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Court of Criminal Appeal 24 July 2026

Bhuller v R

[2026] NSWCCA 111

Sexual offencesAssault & violence

Citation: Bhuller v R [2026] NSWCCA 111
Court: Court of Criminal Appeal
Date: 24 July 2026
Judge(s): Payne JA (principal judgment); Dhanji J and Richardson J agreeing

Background

The appellant was tried in the District Court on an indictment containing 27 counts of alleged violent and sexual offending against his then-girlfriend ("EE") over a period of approximately six weeks in 2018. He pleaded guilty to five counts before trial. At the close of the Crown case, seven further counts were withdrawn by directed verdict. Of the remaining 15 counts, he was acquitted of four and convicted of eleven, receiving an aggregate sentence of 12 years and 10 months' imprisonment with a non-parole period of nine years.

The appellant sought leave to appeal against his eleven convictions out of time, raising a single ground: that his trial counsel was incompetent in a manner that caused a miscarriage of justice.

The principal witness at trial was EE, and the Crown also called the investigating officer, two constables, and two medical experts. The defence cross-examined EE extensively on inconsistencies in her various disclosures to police, ambulance officers, and hospital staff.

  • Whether trial counsel's alleged failure to investigate the matter gave rise to a miscarriage of justice.
  • Whether trial counsel's alleged failure to take proper instructions from the appellant gave rise to a miscarriage of justice.
  • Whether trial counsel's failure to conference the appellant's brother and adduce evidence from him by way of oral testimony (rather than affidavit) gave rise to a miscarriage of justice.

Decision

The governing legal test: The Court reaffirmed that where incompetence of counsel is alleged, the central question is not simply whether counsel made an error. The court must determine whether a miscarriage of justice occurred, meaning whether the appellant lost a chance of acquittal that was fairly open to him. That standard derives from a long line of authority including TKWJ v The Queen, Ali v The Queen, and, most recently, Brawn v The King [2025] HCA 20.

Ground 1(iii): Failure to conference and call the appellant's brother as a witness: Even assuming the brother's proposed evidence was admissible, the Court found it lacked the capacity to undermine EE's credibility or reliability. On the contrary, the proposed evidence was consistent with what EE had said. The Court further held that, had it been necessary to go further, it was a rational and available forensic decision for trial counsel to tender the brother's affidavit without calling him to give additional oral evidence. Rational forensic decisions do not give rise to a miscarriage of justice.

Ground 1(i) and (ii): Failure to investigate and failure to take proper instructions: The appellant's complaints about communication difficulties with his legal representatives lacked precision and were contradicted by contemporaneous documentary evidence. Specific complaints were each examined and rejected. The omission to cross-examine EE about a "threesome message" was appropriate because the primary judge had ruled that material irrelevant following pre-trial submissions under s 293 of the Criminal Procedure Act. Claims about Opal card data, bank statement records, and a pornographic video were similarly dismissed, with the Court finding the appellant had not demonstrated how that material would have assisted the defence. Separately, the appellant did not explain how proposed psychiatric evidence would have been admissible, let alone how it would have been capable of challenging EE's evidence.

The Court admitted all evidence led on the voir dire (a preliminary hearing held to test the admissibility of contested evidence) as potentially relevant to the appeal ground, and considered it on the merits before rejecting all grounds. The Court concluded that, viewed separately or together, the complaints did not demonstrate a miscarriage of justice and that the appellant had received a fair trial.

Orders Made

  • Leave to appeal granted out of time.
  • Evidence led on the voir dire admitted.
  • Appeal dismissed.

Key Takeaways

  • In appeals based on alleged incompetence of trial counsel, the critical test is not whether counsel made an error but whether the appellant lost a chance of acquittal that was fairly open: a miscarriage of justice must be demonstrated.
  • Rational forensic decisions by counsel, assessed objectively, do not constitute incompetence capable of vitiating a conviction, even where a different decision was available.
  • Where proposed "fresh" evidence from a new witness is consistent with the principal Crown witness's account, it cannot undermine that witness's credibility or reliability and therefore cannot support an incompetence ground.
  • Generalised or imprecise complaints about communication failures or non-provision of materials will not establish a miscarriage of justice where contemporaneous documents contradict those complaints.
  • No miscarriage of justice arises from a failure to cross-examine on material that the trial judge has already ruled irrelevant following formal pre-trial submissions on admissibility.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes Act 1900 (NSW), ss 33B, 37, 38, 59, 61, 61I, 61J, 86
- Criminal Appeal Act 1912 (NSW) , s 5(1)(b)
- Criminal Procedure Act 1986 (NSW) , ss 289F, 293, 294CB, 365

Cases
- Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
- Ali v The Queen [2005] HCA 8; 79 ALJR 662
- Alkhair v R [2016] NSWCCA 4
- Brawn v The King [2025] HCA 20; 99 ALJR 872
- GS v The Queen; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618 ; [2022] NSWCCA 65
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v HBZ [2020] QCA 73
- Smith (a pseudonym) v R [2025] NSWCCA 145
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Xie v R [2021] NSWCCA 1; 386 ALR 371