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Court of Criminal Appeal 7 November 2025

Bredal v R

[2025] NSWCCA 181

Sexual offences

Citation: Bredal v R [2025] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 7 November 2025
Judge(s): Adamson JA (with Chen J and Coleman J agreeing)

Background

The appellant was convicted by a jury in May 2023 of using a carriage service to transmit communications to a person he believed to be under 16 years of age, with the intention of facilitating sexual activity, contrary to s 474.27(1) of the Criminal Code (Cth). The Crown case relied on undercover NSW Police officers who assumed online identities posing as an underage teenage girl. The appellant engaged in sexualised online chats over several weeks and arranged a meeting, which he later cancelled.

The appellant's defence was that he believed the communications were adult roleplay, that he cancelled the meeting and ended contact when he began to suspect the person might actually be underage, and that he never intended to meet with anyone underage. No child abuse material or other evidence of a sexual interest in children was found on his devices.

Following conviction, the appellant was sentenced to 1 year and 7 months imprisonment but released immediately on a three-year recognisance under s 20(1)(b) of the Crimes Act 1914 (Cth), with conditions including supervision, rehabilitation programs, and travel restrictions. A subsequent Crown appeal against sentence on the ground of manifest inadequacy was dismissed by the Court of Criminal Appeal, and the Crown's application for special leave to the High Court was refused.

  • Whether the trial judge misdirected the jury on the belief-as-to-age element of the offence under s 474.27(1) of the Criminal Code (Cth)
  • Whether, given the conceded misdirection, the Court should direct an acquittal or order a re-trial
  • What role the interests of justice play in choosing between those two remedies
  • What weight should be given to the appellant's personal circumstances, the significance of the conviction, and the discretion of the Director of Public Prosecutions

Decision

The Crown conceded the appeal on the misdirection ground, accepting that the legal issue had been authoritatively resolved in Jones v R [2025] NSWCCA 38. The conviction was accordingly quashed. The only contested question was the appropriate remedy: acquittal or re-trial.

Adamson JA, with whom Chen J and Coleman J agreed, held that directing an acquittal and ordering a re-trial are true alternatives, and that directing an acquittal necessarily displaces the prosecutorial discretion of the Director of Public Prosecutions. A direction for acquittal may be appropriate where a sentence has been fully served or where a fair re-trial is no longer possible. However, where the evidence is sufficiently cogent to support a conviction, a re-trial should generally follow unless the interests of justice otherwise require.

The Court found that the jury's verdict was not unreasonable, the misdirection did not undermine the quality of the Crown case, and no undue delay had occurred. The Court also noted that the conviction carried significant consequences beyond the sentence itself, including reporting obligations as a Class 2 offence under the Child Protection (Offenders Registration) Act 2000 (NSW), which bore on community protection considerations. The ceiling principle applied, meaning the appellant could not receive a more serious sentence on re-trial than that already imposed.

The Court declined to direct an acquittal. It held that whether to proceed with a re-trial was a matter falling entirely within the Director's discretion, and expressed that nothing in its reasons was intended to influence that discretion in either direction.

Orders Made

  • Time for filing the notice of appeal extended to 22 May 2025
  • Leave to appeal granted
  • Appeal against conviction allowed
  • Conviction set aside
  • Re-trial ordered
  • Matter remitted to the District Court arraignment list on 14 November 2025

Key Takeaways

  • Directing an acquittal after a successful conviction appeal necessarily displaces the prosecutorial discretion of the Director of Public Prosecutions, and a re-trial will generally be preferred where the evidence is cogent and the interests of justice do not otherwise require an acquittal.
  • A direction for acquittal is most appropriate in circumstances such as a sentence having been fully served or where a fair re-trial is no longer possible; neither condition was satisfied here.
  • The significance of a conviction under s 474.27(1) of the Criminal Code (Cth) extends beyond the sentence imposed, given that it constitutes a Class 2 offence attracting registration and reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), a factor the Court treated as relevant to the interests of justice analysis.
  • The ceiling principle applies on re-trial following a quashed conviction, so a re-tried accused cannot receive a sentence more serious than that originally imposed.
  • Personal hardship evidence, including financial stress, mental health difficulties, and family circumstances, did not displace the conclusion that the interests of justice favoured a re-trial rather than an acquittal directed by the Court.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.27
- Crimes Act 1914 (Cth), s 20
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 8
- Child Protection (Offenders Registration) Act 2000 (NSW), Sch 1B

Cases:
- Jones v R [2025] NSWCCA 38
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35
- R v Pedrana [2001] NSWCCA 66; (2001) 123 A Crim R 1
- Mokbel v Director of Public Prosecutions (Cth) [2021] VSCA 94; (2021) 289 A Crim R 1
- Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22
- WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142
- R v White [2023] NSWSC 611
- R v Gilmore (1979) 1 A Crim R 416
- R v Bredal [2024] NSWCCA 75
- The King v Bredal [2024] HCASL 202