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Court of Criminal Appeal 21 August 2026

Acopian v R

[2026] NSWCCA 127

Sexual offences

Citation: Acopian v R [2026] NSWCCA 127
Court: Court of Criminal Appeal, NSW
Date: 21 August 2026
Judge(s): Stern JA; Rigg J; Emmett J

Background

The applicant was convicted by a jury on 13 March 2025 of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Both offences occurred on 31 August 2022 and involved the same complainant. The applicant and complainant had met via a hookup app and had engaged in consensual sexual intercourse on three earlier occasions, including activities described as "consensual non-consensual sex," with a traffic light safe-word system in place.

The complainant's evidence was that, shortly after arriving at the applicant's unit on 31 August 2022, she told the applicant she thought she should leave. She alleged he then digitally penetrated her and had penile-vaginal intercourse with her without consent, despite her repeatedly saying "red," the agreed word to stop.

In August and September 2023, the complainant attended Bankstown Police Station and, pursuant to a warrant, recorded two telephone calls with the applicant (known as pretext calls). During the second call, both parties appeared sexually aroused. The applicant made statements that the Crown characterised as admissions corroborating the complainant's account of what occurred on 31 August 2022. The applicant sought to exclude this second pretext call at a pre-trial hearing, but the trial judge declined to do so. The applicant then sought leave to appeal his conviction on four grounds.

  • Whether the trial judge erred in admitting the second pretext call in evidence, specifically by declining to exclude it under ss 90 and 137 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in failing to direct the jury on how it was not permitted to use evidence of "rape fantasy" (i.e., to guard against tendency reasoning)
  • Whether the trial judge erred in his directions concerning the drawing of adverse inferences from the applicant's admissions
  • Whether the jury's guilty verdicts were unreasonable

Decision

Ground 1: Admission of the second pretext call

The Court confirmed that the correctness standard of appellate review applies where the question under s 90 of the Evidence Act is whether using an admission would be unfair. The Court held that the trial judge did not err in refusing to exclude the second pretext call under either s 90 or s 137.

On the s 90 question, the Court identified five reasons supporting the trial judge's conclusion. The reliability of the admissions was not established to be absent; rather, the jury faced a genuine question about whether the statements constituted admissions of non-consensual intercourse or were no more than rape fantasy. The evidentiary context gave the jury a fair basis to evaluate the admissions. The concepts involved, including consensual non-consensual sex, were ones jurors could reasonably understand and assess without prejudice. Admission of the evidence did not create an unfair burden on the applicant simply because it called for an explanation, and no impropriety or unacceptable conduct in the manner the admissions were obtained was established.

On the s 137 question, the Court held that if the jury accepted the applicant was admitting to continuing intercourse after the complainant said "red," that evidence strongly corroborated her account. No significant unfair prejudice to the applicant from its admission was established.

Ground 2: Failure to direct the jury on tendency reasoning

The Court held the trial judge made no error in not giving a direction that the second pretext call could not be used to support tendency reasoning. There was no realistic possibility that the jury used that evidence in such a way. Leave was refused on this ground.

Ground 3: Directions on adverse inferences from admissions

The Court held the trial judge's directions were adequate. Read as a whole, the directions made plain to the jury that the admissions should not be used against the applicant if an alternative explanation for the statements was accepted. The directions did not deflect the jury from its task of deciding whether the prosecution had proved the elements of the offences beyond reasonable doubt. The Court also confirmed that where an admission is relied upon as corroboration rather than as an independent basis for conviction, it does not need to be proved beyond reasonable doubt, provided the jury is directed to consider alternative explanations. Leave was refused on this ground.

Ground 4: Unreasonable verdicts

The Court found no reasonable doubt as to the applicant's guilt having regard to the quality and sufficiency of the evidence as a whole. Any residual doubt was resolved by the advantage the jury held over the appellate court in having seen and heard both the complainant and the applicant give evidence directly.

Rigg J (with Emmett J agreeing) added observations about additional evidence supporting the Crown case, the adequacy of the contextual evidence available to the jury when assessing the admissions, and the absence of any evidentiary vacuum regarding the complainant's own sexual interest in the applicant.

Orders Made

  • Leave refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) on grounds 2 and 3
  • Leave granted on grounds 1 and 4
  • Appeal dismissed

Key Takeaways

  • The correctness standard of appellate review applies when a court considers under s 90 of the Evidence Act 1995 (NSW) whether using an admission would be unfair to an accused, rather than the House v The King (1936) error or discretion standard.
  • Admissions arising from police-authorised pretext calls will not automatically be excluded under s 90 as unfair; the court must assess the reliability of the evidence, the availability of contextual evidence to assist the jury, and whether the manner in which the admissions were obtained was improper.
  • Where an admission is used as corroboration of other evidence rather than as a standalone basis for conviction, it does not need to be proved beyond reasonable doubt, but the jury must be directed to consider any alternative explanations offered by the accused.
  • No error arose from the trial judge's refusal to give a specific anti-tendency direction in respect of the pretext call where there was no realistic risk the jury would use the evidence in that way.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal applied the established principle that any residual doubt may be resolved in light of the jury's advantage in directly assessing the demeanour and credibility of witnesses.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW), s 294CB
- Evidence Act 1995 (NSW), ss 90, 85(2), 137
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Surveillance Devices Act 2007 (NSW), s 19

Cases
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21
- Carr v R [2026] NSWCCA 5
- CC v The Queen [2010] NSWCCA 337
- Choudhary v Director of Public Prosecutions [2013] VSCA 325
- Cotic v The Queen [2000] WASCA 414; (2000) 118 A Crim R 393
- Crane v R [2025] NSWCCA 93
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- de Virgilio v The King [2026] SASCA 16
- Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Fantakis v R [2023] NSWCCA 3
- Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26
- Haines v R [2018] NSWCCA 269
- Hewitt v R [2021] NSWCCA 227
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Magill v The Queen (2013) 42 VR 616; [2013] VSCA 259
- MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
- Medich v R [2021] NSWCCA 36
- Mehrdad v The King [2026] VSCA 52
- MIH v R [2007] NSWCCA 199
- Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
- Moore (a pseudonym) v The King (2024) 282 CLR 460; [2024] HCA 30
- Munshizada v R [2025] NSWCCA 172
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
- R v Cavalli [2010] QCA 343; (2010) 206 A Crim R 306
- R v Cook [2004] NSWCCA 52
- R v D’Orta-Ekenaike [1998] 2 VR 140
- R v DRF [2015] NSWCCA 181; (2015) 263 A Crim R 573
- R v Green (2002) 4 VR 471; [2002] VSCA 34
- R v Koeleman (2000) 2 VR 20; [2000] VSCA 141
- R v Lee (1950) 82 CLR 133
- R v Ljubicic [2017] NSWCCA 283
- R v Nelson [2004] NSWCCA 231; (2004) 41 MVR 10
- R v Perera [1986] 1 Qd R 211
- R v Robertson [1998] 4 VR 30
- R v Russo (No 2) [2006] VSCA 297
- R v Ryan [2013] NSWCCA 316
- R v Swaffield (1998) 192 CLR 159; [1998] HCA 1
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- R v ZT (2025) 281 CLR 137; [2025] HCA 9
- Radburn (a pseudonym) v R [2025] NSWCCA 125
- Riley v R [2011] NSWCCA 238
- Small v Western Australia [2023] WASCA 179
- Smith (a pseudonym) v R [2025] NSWCCA 145
- Sulaeman v R [2013] NSWCCA 283
- Walford v McKinney [1997] 2 VR 353
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28