and anomalies in the evidence as to point unequivocally to the conclusion that the verdict was unreasonable, or cannot be supported, having regard to the evidence.”
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