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Court of Criminal Appeal 6 July 2026

Kabbout v R

[2026] NSWCCA 100

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT AGGRAVATED SEXUAL ASSAULT IN COMPANY JOINT CRIMINAL ENTERPRISE

Citation: Kabbout v R [2026] NSWCCA 100
Court: Court of Criminal Appeal, NSW
Date: 6 July 2026
Judge(s): Kirk JA at [1]; Yehia J at [2]; Sirtes J at [99]

Background

The applicant was tried alongside three co-accused in the District Court before Flannery SC DCJ, on six counts of aggravated sexual assault in company against a single complainant. The Crown's case was not that the applicant himself had sexual intercourse with the complainant. Instead, the Crown alleged that the applicant participated in a joint criminal enterprise by being present and intentionally assisting and encouraging his co-accused to commit the offences.

The jury found the applicant guilty of four counts, each involving offending said to have occurred in the company of two particular co-accused. The jury acquitted him of two further counts of the same offence, which were alleged to have been committed in the company of a third co-accused. On 1 November 2024, the applicant was sentenced to an aggregate term of six years and six months' imprisonment, with a non-parole period of three years and three months.

The applicant sought leave to appeal out of time, relying on a single ground: that the jury's guilty verdicts were unreasonable. The notice of appeal was filed approximately two months after the applicable deadline, prompting an ancillary application for an extension of time.

  • Whether the extension of time for filing the notice of appeal should be granted
  • Whether proof of "directorial acts" (conduct directing or orchestrating others) was an essential element the Crown had to establish to prove the existence of a joint criminal enterprise, or to prove the applicant was "in company"
  • Whether, on the evidence as a whole, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt
  • Whether inconsistencies in the complainant's evidence, details she gave beyond her police statement, and aspects of her internet search history rendered the verdicts unreasonable
  • Whether the jury's acquittals on two counts necessarily meant the jury had doubts about the complainant's credibility, making the guilty verdicts on the remaining four counts unreasonable

Decision

Extension of time: The Court granted the extension. Yehia J applied the established principle that the discretion under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is wide and is exercised by reference to the interests of justice. The explanation given in the solicitor's affidavit, including the time required to obtain transcripts and exhibits and to coordinate with appeals by co-accused, was accepted as sufficient.

"Directorial acts" as an essential element: The applicant argued that the Crown, in its opening address, had identified "directorial acts" as part of its case and was therefore required to prove them to establish the joint criminal enterprise and the "in company" element. The Court rejected this. Yehia J found that the Crown had never identified directorial acts as essential particulars of its case, nor was the case left to the jury on that basis. The trial judge's summing-up referred to directorial acts as one of several matters the jury could consider, and no direction was sought at trial that they were indispensable. Proof of directorial acts was not legally necessary to establish either the joint criminal enterprise or the "in company" element of the offence.

Reasonableness of the verdicts and the complainant's evidence: Applying Pell v The Queen (2020) 268 CLR 123 and The King v ZT (2025) 281 CLR 137, the Court conducted its own independent assessment of the evidence. Yehia J found the Crown case was reasonably strong and that, on the assumption the jury accepted the complainant as credible and reliable, the evidence was capable of compelling a finding of guilt beyond reasonable doubt. The jury held significant advantages over the Court of Criminal Appeal, including the benefit of seeing and hearing the complainant and the applicant give evidence, and of watching and listening to a video recording. Kirk JA, who also reviewed that video, independently reached the same conclusion.

Inconsistencies and the partial acquittals: The Court acknowledged that the complainant's evidence contained inconsistencies and additional details beyond what she had told police and complaint witnesses, and that aspects of her internet search history were also raised. However, Yehia J found these were matters for the jury, which had the advantage of assessing her evidence as a whole, including her demeanour. The complaint evidence was largely consistent with her account, and the inconsistencies were explainable. As to the acquittals on two counts, the Court held it was not possible to identify which path of reasoning the jury had taken. Following Abdallah v R [2019] NSWCCA 294, those acquittals did not compel any conclusion that the jury harboured doubts about the complainant's credibility. The verdicts on the four guilty counts were not unreasonable.

Orders Made

  • Time for filing the applicant's notice of appeal extended to 20 January 2026
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that "directorial acts" described in a Crown opening address do not become essential particulars requiring proof unless the Crown positively identifies them as such and the case is left to the jury on that basis.
  • A joint criminal enterprise and the "in company" element of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW) can be established without proof of directorial acts by the participant alleged to have assisted and encouraged the principal offenders.
  • Partial acquittals on some counts do not automatically undermine guilty verdicts on other counts involving the same complainant. Because verdicts are incontrovertible and the jury's path of reasoning cannot be identified, acquittals do not compel a conclusion that the jury doubted the complainant's overall credibility.
  • Under Pell v The Queen and The King v ZT, the Court of Criminal Appeal must conduct its own independent assessment of the evidence, while giving appropriate weight to the significant advantages a jury holds, including assessment of witness demeanour over the course of a full trial.
  • Inconsistencies in a complainant's evidence, and details that emerged at trial beyond what was given to police, are matters for the jury to weigh when assessing credibility; they do not necessarily render a verdict unreasonable where the jury had the full benefit of observing the witness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 91P
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), s 293A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1(3), 3.5(2)(a), 3.5(5)

Cases
- Abdallah v R [2019] NSWCCA 294
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Jha v The King [2026] NSWCCA 55
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- ZT v R [2025] NSWCCA 193