Citation: IO v R [2025] NSWCCA 123
Court: Court of Criminal Appeal, New South Wales
Date: 13 August 2025
Judges: Ball JA (leading judgment); Fagan J and Sweeney J agreeing
Background
The applicant was convicted following a judge-alone trial in the District Court of 24 counts of historical sexual offending against four male children committed between 1979 and 1987. The complainants were four boys, referred to as DB, RB (DB's younger brother), JP, and MC (the applicant's biological son). The applicant was sentenced to an aggregate of 16 years' imprisonment with a non-parole period of nine years.
A central complication arose from the timing of the alleged offences. The Crown's original indictment placed a number of offences within periods that overlapped with a period when the applicant was in custody (June 1977 to November 1979). After the applicant served an alibi notice identifying his imprisonment, the Crown amended the indictment to confine the alleged offending to periods when the applicant was not in custody. This meant the amended dates differed from the timeframes referred to in the complainants' police statements and their trial evidence.
Despite these timing discrepancies, the trial judge (C Smith SC DCJ) was satisfied beyond reasonable doubt of the applicant's guilt on all 24 counts as particularised in the amended indictment. The applicant sought leave to appeal against conviction on two grounds.
Legal Issues
- Whether the verdicts were unreasonable or could not be supported having regard to the evidence, particularly given the inconsistencies between the complainants' evidence on timing and the amended indictment.
- Whether the trial judge erred in finding that time was not of the essence in respect of the counts involving DB, RB and JP.
- Whether the verdict concerning MC was unsafe given his initial denials of abuse and a potentially implausible account of a subsequent telephone confrontation with the applicant.
Decision
Timing discrepancies and the counts involving DB, RB and JP
The Court rejected the applicant's characterisation of the timing issue. The question was not whether the offences occurred when the applicant was in prison (they were not alleged to have occurred then), but whether the prosecution had proved beyond reasonable doubt that the offences occurred during the periods specified in the amended indictment. That required the trial judge to assess whether the complainants had simply made mistakes about timing and their own ages, rather than fabricating their accounts. Ball JA concluded that such a finding was open on the evidence.
The Court noted that the complainants' errors about specific details and surrounding circumstances were explicable by the significant passage of time since the alleged offending. Those errors did not undermine the truthfulness of the complainants' core accounts. The conclusion was reinforced by extensive tendency evidence of the applicant engaging in sexual acts with young boys, which the Court regarded as compelling support for the complainants' testimony.
The "time of the essence" ground
The applicant relied on R v Kennedy to argue that time had been made of the essence in relation to these counts. The Court distinguished that authority, noting the applicant had not challenged the Crown's amendment of the indictment at trial. The reliance on Kennedy was therefore misconceived in the circumstances.
The counts involving MC
The Court dismissed the suggestion that MC's initial denials and his account of a telephone confrontation with the applicant rendered the verdict unsafe. Delay and reluctance in reporting childhood sexual abuse are common features of this type of offending, and MC's explanation for his initial denials was found to be entirely plausible. Any possible mistake MC made about the circumstances of the telephone call could not generate a reasonable doubt about his evidence concerning the offences themselves.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Complainants in historical sexual offence cases may make genuine errors about the timing of offending without those errors necessarily undermining the truthfulness of their core accounts, particularly where significant time has passed.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that where a Crown amends an indictment to confine the alleged period of offending, the prosecution must prove the offences occurred within those amended periods. The central question then becomes whether any inconsistency in a complainant's evidence goes to credibility or merely reflects a mistake about timing.
- Where a defendant does not challenge an amendment to an indictment at trial, arguments on appeal that the amendment made time "of the essence" (in the sense that prior authorities used that phrase) may be misconceived.
- Delay in reporting childhood sexual abuse, including initial denials, is a well-recognised feature of this category of offending and does not, without more, provide a basis for doubting a complainant's evidence.
- Tendency evidence of a pattern of sexual conduct towards young boys can provide compelling corroborative support for individual complainants' accounts, and the Court here treated it as a significant factor in upholding the verdicts.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 294
- Evidence Act 1995 (NSW), ss 38, 97
- Crimes Act 1900 (NSW), ss 79, 81, 81A
Cases
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Pell v R (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Macri v R (2022) 110 NSWLR 1; [2022] NSWCCA 177
- LS v R [2024] NSWCCA 110
- R v Kennedy [2000] NSWCCA 487; (2000) A Crim R 34
- R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unreported)