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Court of Criminal Appeal 24 October 2025

TC v R

[2025] NSWCCA 170

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION INDECENT ASSAULT OF A CHILD UNDER 16 VERDICT UNREASONABLE SENTENCE APPEAL

Citation: TC v R [2025] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 24 October 2025
Judges: Payne JA (primary judgment); Sweeney J and Huggett J agreeing

Background

The applicant (referred to as TC to protect the anonymity of the child complainant) was convicted by a District Court jury in June 2019 on two counts of indecently assaulting a child under 16, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The complainant (referred to as OB) was his 12-year-old stepdaughter. He was acquitted on a third count. TC received an aggregate sentence of 3 years and 9 months with a 2-year non-parole period, which he had fully served, including parole, by September 2023.

TC was represented by counsel at trial but appeared self-represented on appeal. He filed his notice of appeal approximately four years and eight months after conviction, around two years after his release on parole, and ten months after his sentence expired.

The appeal raised 11 grounds against conviction and 12 grounds against sentence. A central practical concern motivating the sentence appeal was TC's registration as a child sex offender, which flows from his conviction rather than from the sentence itself.

  • Whether the jury's verdicts on counts 1 and 3 were unreasonable or could not be supported by the evidence
  • Whether inconsistent verdicts arose from TC's acquittal on count 4 alongside his conviction on count 3
  • Whether the committal proceeding was irregular because the complainant's mother did not give evidence at that stage
  • Whether the trial judge's interventions during the complainant's evidence, directions on context evidence, and responses to jury notes were procedurally improper
  • Whether uncharged acts admitted as context evidence were properly before the jury
  • Whether the Crown's Edwards lie submission was available on the evidence, and whether TC was afforded procedural fairness before it was made
  • Whether the trial judge misdirected the jury by misapprehending the mental element required for the offence of indecent assault
  • Whether the complainant's evidence was unreliable or improperly obtained through the JIRT interview process
  • Whether proceeding on indictment rather than summarily constituted a miscarriage of justice
  • Whether a direction under s 165B of the Evidence Act 1995 (NSW) regarding delay should have been given

Decision

Unreasonable verdict and inconsistent verdicts (Grounds 1 and 2). The Court found the complainant's evidence on counts 1 and 3 was both credible and reliable, and it was open to the jury to accept her account. The context evidence of uncharged acts was correctly admitted and the jury was properly directed about it. On the question of inconsistent verdicts, the Court confirmed that the relevant inquiry is whether there is a rational explanation for the acquittal, not the conviction. Given that counts 3 and 4 differed in time, place, and specific circumstances, the different verdicts were logically explicable.

Committal and procedural fairness grounds (Grounds 3, 4, and 6). The Court confirmed that a committal proceeding free of irregularity is not an essential precondition to a valid trial on indictment. TC was bound by the decisions of his trial counsel, who could have sought a Basha inquiry but chose not to. The trial judge's interventions during the complainant's evidence, including use of a relatively new procedure for giving evidence, were found to be appropriate and not improperly persistent. On the Edwards lie direction, the Court was satisfied the trial judge was correct to leave the consciousness-of-guilt question to the jury on the evidence available, and no procedural unfairness was established.

Mental element and context evidence (Grounds 5 and 7). The Court reaffirmed the established NSW position that the question of whether an act is indecent is entirely objective, assessed by reference to contemporary community standards, and does not require proof of any mental element such as intention, knowledge, or recklessness. On context evidence, the Court noted that no objection had been taken at trial. An unobjected-to evidence ground can only succeed if admission caused a miscarriage of justice, and no such miscarriage was found. The evidence was plainly relevant and accompanied by appropriate jury directions.

Delay direction and sentence appeal (Grounds 11 and sentence). A s 165B direction is discretionary and must be applied for by a party. TC's trial counsel made no such application, and in any event the delay was comparatively short in context and no forensic disadvantage was demonstrated. On sentence, the Court found the custody threshold was clearly met and the sentence was within the appropriate range. Because TC's entire sentence had been served, any variation would have had no practical effect. The Court further observed that TC's concern about child sex offender registration arises from the conviction itself, not the sentence, and the sentence grounds had no prospects of success.

Orders Made

  • Leave to appeal on grounds 1 to 12 of the sentence appeal refused
  • Each of the 11 grounds of appeal against conviction dismissed

Key Takeaways

  • In NSW, the mental element for indecent assault requires no proof of intention, knowledge, or recklessness as to indecency. Whether an act is indecent is assessed wholly objectively by reference to contemporary community standards, and the Court of Criminal Appeal declined to depart from that established position.

  • An Edwards lie direction (allowing the jury to use a lie told by an accused as evidence of consciousness of guilt) is available to the Crown where the evidence supports it. The failure to give advance notice does not automatically constitute a denial of procedural fairness; the critical question is whether the submission was properly open on the evidence.

  • A committal irregularity does not invalidate a subsequent trial on indictment. Where a defendant was legally represented at trial, failure to seek a Basha inquiry to address gaps in pre-trial evidence binds the defendant on appeal.

  • Where an accused appeals the admission of evidence that was not objected to at trial, the appeal can only succeed if the Court is satisfied the admission caused a miscarriage of justice. Appropriate jury directions will weigh heavily against that conclusion.

  • Refusing leave on the sentence appeal, the Court confirmed that where a full sentence has been served and parole has expired, a successful sentence appeal would produce no practical consequence. Registration as a child sex offender derives from conviction, not sentence, and cannot be addressed through a sentence appeal alone.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Evidence Act 1995 (NSW), ss 165B, 137
- Children's (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 67, 68(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), s 267

Cases
- M v The Queen (1994) [1994] HCA 63
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- The King v ZT [2025] HCA 9
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- Eades v Director of Public Prosecutions [2010] NSWCA 241; 77 NSWLR 173
- Harkin v R (1989) 35 A Crim R 296
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- R v Basha (1989) 39 A Crim R 337
- Potier v Magistrate Maloney and Ors [2005] NSWSC 33
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Jago v The District Court of NSW (1989) 168 CLR 23; [1989]