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Court of Criminal Appeal 14 November 2025

ZBJ v R (No 2)

[2025] NSWCCA 187

Sexual offences

Citation: ZBJ v R (No 2) [2025] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 14 November 2025
Judges: Adamson JA (principal judgment); Chen J (agreeing); Rigg J (agreeing)

Background

The applicant, referred to as ZBJ, was convicted by a jury of a single offence of maintaining an unlawful sexual relationship with his natural daughter, then aged between 14 and 16 years, contrary to s 66EA of the Crimes Act 1900 (NSW). The offending was found to have occurred between January 2007 and May 2008. Culver DCJ sentenced ZBJ to 18 years imprisonment with a non-parole period of 11 years, commencing 23 February 2023.

ZBJ appeared without legal representation on appeal. The principal prosecution witness was the complainant herself, supported by her mother, friends, a psychologist, and a former boyfriend. ZBJ gave evidence at trial denying the charge and called character evidence from his brother.

ZBJ mounted an unusually broad challenge, raising more than 20 grounds across the conviction and sentence appeals. These targeted his trial counsel, the Crown prosecutor, the trial judge, the admissibility of various categories of evidence, the constitutionality of s 66EA, and the reasonableness of both the verdict and the sentence.

The Court was asked to resolve the following key questions:

  • Whether s 66EA of the Crimes Act 1900 (NSW) is constitutionally valid, having regard to Ch III of the Commonwealth Constitution and s 80 (the right to trial by jury)
  • Whether the offence under s 66EA differs in its elements and criterion of liability from earlier statutory sexual offences against children
  • Whether s 66EA, properly construed, deprived the applicant of a fair trial or permitted punishment for uncharged offences
  • Whether s 108C of the Evidence Act 1995 (NSW), permitting expert evidence about witness credibility, was compatible with trial by jury
  • Whether conduct by defence counsel amounted to incompetence causing a miscarriage of justice
  • Whether the Crown prosecutor's conduct in various respects (disclosure failures, reliance on low-probative evidence, cross-examination, closing address) caused a miscarriage of justice
  • Whether various categories of evidence (expert, tendency, context, complaint) were properly admitted
  • Whether the trial judge demonstrated bias or made material misrepresentations in the summing-up
  • Whether the jury's verdict was unreasonable
  • Whether the sentence was infected by error, including manifest excess

Decision

The Court dismissed all grounds of appeal against conviction and sentence, refusing leave on all grounds for which leave was required (except that leave was granted on ground 6 of the conviction appeal and ground 4 of the sentence appeal, on which the court nonetheless found against the applicant).

On the constitutional challenge, the Court confirmed that s 66EA creates a distinct offence whose criterion of liability is the maintenance of an unlawful relationship, not the commission of particular unlawful acts. This statutory design does not deprive an accused of a fair trial and does not permit punishment for uncharged offences. The Court also held that s 108C of the Evidence Act, which allows expert evidence to correct possible jury misconceptions about complainant behaviour, does not compromise the essential features of trial by jury.

The Court rejected all challenges to the conduct of the Crown prosecutor, defence counsel, and the trial judge. None of the applicant's complaints about these parties disclosed legal or factual error. The allegations of bias against the trial judge were also rejected. The tender on appeal of documents said to constitute new or fresh evidence was refused.

On the unreasonable verdict ground, all three judges independently assessed the evidence. Each concluded that, on the whole of the evidence (including its sufficiency and quality), it was well open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt, and none experienced a reasonable doubt. The sentence appeal was similarly dismissed, with no error established in the sentencing judge's approach.

Orders Made

  • Tender of all documents the applicant sought to tender on appeal (ground 2 of the conviction appeal) rejected
  • Leave to appeal granted on ground 6 of the conviction appeal; leave refused on all other conviction grounds except ground 12 (which required no leave as a question of law alone)
  • Appeal against conviction dismissed
  • Leave to appeal granted on ground 4 of the sentence appeal; leave refused on all other sentence grounds
  • Appeal against sentence dismissed
  • Application for release on bail dismissed

Key Takeaways

  • Under s 66EA of the Crimes Act 1900 (NSW), the criterion of liability is the maintenance of an unlawful sexual relationship, not the commission of particular underlying unlawful acts. This distinguishes the offence from earlier statutory offences and does not expose an offender to punishment for uncharged conduct.
  • The constitutional challenge to s 66EA failed. The Court of Criminal Appeal held that the provision does not deprive an accused of a fair trial, whether considered on its own terms or in its broader statutory context.
  • Section 108C of the Evidence Act 1995 (NSW), permitting expert evidence to address possible jury misconceptions about the behaviour of complainants in sexual offence cases, does not undermine the essential features of trial by jury.
  • No miscarriage of justice arises merely from criticism of defence counsel's forensic choices, unless those choices fall below the standard of competence required of counsel and actually caused a substantial miscarriage; none of ZBJ's complaints met that threshold.
  • In dismissing the unreasonable verdict ground, all three judges independently reviewed the trial evidence and each was satisfied that a guilty verdict was well open to the jury, confirming the established appellate standard requires more than a different assessment of the evidence to disturb a jury's finding.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EA
- Evidence Act 1995 (NSW), ss 55, 66, 76, 79, 94, 97, 97A, 101, 102, 103, 106, 108C, 137, 144, 164, 165B
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 161A, 293A, 294, 294AA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25AA, 28, 30E, 30G
- Bail Act 2013 (NSW), ss 22, 74
- Commonwealth Constitution, Ch III, s 80
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 42, 61, 64, 65, 67, 83

Key Cases:
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- HCF v The Queen (2023) 280 CLR 596; [2023] HCA 35
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Browne v Dunn (1894) 6 R 67