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Court of Criminal Appeal 25 February 2026

AA v R

[2026] NSWCCA 10

Sexual offencesPublic order & justice offences

Citation: AA v R [2026] NSWCCA 10
Court: Court of Criminal Appeal (New South Wales)
Date: 25 February 2026
Judge(s): Adamson JA (primary judgment at [1]); McNaughton J (agreeing at [168]); Muston J (agreeing at [169])

Background

The applicant, AA, was convicted by a District Court jury of one count of sexual touching without consent and two counts of sexual intercourse without consent. The offences were alleged to have occurred on 23 August 2022, at a time when the applicant and the complainant had been married for approximately 13 years and had four children together.

At trial, the applicant did not give evidence. The prosecution case rested primarily on the evidence of the complainant, her sister, and three investigating police officers. Defence counsel cross-examined the complainant extensively, putting to her a version of events that suggested the sexual activity was consensual. The trial concluded on 23 May 2024 with guilty verdicts on all counts. The applicant was sentenced to an aggregate term of 5 years and 10 months' imprisonment, with a non-parole period of 4 years.

The applicant sought leave to appeal his convictions on a single ground: that a miscarriage of justice occurred because his trial counsel failed to adequately advise him about whether he should give evidence. Critically, the applicant did not contend he was unaware of his right to give evidence. Rather, his complaint was that the advice he received was incomplete (failing to highlight the advantages of giving evidence and disadvantages of not doing so) and incorrect (he should have been advised to give evidence).

  • Whether the applicant was "adequately or properly advised" by defence counsel as to whether he should give evidence at trial.
  • Whether defence counsel was required to explain to the applicant all the potential advantages of giving evidence (such as entitlement to a Liberato direction) and disadvantages of remaining silent.
  • Whether the applicant was deprived of a chance of acquittal that was "fairly open" as a result of not giving evidence.
  • Whether the applicant had established that, if properly advised, he would have chosen to give evidence — a necessary precondition for a finding that the trial was conducted differently and a miscarriage of justice occurred.

Decision

The Court of Criminal Appeal (Adamson JA, with McNaughton J and Muston J agreeing) granted leave to appeal on the basis that the questions raised were of sufficient importance, but ultimately dismissed the appeal on its merits.

The applicant failed to establish that he would have given evidence if differently advised. Applying the principles from Craig v The Queen (2018) 264 CLR 202, the Court held that the evidence did not establish that the applicant would have chosen to give evidence had he received supposedly "correct" advice. Adamson JA noted the absence of express evidence from the applicant that he would have made that choice — evidence about which he could have been cross-examined. Without demonstrating that the trial would have been conducted differently, the appeal could not succeed on that basis alone.

Defence counsel's advice was adequate in the circumstances. The Court heard evidence from the applicant, his defence counsel, and his two solicitors. Defence counsel gave evidence explaining her reasons for advising against giving evidence: she assessed a substantial risk that prejudicial material not tendered in the prosecution case could be admitted if the applicant testified; she considered, based on her conferences with him throughout the prosecution case, that he would not be an impressive witness; and she believed there was a realistic prospect the jury might not accept the complainant's evidence beyond reasonable doubt, resulting in acquittal without any defence case being called. The Court found that counsel was not required to explain to the applicant every consideration in her mind, nor was she obliged to inform him of a potential advantage — such as the right to a Liberato direction — that she reasonably considered would be of negligible practical value.

No deprivation of a fairly open chance of acquittal. The Court found there had been adequate discussion and opportunity for the applicant to make his decision. It could not be said that, unless the applicant gave evidence, conviction was inevitable. The decision not to give evidence did not deprive the applicant of a chance of acquittal that was fairly open. The Court accordingly concluded that no miscarriage of justice had occurred.

Orders Made

  • Leave to appeal granted.
  • Appeal against conviction dismissed.
  • No challenge to sentence; the sentence remained undisturbed.

Key Takeaways

  • Under the principles established in Craig v The Queen (2018) 264 CLR 202, an applicant alleging miscarriage of justice based on counsel's advice about giving evidence must positively establish that they would have chosen to give evidence if advised differently; the Court of Criminal Appeal found that the absence of direct evidence on this point, particularly evidence capable of being tested in cross-examination, was fatal to the ground of appeal.

  • Defence counsel is not required to exhaustively enumerate every pro and con when advising a client not to give evidence; a considered forensic judgment informed by an assessment of the client's likely performance as a witness and the risks of adducing prejudicial material can constitute adequate advice even without taking the client through each underlying consideration.

  • No error was established in counsel's failure to raise a potential entitlement to a Liberato direction, as the Court of Criminal Appeal accepted that where counsel reasonably considers such a direction would be of negligible practical benefit in the circumstances, omitting to mention it does not render the advice inadequate.

  • Establishing a miscarriage of justice in this context requires the applicant to show deprivation of a chance of acquittal that was "fairly open"; it is not enough to show that a different forensic choice was available, as the applicant must demonstrate the choice not made would have provided a realistic pathway to acquittal.

  • In granting leave to appeal on the basis that the legal questions raised were of sufficient importance, while ultimately dismissing the appeal on its merits, the Court of Criminal Appeal illustrated the distinction between the threshold for granting leave and the threshold for success on appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hanna v R [2022] NSWCCA 7
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- R v ND [2004] 2 Qd R 307; [2003] QCA 505
- R v NE [2004] 2 Qd R 328; [2003] QCA 574
- R v Szabo [2001] 2 Qd R 214; [2000] QCA 194
- Sankar v State of Trinidad and Tobago [1995] 1 WLR 194
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Van Zwam v R [2017] NSWCCA 127
- White v R [2018] NSWCCA 1