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Court of Criminal Appeal 3 October 2025

SS v R

[2025] NSWCCA 153

Sexual offences
CRIME APPEAL APPEAL AGAINST CONVICTION AGGRAVATED INDECENT ASSAULT AGGRAVATED INCITE ACT OF INDECENCY UNREASONABLE VERDICTS

Citation: SS v R [2025] NSWCCA 153
Court: Court of Criminal Appeal, New South Wales
Date: 3 October 2025
Judges: Harrison CJ at CL (lead judgment); Lonergan J and Dhanji J (agreeing)

Background

The applicant was tried in the District Court on twelve counts of sexual offences alleged to have been committed against his biological daughter, who was 12 years old at the time. The offences were said to have occurred across three separate incidents over a four-month period while the complainant lived alone with her father. The sole question at both trials was whether the sexual acts took place; the defence contended the complainant had fabricated the allegations, either independently or in collusion with her mother and grandmother, in order to be removed from the applicant's custody.

At the first trial in February 2021, the jury convicted the applicant on counts 1 to 3 (two counts of aggravated indecent assault and one count of aggravated incite act of indecency) but was unable to reach a verdict on the remaining nine counts. At a retrial in July 2022, a different jury acquitted the applicant on all nine remaining counts. The applicant was sentenced to an aggregate term of five years' imprisonment with a non-parole period of three years.

The applicant sought leave to appeal his convictions from the first trial, arguing that the guilty verdicts could not stand in light of the hung jury on the other counts and the subsequent acquittals.

  • Whether the verdicts of guilty on counts 1 to 3 were unreasonable, given alleged inconsistencies in the complainant's evidence about the sequence of events.
  • Whether the convictions were inconsistent with the jury's failure to agree on counts 4 to 12 in the first trial, and with the outright acquittals on those counts at the retrial.
  • Whether evidence adduced at the second trial (but not the first) constituted "fresh evidence" capable of supporting a miscarriage of justice ground on appeal.

Decision

Ground 1: Unreasonable verdicts. The Court found it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the three offences. The complainant's errors about the sequence of events did not render the verdicts unreasonable. The Court noted that neither side disputed that an event of a sexual nature had occurred; the real contest was about the character of that event. Any confusion about the order in which things happened was readily explicable by the complainant's young age and the time that had passed before she disclosed the conduct and gave evidence.

Ground 2: Inconsistent verdicts. The Court held that the convictions on counts 1 to 3 were entirely consistent with the jury's obligation to assess each count separately and its entitlement to accept parts of the complainant's evidence while rejecting others. The verdicts were far from "logically inexplicable." Significantly, the applicant's own electronically recorded police interview included admissions that bore some resemblance to the complainant's account of the first incident, encompassing the conduct described in counts 1 to 3. That similarity provided a rational basis for the jury to reach a verdict on those counts while maintaining doubt about the others. The Court also confirmed that acquittals at a second trial do not, of themselves, render convictions from an earlier trial inconsistent.

Ground 3: Fresh evidence. The applicant sought to rely on evidence given at the second trial by a witness who had observed the complainant shortly after the period covered by counts 1 to 3. That witness had seen no bruising and described the complainant as appearing happy. The Court rejected this as "fresh evidence" within the legal meaning of the term. The witness was in a close familial relationship with the applicant, meaning the evidence was available to the defence at the first trial. No explanation was offered for why the evidence was not called. The Court also observed that the evidence was of no real consequence to counts 1 to 3 in any event, and the Crown did not cross-examine the witness at the second trial.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • A complainant's mistaken recollection about the sequence of events does not automatically render a conviction unreasonable, particularly where the complainant was young and considerable time elapsed before disclosure.
  • Convictions on some counts are not rendered inconsistent merely because the same jury could not agree on other counts in the same trial, or because a subsequent jury acquitted on those other counts. The jury's obligation to treat each count separately is a sufficient explanation for differential outcomes.
  • Where an accused's own police interview contains admissions broadly consistent with part of the complainant's account, that can provide a rational basis for a jury to convict on counts corresponding to that part while doubting the remainder.
  • Evidence is not "fresh" for appellate purposes if it was available to the defence at the original trial. The Court of Criminal Appeal confirmed that no explanation having been offered for why the evidence was not called was fatal to the fresh evidence ground.
  • In dismissing the appeal, the Court applied the MacKenzie v The Queen (1996) 190 CLR 348 test: inconsistent verdicts must be "logically inexplicable" before a conviction can be set aside on that basis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M (repealed), 61O (repealed), 61J
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases:
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- JL v R [2023] NSWCCA 99
- HO v R [2023] NSWCCA 245
- Omigie v R [2024] NSWCCA 205
- Ferguson v R [2024] NSWCCA 81
- SM v R [2022] NSWCCA 13
- Bridger v R [2022] NSWCCA 125
- Fisher v R; R v Fisher [2021] NSWCCA 91
- R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31