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Court of Criminal Appeal 1 October 2025

Tanujaya v R

[2025] NSWCCA 154

Sexual offences

Citation: Tanujaya v R [2025] NSWCCA 154
Court: Court of Criminal Appeal, NSW
Date: 1 October 2025
Judges: Stern JA (lead judgment); Free JA and Rigg J (agreeing)

Background

A jury unanimously convicted the applicant of six counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), following an encounter at the complainant's apartment in the early hours of 11 September 2022. The complainant, referred to as CK, was 18 years old at the time and had been diagnosed with autism spectrum disorder with low support needs. The parties had met through the dating app Tinder days earlier.

The parties agreed that some sexual activity that evening was consensual. The Crown case was that six separate instances of non-consensual intercourse followed: three instances of penile-anal intercourse, one of oral intercourse, and two of penile-vaginal intercourse. The applicant did not give evidence at trial, but a recorded police interview in which he admitted to the sexual activity and to choking and slapping the complainant was played to the jury. He maintained that the complainant had consented throughout.

The applicant sought leave to appeal his convictions, arguing that all six guilty verdicts were unreasonable and could not be supported having regard to the evidence.

  • Whether the six verdicts of guilty were unreasonable and could not be supported having regard to the evidence, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether alleged inconsistencies between the complainant's accounts given shortly after the offending and her trial evidence undermined the reliability of those verdicts
  • Whether the complainant's conduct after the offending was inconsistent with the jury's findings
  • Whether prior communications between the applicant and the complainant supported the applicant's claim of a belief in consent
  • Whether the applicant's good character and his police interview account were sufficient to raise a reasonable doubt

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Applying the principles from Pell v The Queen (2020) 268 CLR 123 and R v ZT [2025] HCA 9, the Court assessed the applicant's contentions on the assumption that the jury had accepted the complainant's evidence as credible and reliable. On that basis, all three judges were satisfied that there was no reasonable doubt as to the applicant's guilt and that it was open to the jury to convict on each of the six counts.

On the alleged inconsistencies in the complainant's early accounts, Stern JA found that they did not undermine credibility or reliability. The complainant had explained that her primary focus in the days immediately following the offending was the non-consensual anal intercourse, which had caused her the most pain and trauma. It was entirely understandable, in that context, that her initial accounts emphasised those incidents rather than providing a complete recitation of every act.

The pre-offending communications between the parties, including messages exchanged via Tinder, Instagram, and Snapchat, did not assist the applicant. The Court found no basis on which those messages could be read as inconsistent with the complainant's lack of consent to the offending conduct, or with the applicant's knowledge of that lack of consent as explained by the trial judge.

Stern JA (with Free JA agreeing) firmly rejected the suggestion that the complainant's conduct after the offending, including remaining with the applicant briefly and signing him out of the building, undermined her account. The Court restated that assumptions about how victims of sexual offending would or should behave have no place in this analysis. The jury was also entitled to reject the applicant's police interview account, which had to be weighed against the complainant's evidence and the supporting accounts of other witnesses. Any residual doubt the Court might have had was capable of being resolved by the jury's significant advantage in having seen and heard the witnesses over four days of evidence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the Pell framework requires the appellate court to assess alleged unreasonableness on the assumption that the jury accepted the complainant's evidence as credible and reliable, while still examining all material relied upon by the applicant.
  • Omissions from a complainant's early accounts do not necessarily undermine credibility; where a complainant explains that she focused on the most traumatic element of the offending, the jury is entitled to accept that explanation.
  • Assumptions about how victims of sexual offending would or should behave, including conduct immediately after an assault, have no proper role in assessing the reasonableness of a verdict. This principle was described as "repeatedly affirmed."
  • Prior communications between parties on dating or social media apps do not automatically provide context supporting a belief in consent; such messages must be assessed against the specific elements of the offences as explained to the jury by the trial judge.
  • The jury's advantage in observing witnesses give evidence over multiple days, particularly where a complainant is cross-examined at length, carries significant weight when an appellate court evaluates whether any residual doubt should have produced a different verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v ZT [2025] HCA 9; 99 ALJR 676
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Harper v R [2022] NSWCCA 211