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Court of Criminal Appeal 10 July 2026

BW v R

[2026] NSWCCA 104

Sexual offences

Citation: BW v R [2026] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 10 July 2026
Judge(s): Mitchelmore JA; Dhanji J; Emmett J

Background

The applicant was convicted by a District Court jury of nine counts of child sexual offences against three complainants. The offending spanned multiple occasions between 2010 and 2020 and involved complainants of varying ages. Charges included indecent assault, sexual intercourse with a person aged 14 to 16, maintaining an unlawful sexual relationship with a child, intentional sexual touching, and attempted sexual intercourse with a child in circumstances of aggravation. The trial judge joined all counts in a single indictment on the basis that the evidence on each count was admissible as tendency evidence with respect to the others.

On 19 December 2024, the trial judge sentenced the applicant to an aggregate term of 20 years' imprisonment with a non-parole period of 13 years and 6 months.

The applicant sought leave to appeal against both his convictions and his sentence. The conviction appeal challenged three verdicts as unreasonable, alleged a miscarriage flowing from defence counsel's failure to seek directed verdicts, and contended that the jury directions on tendency evidence were flawed.

  • Whether the guilty verdicts on counts 2, 3, and 5 were unreasonable or not supported by the evidence
  • Whether a miscarriage of justice arose from defence counsel's failure to seek a directed verdict on counts 2 and 3 at the close of the complainant's examination in chief
  • Whether the jury directions on tendency evidence occasioned a miscarriage of justice
  • Whether the aggregate sentence was manifestly excessive or rested on a factual finding not open on the evidence

Decision

Ground 1(a): Count 2 (indecent assault, age element)

Count 2 required proof beyond reasonable doubt that the complainant was under 16 at the time of the offending. The complainant's evidence in chief on her age at the relevant time was deficient, and her cross-examination evidence on this issue was not unequivocal. The Court found it was not satisfied beyond reasonable doubt that the complainant was under 16, and the marginal advantage held by the jury from observing the witness was insufficient to resolve that doubt. The verdict on count 2 was unreasonable.

Ground 1(b): Count 3 (indecent assault, acts alleged)

Count 3 alleged that the applicant touched the complainant's breasts and kissed her under her clothing. The complainant did not give evidence of the specific acts in examination in chief, acknowledged in cross-examination that she did not recall the events leading to intercourse on the relevant occasion, and by inference did not actually recall the conduct the subject of count 3 when she gave her evidence. The Court held it was not possible to be satisfied beyond reasonable doubt that the event occurred. Again, the jury's observational advantage could not resolve the doubt. The verdict on count 3 was also unreasonable.

Ground 1(c): Count 5 (sexual intercourse)

The Court reached a different conclusion on count 5. Despite some deficiencies in peripheral details, the complainant demonstrated a clear and specific recollection of the conduct alleged. It was open to the jury to convict on that count, and the verdict was not unreasonable.

Additional Ground: Failure to seek a directed verdict

Because the Court had already determined the verdicts on counts 2 and 3 were unreasonable and quashed them, it was unnecessary to consider whether trial counsel's failure to seek a directed verdict on those counts constituted a miscarriage of justice. This ground was left undetermined.

Ground 2: Tendency evidence directions

The directions given to the jury on tendency evidence did not conform precisely to the terms recommended by the High Court in DPP v Roder (a Pseudonym) (2024) 281 CLR 18. However, when the summing-up was read as a whole, the directions did not create a real risk that the jury would be deflected from its ultimate task. Both before and after the tendency directions, the trial judge emphasised that the jury needed to be satisfied of each element of each charge beyond reasonable doubt, and that a tendency alone could not establish guilt. The Court found no material miscarriage of justice on this ground.

Sentence appeal and resentencing

Having quashed two convictions, the Court re-sentenced the applicant on the remaining seven counts. It took account of the applicant's submissions on manifest excess in that exercise and declined to separately address the sentence grounds. The Court found special circumstances under the sentencing legislation and imposed an aggregate sentence of 16 years' imprisonment with a non-parole period of 11 years.

Orders Made

  • Leave to appeal against conviction and sentence granted
  • Appeal against convictions on counts 2 and 3 allowed
  • Convictions on counts 2 and 3 quashed; verdicts of acquittal entered in their place
  • Sentence imposed by the District Court on 19 December 2024 quashed
  • Applicant re-sentenced to an aggregate term of 16 years' imprisonment, commencing 3 August 2023 and expiring 2 August 2039, with a non-parole period of 11 years
  • Earliest parole eligibility date: 2 August 2034

Key Takeaways

  • A conviction for an age-specific child sexual offence requires proof beyond reasonable doubt of the complainant's age at the time of the conduct; deficient or equivocal evidence on that element alone can render a verdict unreasonable, even where the jury had the benefit of observing the witness.
  • Where a complainant's evidence fails to cover the specific acts alleged in a count, and cross-examination reveals the complainant did not actually recall those events, the jury's observational advantage over the appellate court cannot fill the evidentiary gap.
  • The Court of Criminal Appeal confirmed that tendency directions which depart from the Roder template will not automatically result in a quashed conviction; the summing-up must be assessed as a whole to determine whether there was a real risk the jury was diverted from the ultimate question of guilt.
  • Quashing convictions on appeal obliges the appellate court to re-sentence on the remaining counts, and submissions on manifest excess in the original sentence can be considered within that re-sentencing exercise rather than as standalone grounds.
  • Under the M v The Queen line of authority, the advantage a jury holds from seeing and hearing witnesses must be capable of actually resolving a reasonable doubt; a "slight" advantage is insufficient where the evidentiary deficiency is fundamental to a required element.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66C, 66DB, 66EA, 344A
- Crimes ( Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 60, 97, 97A, 101, 135, 136

Cases
- Burr v R [2020] NSWCCA 282; 285 A Crim R 504
- Director of Public Prosecutions v Roder (a Pseudonym) (2024) 281 CLR 18; [2024] HCA 15
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Harkin v R (1989) 38 A Crim R 296
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- JA v R [2024] NSWCCA 130
- JS v R [2022] NSWCCA 145
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Massaquoi v R [2024] NSWCCA 125
- MRW v R [2011] NSWCCA 260
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Carey [2024] NSWCCA 90
- R v Idaho (a Pseudonym) [2025] NSWDC 427
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TS [2017] NSWCCA 247
- R v Whyte [2006] NSWCCA 75
- Rassi v R [2023] NSWCCA 119
- Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- SS v R [2025] NSWCCA 153
- Stanton v The Queen [2003] HCA 29; 198 ALR 41
- The King v AR [2026] HCA 10; 100 ALJR 545
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- Turnbull v R [2019] NSWCCA 97
- Versi v R [2013] NSWCCA 206