AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 17 September 2025

Smith (a pseudonym) v R

[2025] NSWCCA 145

Sexual offences
CRIMES APPEALS APPEALS LEAVE TO APPEAL LEAVE TO APPEAL REFUSED

Citation: Smith (a pseudonym) v R [2025] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 17 September 2025
Judge(s): Stern JA (leading judgment); Cavanagh J and Yehia J (agreeing)

Background

The applicant, the half-uncle of a child complainant on her father's side, was convicted after a judge-alone trial on four counts of sexual offending against the complainant, who was 12 or 13 years old at the time of the conduct. The complainant had lived with the applicant and his family since she was approximately seven years old. Separately, in 2017, the complainant had been sexually touched or assaulted by her maternal uncle, who pleaded guilty and was convicted for that conduct.

The case turned significantly on events of 10 October 2022, when the complainant disclosed sexual assault to a school friend, ER, and later to three teachers. On that same morning, the applicant made general admissions of sexual misconduct in messages exchanged with the complainant over the Discord messaging app. ER's account of the disclosure differed from the complainant's in several respects, including that ER said the complainant identified the assailant as her maternal uncle, not the applicant.

Before trial, the applicant applied under s 294CB(4)(a) of the Criminal Procedure Act 1986 (NSW) for leave to cross-examine the complainant and ER about the 2017 conduct, arguing it was relevant to contextualise the complainant's distress on 10 October 2022. That application was unsuccessful. At no point did the applicant seek leave to cross-examine the complainant on the details of the 2017 conduct. On appeal, the applicant reframed the argument: he sought leave to appeal on the basis that the inability to cross-examine the complainant under s 294CB(6), both as to the fact and the details of the 2017 conduct, caused a miscarriage of justice.

  • Whether the Crown leading ER's oral evidence that the complainant said she had been sexually assaulted by her maternal uncle satisfied the requirements of s 294CB(6)(a) of the Criminal Procedure Act 1986 (NSW), which creates a cross-examination right where the Crown leads evidence of a complainant's prior sexual experience.
  • Whether the applicant required leave to raise a ground of appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), where the evidentiary ruling now sought was not pursued before the trial judge.
  • Whether the decision not to seek cross-examination on the details of the 2017 conduct at trial was an objectively rational forensic decision, and what consequences that had for the grant of leave.
  • Whether the proposed cross-examination on the details of the 2017 conduct would have produced a different result at trial such that its absence occasioned a miscarriage of justice.

Decision

The Court of Criminal Appeal found that ER's evidence did satisfy the threshold in s 294CB(6)(a), regardless of whether the Crown had specifically set out to lead evidence of the prior disclosure. The relevant evidence emerged when the Crown asked ER how the uncle who the complainant said "did things to her" was related to her, and ER responded that it was the maternal uncle. That was sufficient to engage the provision. The court rejected any suggestion that whether s 294CB(6)(a) is satisfied should depend on an assessment of the credibility or reliability of the disclosure by reference to the broader evidence.

Despite finding that s 294CB(6)(a) was technically satisfied, the court refused leave to appeal on the basis that the decision not to seek cross-examination on the details of the 2017 conduct at trial was an objectively rational one. That decision could have conferred real forensic advantages: exploring the details of the 2017 conduct might have exposed the defence to significant risks, including distressing testimony that could have strengthened the Crown's case. The court drew on the approach in Hamilton v The Queen, finding it was not open to infer the omission was oversight rather than deliberate strategy.

The court also identified that it was pure speculation what cross-examination on the details of the 2017 conduct might have revealed. Nothing was placed before the Court of Criminal Appeal to indicate that those details would have supported the applicant's arguments about inconsistency or the possibility that the complainant had conflated the 2017 conduct with the applicant's conduct. In any event, ER's evidence as a whole was in significant respects corroborative of the complainant's account of sexual assault by the applicant, strongly suggesting the complainant's disclosure on 10 October 2022 was of the applicant's conduct.

The Court further noted that, even if s 294CB(6) were engaged, it was not clear the trial judge would have been satisfied, as required under s 294CB(4), that the probative value of any evidence obtained through such cross-examination would have outweighed the distress, humiliation or embarrassment the complainant might suffer from its admission.

Orders Made

  • Leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) and under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) refused.

Key Takeaways

  • Under s 294CB(6)(a) of the Criminal Procedure Act 1986 (NSW), the threshold for engaging a defendant's right to cross-examine a complainant about prior sexual experience can be satisfied by the Crown leading oral evidence of a disclosure of that experience, even if the Crown did not set out to adduce it as such.
  • Whether s 294CB(6)(a) is satisfied does not depend on an assessment of the credibility or reliability of the relevant disclosure by reference to the overall evidence in the trial.
  • A deliberate forensic decision not to seek a particular evidentiary ruling at trial weighs heavily against a grant of leave to raise that omission as a ground of appeal on the basis of miscarriage of justice, following the approach confirmed in Hamilton v The Queen (2021) 274 CLR 531.
  • Speculative arguments about what cross-examination might have achieved, unsupported by any evidence of what the cross-examination would actually have revealed, are unlikely to satisfy the merits threshold for a grant of leave under r 4.15 or s 5(1)(b).
  • In dismissing the leave application, the Court of Criminal Appeal confirmed that the probative value threshold under s 294CB(4) presents a genuine obstacle where the content and outcome of proposed cross-examination cannot be identified with any precision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61J, 66C
- Criminal Appeal Act 1912 (NSW) s 5(1)(b)
- Criminal Procedure Act 1986 (NSW) s 294CB
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases
- Brawn v The King [2025] HCA 20
- Cook (a pseudonym) v The King [2024] HCA 26
- Gould v R [2023] NSWCCA 103; 377 FLR 26
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
- Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Radburn (a pseudonym) v R [2025] NSWCCA 125
- Rowney v R [2007] NSWCCA 49
- Taleb v R [2015] NSWCCA 105
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- WHS v R [2024] NSWCCA 242