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Court of Criminal Appeal 18 August 2025

Radburn (a pseudonym) v R

[2025] NSWCCA 125

Sexual offences

Citation: Radburn (a pseudonym) v R [2025] NSWCCA 125
Court: Court of Criminal Appeal
Date: 18 August 2025
Judge(s): Leeming JA at [1]; Free JA at [138]; N Adams J at [139]

Background

The appellant (identified by pseudonym) was convicted following a jury trial in the District Court on a charge of sexual intercourse with a child under the age of 10, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The complainant was his granddaughter, who was between 3 and 6 years old at the time of the alleged offending. The Crown case was that the appellant digitally penetrated her vagina on one occasion at her mother's home, while her brother was nearby and the appellant's wife was in another room.

The complainant gave evidence at trial aged 7 and had participated in two recorded police interviews at age 6. The appellant denied all allegations and gave evidence at trial. He was sentenced to 5 years and 6 months imprisonment with a non-parole period of 3 years and 4 months.

The appellant sought leave to appeal against both conviction and sentence. Three grounds raised matters not argued at trial, requiring leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The fourth ground, that the verdict was unreasonable, required only the general grant of leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

Legal Issues

  • Whether the jury's guilty verdict was unreasonable and could not be supported having regard to the evidence, including the reliability of the complainant's account
  • Whether the trial judge erred in failing to give a "full" character direction, including a second limb directed to the appellant's credibility as a witness
  • Whether the trial judge erred in directing the jury that no inference could be drawn from the absence of medical or injury evidence
  • Whether the trial judge erred in directing the jury that no allegation of deliberate lying had been put to any witness
  • Whether the sentence of 5 years and 6 months imprisonment was manifestly excessive

Decision

Ground 4: Unreasonable verdict

The court conducted an independent review of the whole of the evidence, with particular focus on the inconsistencies identified by the appellant. Those inconsistencies included discrepancies between the father's account of what the complainant told him and her own evidence, the complainant's differing accounts across the two police interviews regarding conduct at the appellant's house, and equivocal answers in cross-examination concerning whether the touching occurred over or under clothing. The court found these matters were placed squarely before the jury, were addressed in addresses and summing up, and did not render the verdict unreasonable (at [66]). The jury's advantage in seeing and hearing the complainant was a significant consideration in a case that turned substantially on a word-on-word account (at [45], [66]).

The court also addressed in some detail the proper use of audiovisual recordings on appeal. It confirmed that the "real review" obligation does not require an appellate court to view the entirety of recordings, and that parties bear the responsibility of identifying any discrete portions where the recording provides material not discernible from the transcript (at [38]-[44]). The court limited its viewing to two short portions identified by the Crown as raising specific forensic questions.

Ground 1: Failure to give a full character direction

The court found that at trial the parties had reached a forensic agreement: character evidence would be confined to the absence of prior convictions, in exchange for the Crown not adducing rebuttal evidence. The court inferred from the exchange of emails between counsel on 13 October 2023, and the absence of any objection by defence counsel to the limited direction when it was given and when it was provided to the jury in written form, that a "limited character direction" was the agreed outcome (at [99]-[105]).

Leave under r 4.15 was refused because the failure to seek a fuller direction reflected a deliberate forensic choice rather than inadvertence, and no evidence was adduced from trial counsel to support the assertion of oversight (at [106]-[109]). The court further held that even if leave were granted, no real chance of acquittal had been lost: the jury received a direction that the absence of convictions made it less likely the appellant had offended, and also received a Liberato direction requiring acquittal if the appellant's evidence might be true (at [108]).

Ground 2: Direction concerning absence of injury evidence

The trial judge directed the jury that they could not speculate about medical evidence that had not been placed before them. The court found this direction was not misleading when read as a whole, was accompanied by a clear instruction against speculation, and had been accepted without objection by defence counsel at trial (at [119]-[120]). Leave to appeal on this ground was refused, as the ground lacked merit (at [121]).

Ground 3: Direction that no allegation of deliberate lying was put to any witness

The court accepted that the trial judge's characterisation was accurate: no witness had been squarely put that he or she was deliberately lying, even though defence counsel in closing address had submitted that the complainant had a "propensity for either lying intentionally, or being careless with the truth" (at [127]). The trial judge also explicitly directed the jury to assess the honesty of witnesses before considering reliability. The direction did not undermine the defence case and the ground lacked merit (at [130]).

Ground 5: Manifest excess in sentence

The court found that a sentence of 5 years and 6 months with a non-parole period of 3 years and 4 months for offending assessed as just below the mid-range of objective seriousness was not manifestly excessive. The standard non-parole period for the offence is 15 years and the maximum is life imprisonment. JIRS statistics showed that among offenders sentenced after trial for this offence, 72.7% received sentences exceeding 5 years and 6 months, and all received full-time imprisonment (at [135]). Favourable subjective findings, including good prospects of rehabilitation and strong character references, were taken into account but did not render the sentence manifestly excessive (at [136]).

Orders Made

  • Leave to appeal refused on proposed grounds 1, 2 and 3
  • Leave to appeal granted on grounds 4 and 5
  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • An appellate court conducting a "real review" of a conviction where audiovisual recordings exist is not required to view the entirety of those recordings. The parties bear responsibility for identifying discrete portions where the recording provides something material not discernible from the transcript, and an unparticularised submission to view all recorded evidence does not identify a sufficient forensic purpose (at [38]-[44]).

  • Where a forensic agreement was reached at trial to limit character evidence to an absence of prior convictions, and that agreement was reflected in the directions given without objection, a ground on appeal complaining of the absence of a fuller character direction will ordinarily not attract leave under r 4.15. A deliberate choice not to seek a direction in order to obtain a trial benefit will generally be fatal to such a grant of leave (at [105]-[109]).

  • In a word-on-word trial of a sexual offence involving a child complainant, the jury's advantage in seeing and hearing the complainant is a weighty consideration when an appellate court assesses whether a verdict is unreasonable. An appellate court must give full weight to that advantage before concluding a verdict cannot stand (at [45], [66]).

  • Inconsistencies in a child complainant's evidence, including differences between police interview accounts and evidence at trial, do not in themselves render a verdict unreasonable where those inconsistencies were placed before the jury, addressed in both counsel's addresses and the trial judge's summing up, and considered within the jury's assessment of credibility (at [63]-[66]).

  • A sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years and 4 months for a conviction of sexual intercourse with a child under 10, assessed as just below mid-range for objective seriousness and following a contested trial, was not manifestly excessive in circumstances where the maximum penalty is life imprisonment and the standard non-parole period is 15 years (at [135]-[136]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 66A, 66DA, 578A
- Criminal Appeal Act 1912 (NSW) s 5
- Supreme Court ( Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases
- Aravena v R [2015] NSWCCA 288
- Barwick v R [2023] NSWCCA 139
- BQ v The King [2024] HCA 29
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- FX v R; GX v R [2020] NSWCCA 189; 290 A Crim R 31
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Greenhalgh v R [2017] NSWCCA 94
- Guo v The Queen [2020] NSWCCA 40
- JV v R [2017] NSWCCA 49
- Kanbut v R [2022] NSWCCA 259
- Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159
- R v Jovanovic (1997) 42 NSWLR 520
- R v Markuleski [2001] NSWCCA 290
- R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep)
- R v ZT [2025] HCA 9; 99 ALJR 676
- Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472
- Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13