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Court of Criminal Appeal 1 December 2025

Al-Sheikh v R

[2025] NSWCCA 205

Sexual offences

Citation: Al-Sheikh v R [2025] NSWCCA 205
Court: Court of Criminal Appeal, NSW
Date: 1 December 2025
Judges: Bell CJ; Kirk JA; Sweeney J

Background

The applicant was convicted by a jury on ten counts of aggravated sexual intercourse with a child under sections 66C(2) and 66C(4) of the Crimes Act 1900 (NSW). The complainant, referred to as AZ, was the daughter of a woman with whom the applicant was in a relationship. The alleged offences occurred at the family home in Casula and at the applicant's home in Liverpool, spanning a period when AZ was aged between 10 and 16 years.

The matter came to light after AZ disclosed the abuse to a friend on Instagram in May 2020. That friend told a teacher, who then contacted police. AZ participated in two recorded police interviews: one in May 2020 and a further interview in August 2022, in which she recalled additional details. The Crown served a tendency notice seeking to use both interviews to establish that the applicant had a sexual interest in AZ and a tendency to engage in sexual acts with her.

The applicant was sentenced to an aggregate term of 12 years' imprisonment with a non-parole period of 7 years and 9 months. He sought leave to appeal against conviction only, raising five grounds.

  • Whether the trial miscarried because the jury was not directed to avoid using evidence of uncharged acts (including sexual contact during a trip to China and allegations of far more frequent assaults than were charged) for a tendency purpose
  • Whether expert medical evidence from the examining doctor was wrongly admitted, and whether the failure to obtain and adduce a second expert's evidence caused a miscarriage of justice
  • Whether the failure by trial counsel to challenge the complainant's description of the applicant's genitalia, or to tender photographs in response, occasioned a miscarriage of justice
  • Whether a direction given in response to a jury question about reaching verdicts on some counts but not others placed impermissible pressure on jurors
  • Whether the verdicts were unreasonable given the complainant's inability to specify the timing of assaults and the evolution of her account across the two police interviews

Decision

Ground 1 (Tendency directions): The Court held that the trial judge did not err in the directions given, or in omitting an anti-tendency direction. The Court clarified that the reference in section 97 of the Evidence Act 1995 (NSW) to "a party adducing evidence" is best understood as identifying the party seeking to use evidence for a tendency purpose, regardless of which party originally elicited that evidence. Where no objection is taken to such use, the evidence may be used by the jury without the court needing to formally work through the requirements of sections 97, 97A and 101. The approach taken at trial reflected a rational tactical decision by applicant's then-counsel, and the uncharged Sydney acts were in any event properly admissible as tendency evidence.

Ground 2 (Expert evidence): Leave to appeal on ground 2(a) was refused. The Court found the examining doctor's evidence was neutral and did not support the complainant's allegations. As to ground 2(b), the applicant sought to adduce on appeal the opinion of a second medical expert, Dr O'Connor. The Court refused that application, finding the evidence was "new" rather than "fresh" as it could have been obtained at trial. It was also characterised as neutral and did not raise a reasonable doubt about the applicant's guilt.

Ground 3 (Genitalia evidence): No miscarriage of justice arose from the decision by the applicant's legal team not to tender photographs of the applicant's genitalia or to directly challenge the complainant's description of a physical feature. The Court found the omission did not undermine the fairness of the trial.

Ground 4 (Jury pressure): The trial judge's response to a jury question about whether they could reach verdicts on some counts but not others did not constitute an impermissible majority direction or place pressure on individual jurors. The direction was distinguished from the circumstances in Isika v R and Profilio v R.

Ground 5 (Unreasonable verdicts): The Court found the verdicts were open to the jury on the whole of the evidence. The complainant's inability to specify precise timing, her initial understatement to police, and the additional detail provided in the second interview were all matters fully ventilated before the jury. The Court accepted that AZ's explanations for the evolution of her account were reasonable and plausible, and that the jury was well placed to assess her credibility and reliability after observing her give evidence over an extended period.

Orders Made

  • Leave to appeal granted on Grounds 1, 2(b), 3, 4 and 5
  • Appeal dismissed

Key Takeaways

  • Section 97 of the Evidence Act 1995 (NSW), which refers to "a party adducing evidence" in the context of tendency notices, is best understood as identifying the party seeking to use evidence for a tendency purpose, not necessarily the party who originally elicited it.
  • Where no objection is taken to the use of uncharged acts for a tendency purpose, the tribunal of fact may use that evidence without the court formally resolving the requirements under sections 97, 97A and 101 of the Evidence Act 1995 (NSW).
  • Applications to adduce new expert evidence on appeal face a high bar: the Court of Criminal Appeal confirmed that evidence that could have been obtained at trial will be treated as "new" rather than "fresh," and will be refused unless it raises a reasonable doubt about guilt.
  • A jury direction indicating that further directions would be given if jurors could not reach unanimous verdicts on some counts does not of itself constitute an impermissible majority direction or place undue pressure on individual jurors.
  • In unreasonable verdict grounds, a complainant's inability to specify the timing of repeated sexual assaults does not necessarily require rejection of the complainant's evidence, particularly where the jury has had the sustained opportunity to assess credibility and all inconsistencies were fully tested in cross-examination.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 66C
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Criminal Procedure Act 1986 (NSW) ss 161A, 293A
- Evidence Act 1995 (NSW) ss 76, 97, 97A, 100, 101, 190
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
- Evidence Regulation 2020 (NSW) cl 5

Cases:
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Lee v R [2023] NSWCCA 203; (2023) 310 A Crim R 170
- Adanguidi v R [2024] NSWCCA 82
- Davis v R [2024] NSWCCA 120
- Ferguson v R [2024] NSWCCA 81
- DP v R [2025] NSWCCA 45
- Lawavou v R [2025] NSWCCA 35
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- *Isika v