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Court of Criminal Appeal 21 August 2026

NR v R

[2026] NSWCCA 126

Sexual offences

Citation: NR v R [2026] NSWCCA 126
Court: Court of Criminal Appeal
Date: 21 August 2026
Judge(s): Mitchelmore JA at [1]; Rigg J at [161]; Muston J at [162]

Background

The applicant was tried in the District Court before Fitzsimmons SC DCJ sitting with a jury on ten counts of sexual intercourse without consent and one count of indecent assault under now-repealed provisions of the Crimes Act 1900 (NSW). The offences involved a single complainant and were alleged to have occurred across four separate incidents between December 1986 and December 1987, when the complainant was approximately 14 years old. The applicant was married to the complainant's older sister at the time of the alleged conduct.

The jury found the applicant guilty on counts 1 to 3 (the December 1986 Bankstown incidents), not guilty on counts 10 and 11, and was unable to reach a verdict on counts 4 to 9. A subsequent judge-alone trial on the remaining counts resulted in acquittals. The applicant was sentenced on the three guilty counts to an aggregate term of 4 years 6 months' imprisonment with a non-parole period of 2 years 11 months.

The applicant sought leave to appeal against his convictions on counts 1 to 3 on two grounds: that the trial judge's interventions during his evidence were excessive and caused a miscarriage of justice, and that the guilty verdicts were unreasonable or unsupported by the evidence.

  • Whether the trial judge's interventions during the applicant's cross-examination were excessive and, in the context of the whole trial, created a real danger of unfairness amounting to a miscarriage of justice
  • Whether the guilty verdicts on counts 1, 2 and 3 were unreasonable or could not be supported having regard to the evidence, including whether the Crown had excluded a reasonable possibility that the applicant's account was true

Decision

Ground 1: Judicial interventions

The Court confirmed that the determinative question is whether judicial interventions created a real danger that the trial was unfair, assessed by reference to the number, length, terms, and circumstances of the interventions in the context of the whole trial. In this case, the Court also listened to audio recordings of the relevant passages of evidence, which both parties relied upon.

The Court identified three particular interventions during the applicant's cross-examination that exceeded the proper role of a trial judge sitting with a jury, particularly questions directed at the extent of the applicant's recollection of specific matters. Muston J, in additional reasons, described these interventions as having come "perilously close" to creating an unfair trial, noting that they directly probed the reliability of the applicant's evidence in circumstances where the jury's assessment of his credibility was central to the trial's outcome, given the largely uncorroborated nature of the competing accounts.

Ultimately, however, the Court concluded that the interventions did not cross the threshold. The most problematic questions related to peripheral matters more closely connected to the counts on which the applicant was acquitted or on which the jury could not agree. The tone of the interventions did not disclose hostility or incredulity. Considered in the context of the entire, lengthy cross-examination, the interventions did not produce a miscarriage of justice. Muston J acknowledged that the matter was "finely balanced" but agreed the ground was not made out.

Ground 2: Unreasonable verdict

The applicant argued that the Crown had failed to exclude a reasonable possibility that his account, as given in evidence and in a pretext telephone call, might be true. The Court noted that resolving conflicting testimony is a standard feature of criminal trials, and that the jury held a clear advantage in assessing the credibility and reliability of the applicant and the complainant through direct observation of their evidence.

The Court found that the matters raised by the applicant, considered both individually and cumulatively, did not establish that the jury could not have been satisfied of his guilt beyond reasonable doubt on counts 1, 2 and 3. The verdicts were not unreasonable.

Orders Made

• The applicant is granted leave to appeal against his convictions on grounds 1 and 2.
• The appeal is dismissed.

Key Takeaways

  • The governing test for judicial intervention grounds is whether the interventions created a real danger the trial was unfair, determined by reference to the number, length, terms, and circumstances of the interventions in the context of the whole trial, not by isolating individual exchanges.
  • Three specific interventions by the trial judge were found to have exceeded the proper judicial role and to have come uncomfortably close to producing unfairness, particularly because they probed the reliability of the accused's evidence in a trial that turned almost entirely on competing credibility assessments.
  • Despite those problematic interventions, the Court of Criminal Appeal held the interventions fell short of the miscarriage threshold because they concerned peripheral matters, were made without apparent hostility, and formed a small part of a lengthy cross-examination.
  • Where a conviction rests on contested testimony with little contemporaneous or objective evidence, an appellate court will still defer to the jury's advantage in assessing the tone and manner in which witnesses gave their evidence, consistent with the principles in M v The Queen and Pell v The Queen.
  • Leave to appeal was required on the judicial intervention ground both because it raised a mixed question of fact and law under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), and separately because trial counsel had not raised the complaint at trial, engaging r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1) (repealed) , 61E(1) (repealed)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Galea v Galea (1990) 19 NSWLR 263
- Lee v The King [2023] NSWCCA 203
- LS v The King [2024] NSWCCA 110
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Thompson [2002] NSWCCA 149; 130 A Crim R 24
- Smith v R [2025] NSWCCA 104
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9