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Court of Criminal Appeal 15 August 2025

Bennett v R

[2025] NSWCCA 126

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT

Citation: Bennett v R [2025] NSWCCA 126
Court: Court of Criminal Appeal, New South Wales
Date: 15 August 2025
Judges: Price AJA (leading judgment); Ierace J and Rigg J (agreeing)

Background

The applicant was convicted in the District Court at Newcastle following a jury trial in February 2024 on one count of intentionally sexually touching a child under the age of 10 years, contrary to s 66DA(a) of the Crimes Act 1900 (NSW). The complainant was either eight or nine years old at the time of the offending. The applicant, who was around 30 or 31 years old, was a friend of the complainant's mother and had been staying in the guest bedroom of the family home.

The offending was alleged to have occurred when the complainant and her younger brother sometimes slept in the applicant's room, attracted by the large adjustable bed and a television. The complainant, who was 11 years old at the time of her recorded police interview, described the applicant touching her sexually while she lay on the bed with the lights off and the television on. The jury acquitted the applicant of the more serious charge of sexual intercourse with a child under the age of 10 (Count 1) but convicted him on the sexual touching charge (Count 2).

The applicant was sentenced to two years and six months imprisonment with a non-parole period of 18 months. He did not appeal his sentence. On the conviction appeal, the sole argument advanced was that the jury's verdict on Count 2 was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict on Count 2 was unreasonable or could not be supported by the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • More specifically, whether there was a reasonable possibility that the complainant's account of the sexual assault was the product of a hallucination rather than a real event, such that the verdict could not stand

Decision

The Court of Criminal Appeal granted leave to appeal (leave being required because the ground did not raise a question of law alone) but unanimously dismissed the appeal. Price AJA, with Ierace J and Rigg J agreeing, conducted an independent assessment of the whole of the trial evidence, as required by the authorities governing unreasonable verdict appeals.

On the hallucination question, the Court found that the complainant's references to occasionally hallucinating were qualitatively distinct from her account of what happened in the applicant's bed. Ierace J, in a brief separate observation, noted that the hallucination experiences the complainant described were quite different in character from the assault she described. Rigg J, having conducted his own independent review, was not persuaded that a hallucination was a reasonable possibility on the evidence.

A significant feature of the case was that the hallucination argument had not been put to the complainant in cross-examination at trial, nor had the applicant's trial counsel submitted to the jury that hallucination was a reasonable possibility. The Court noted this appeared to have been a deliberate forensic decision, consistent with the evidence not supporting such a submission. The trial judge had nonetheless directed the jury's attention to the complainant's evidence about hallucinations, so the issue was before the jury.

Having assessed all of the evidence, the Court concluded it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on Count 2, and that there was no significant possibility that an innocent person had been convicted, applying the test from M v The Queen (1994) 181 CLR 487.

Orders Made

  • Leave to appeal against the conviction granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict ground requires the appellate court to independently assess the whole of the evidence and ask whether it was open to the jury to be satisfied beyond reasonable doubt. The standard remains that set out in M v The Queen and affirmed through Pell v The Queen and the subsequent line of authorities.
  • A hallucination argument advanced on appeal carries reduced weight where it was not put to the complainant in cross-examination and was not advanced as a positive submission to the jury at trial. The Court treated the omission as an apparent forensic decision by trial counsel, implying the evidence at trial did not support the argument.
  • Sufficient distinction between a complainant's described hallucinatory experiences and the specific events underlying a charged offence can itself be a basis for the jury, and the appellate court, to reject a hallucination defence.
  • The fact that a jury acquitted on a more serious alternative count does not, of itself, render the conviction on a lesser alternative count unreasonable. The Court found the Count 2 conviction supportable independently on the evidence.
  • Under the M v The Queen standard, the relevant question on appeal is not whether the appellate court has a personal doubt, but whether there is a significant possibility that an innocent person has been convicted. No such possibility was established here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 66DA
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), s 294G(1)

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- SKA v R (2011) 243 CLR 400
- Pell v The Queen (2020) 268 CLR 123
- Dansie v The Queen (2022) 274 CLR 651
- R v Baden-Clay (2016) 258 CLR 308
- Dickson v R (2017) 94 NSWLR 476
- R v ZT [2025] HCA 9
- Ratten v The Queen (1974) 131 CLR 510
- Doggett v The Queen (2001) 208 CLR 343
- Nudd v The Queen (2006) 80 ALJR 614
- Xiao v R [2022] NSWCCA 95
- Hanna v R [2023] NSWCCA 182
- Marco v R [2023] NSWCCA 307
- RM v R [2024] NSWCCA 148
- Smith v R [2025] NSWCCA 104