Citation: Radburn (a pseudonym) v R [2025] NSWCCA 125
Court: NSW 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 applicant, a 62-year-old man referred to by pseudonym, was convicted by a jury in the District Court in 2023 of one count of sexual intercourse with a child under 10 years of age, 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 centred on digital penetration occurring at the complainant's mother's home in Jordan Springs, where the applicant and his wife regularly assisted with childcare. The applicant denied all offending.
The complainant participated in two recorded police interviews at ages 6 and gave evidence at trial at age 7. Her initial disclosure arose after an exchange with her father, who reported what she told him to police. The defence case was that the complainant's account was unreliable and had been shaped by leading questions from her father and police.
The applicant was sentenced in April 2024 to 5 years and 6 months' imprisonment, with a non-parole period of 3 years and 4 months. He sought leave to appeal both conviction and sentence.
Legal Issues
- Whether the guilty verdict was unreasonable and could not be supported having regard to the evidence
- Whether the trial judge erred in giving only a limited good character direction (restricted to the absence of prior convictions) rather than a "full" character direction
- Whether the trial judge erred in directing the jury that they could not conclude the complainant suffered no injury merely because no medical evidence confirmed injury
- Whether the trial judge erred in directing the jury that no witness had been challenged on the basis of deliberate lying
- Whether the sentence of 5 years and 6 months was manifestly excessive
Decision
Unreasonable verdict (Ground 4): The Court considered six identified deficiencies in the Crown case, including inconsistencies in the complainant's evidence across the two police interviews and at trial, and the absence of supporting medical or corroborating evidence. Applying the principles in M v The Queen and Pell v The Queen, the Court found that it was not satisfied the jury's verdict was unreasonable. The Court noted the jury had the advantage of seeing and hearing the complainant, and found that the inconsistencies and gaps identified by the applicant did not raise a reasonable doubt as to his guilt.
Limited character direction (Ground 1): The applicant did not raise this issue at trial. The Court found that the conduct of defence counsel at trial was consistent with a deliberate forensic agreement: in exchange for the Crown not calling evidence to rebut the applicant's limited character evidence (confined to his absence of prior convictions), only a limited character direction would be sought. Defence counsel neither objected to the Crown's proposed direction, sought any re-direction after the direction was given, nor raised any issue when an edited summing-up including that direction was provided to the jury. The Court was satisfied leave to argue the ground should be refused.
Remaining directions grounds (Grounds 2 and 3): The Court found no error warranting intervention in either the direction concerning the absence of medical evidence or the direction regarding the absence of any positive challenge to witnesses on the basis of deliberate lying. Leave to argue these grounds was refused.
Sentence: The Court dismissed the appeal against sentence, finding the term was not manifestly excessive given the nature and seriousness of the offending.
Orders Made
No orders were made in this decision.
Key Takeaways
- In dismissing the unreasonable verdict ground, the Court of Criminal Appeal applied the established principle that a verdict may stand even where there are inconsistencies in a complainant's evidence, provided those inconsistencies do not raise a reasonable doubt as to guilt when the whole of the evidence is considered.
- Where defence counsel at trial neither objected to a limited character direction nor sought a re-direction after it was given, those omissions may be consistent with a deliberate forensic agreement and will weigh against a finding of miscarriage of justice on appeal.
- A failure to seek a re-direction at trial is, in the Court's analysis, a strong indication that no miscarriage of justice occurred, consistent with the High Court's approach in BQ v The King [2024] HCA 29.
- Grounds of appeal not raised at trial require leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), and courts will scrutinise whether an omission was a deliberate forensic choice rather than an oversight.
- Convictions under s 66A of the Crimes Act 1900 (NSW) carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years; the sentence imposed here of 5 years and 6 months was upheld as not manifestly excessive in the circumstances.
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:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- R v ZT [2025] HCA 9; 99 ALJR 676
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472
- Aravena v R [2015] NSWCCA 288
- Greenhalgh v R [2017] NSWCCA 94
- Guo v The Queen [2020] NSWCCA 40
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159