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Court of Criminal Appeal 15 October 2025

PT v R

[2025] NSWCCA 163

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION INCONSISTENT VERDICTS

Citation: PT v R [2025] NSWCCA 163
Court: Court of Criminal Appeal
Date: 15 October 2025
Judge(s): Wright J (with Weinstein J and Sweeney J agreeing)

Background

The applicant was tried before a judge and jury in the District Court at Sydney on 24 counts of sexual offending against two child complainants. This appeal concerned only the 16 counts relating to one complainant, referred to as HE. (The parties, complainants, and others are identified by initials due to statutory publication prohibitions.)

HE had initially made a complaint in 2009 and participated in a Joint Investigation and Response Team (JIRT) interview shortly afterwards. The matter did not proceed at that time. In early 2021, HE revived his complaint and made a further written statement that included allegations not specifically mentioned in the JIRT interview. At the second trial in October 2023, HE's evidence was adduced through video recordings of the JIRT interview and recorded evidence from a prior, aborted trial.

The jury convicted the applicant on 13 of the 16 counts relating to HE (counts 1 to 4 and 8 to 16) and acquitted him on 3 counts (counts 5, 6 and 7). Those three not guilty verdicts all concerned a single alleged incident described at trial as the "third incident," involving alleged offending at an unknown Bradbury address between 2004 and 2006. The applicant sought leave to appeal against conviction out of time on the ground that the guilty and not guilty verdicts were irreconcilably inconsistent.

  • Whether the jury's guilty verdicts on counts 1 to 4 and 8 to 16 were inconsistent with, and could not stand alongside, the not guilty verdicts on counts 5, 6 and 7.
  • Whether there was a logical and reasonable explanation for the jury reaching different verdicts across the 16 counts that did not require concluding the jury had acted irrationally or rejected the complainant's general credibility.

Decision

Wright J (with the other judges agreeing) granted leave to bring the application out of time, granted leave to appeal, and dismissed the appeal. The central question was whether the divergent verdicts could be reconciled in a way consistent with the jury properly performing its function. The court concluded they could.

The key explanatory factor concerned count 6, which alleged anal intercourse during the third incident in 2004 to 2006. In his JIRT interview, conducted just months after the fourth incident (count 8) in January 2009, HE had described count 8 as the first time that type of sexual activity occurred. That statement was directly inconsistent with the later assertion that the same activity had also occurred years earlier in count 6. The court found the jury could rationally have accepted the JIRT account, given its temporal proximity to the events it described, and so concluded either that count 6 did not occur or that there was reasonable doubt about it. Since counts 5 and 7 formed part of the same third incident as count 6, a reasonable doubt about count 6 could logically generate a reasonable doubt about those counts as well.

By contrast, the guilty counts were distinguishable in several ways. Counts 1, 2 and 3 (the first incident) were supported by confirmatory evidence about dates and where the applicant and HE were living at the time, and involved less serious offending that the jury could have regarded as more inherently credible at that earlier stage of the relationship. No such confirmatory evidence existed for counts 5, 6 and 7. There was also no internal inconsistency in HE's evidence relating to counts 1, 2 and 3 of the kind that existed between his evidence on count 6 and his JIRT interview account of count 8.

The court was satisfied that the not guilty verdicts were explicable for reasons other than a wholesale rejection of HE's credibility. The jury had been directed to consider each count separately, to require proof beyond reasonable doubt of all elements, and that a witness's evidence may be accepted in whole or in part. The verdicts were reconcilable on the view that the jury followed those directions and approached the evidence count by count.

Orders Made

  • Leave granted to make the application for leave to appeal out of time under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
  • Leave to appeal granted under s 5(1) of the Criminal Appeal Act 1912 (NSW)
  • Appeal dismissed

Key Takeaways

  • Inconsistent verdict appeals require showing there is no logical and reasonable explanation for the divergence in verdicts; it is not sufficient to show the verdicts appear surprising or that one count was similar to another.
  • Where a complainant's evidence in an early police interview contradicts later evidence about the same type of alleged conduct, a jury may rationally accept the earlier account and acquit on counts dependent on the later account, without that acquittal undermining guilty verdicts on separate counts.
  • A not guilty verdict need not signify rejection of a complainant's general credibility; a jury may accept evidence in whole or in part and may acquit on one count while convicting on others where there are specific, count-level reasons for doubt.
  • The presence of confirmatory evidence (such as evidence about dates or addresses) supporting some counts but not others can provide a rational basis for different verdicts, even where all counts arise from the evidence of a single complainant.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the relevant test is whether the verdicts can be reconciled consistently with the jury having properly performed its functions, not whether acquittals and convictions sit together on a superficial comparison of the counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A, 66C
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), s 165B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Barney v R [2023] NSWCCA 85
- Davis v R [2024] NSWCCA 120
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151