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Court of Criminal Appeal 12 October 2026

GR v R

[2026] NSWCCA 159

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE WHETHER TO APPLY PROVISO

Citation: GR v R [2026] NSWCCA 159
Court: Court of Criminal Appeal
Date: 12 October 2026
Judge(s): Free JA at [1]; Rigg J at [2]; Sirtes J at [183]

Background

The applicant stood trial in the District Court at Grafton on 18 counts of sexual offending against two stepdaughters, referred to as Sienna and Cara, alleged to have occurred between 2004 and 2009. A jury convicted him of five counts and he was sentenced to an aggregate term of 24 years imprisonment with a non-parole period of 15 years.

A first trial had been aborted after one day of evidence, when the applicant's biological daughter Katie gave evidence of being sexually assaulted but could not identify the perpetrator. The prosecution terminated the counts relating to Katie and the jury was discharged. Katie did not appear as a witness in the second trial.

During the second trial, three witnesses gave evidence that inadvertently suggested the applicant had sexually offended against Katie. Defence counsel applied to discharge the jury, but the trial judge refused. The applicant sought leave to appeal his convictions on the ground that the refusal to discharge occasioned a miscarriage of justice.

Legal Issues

  • Whether the trial judge's refusal to discharge the jury, following three witnesses giving evidence that implicitly implicated the applicant in sexual offending against a third person not before the court, produced a miscarriage of justice.
  • Whether the miscarriage test applicable to a conviction appeal differs from the "substantial miscarriage of justice" threshold used for interlocutory discharge decisions under the Jury Act.
  • Whether, if a miscarriage was established, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) could be applied to dismiss the appeal on the basis that no substantial miscarriage of justice had actually occurred.

Decision

The three impugned passages and the discharge application

Three witnesses gave evidence touching on Katie during the trial. First, Sienna stated that she had "found out things had happened to her sisters." Second, the complaint witness NH referred to "sisters" in the plural when discussing Sienna's disclosure. Third, the complainants' mother Helena named Katie directly when recounting a conversation with Sienna about whether the applicant had touched her. The trial judge struck out two of the passages and directed the jury to ignore them, but found no direction was necessary for NH's reference, characterising all three as innocuous and lacking any obvious sexual connotation. The discharge application was refused.

Whether a miscarriage of justice was established

The Court of Criminal Appeal accepted that the standard for a miscarriage is whether the error or irregularity could realistically have affected the jury's reasoning to a verdict of guilty, as confirmed in Brawn v The King (at [45]). The Court rejected the trial judge's characterisation of the passages as innocuous. It found the risk was very high that the jury understood from one or more of the three passages that Katie had been sexually abused by the applicant, or that she had alleged the same (at [101]-[103]). The Court noted that the jury had also been given exhibit 5, which contained text messages from Sienna to the applicant referring to her "little sisters" and to damage done to them, and this was received before any of the three impugned passages were given. That context, of which the trial judge was not informed on the discharge application, amplified the likelihood of the jury attributing a sexual meaning to the three exchanges (at [99]).

The Court confirmed that, once the real risk of a sexual connotation being drawn was accepted, the capacity for ameliorative direction was unrealistic (at [104]). It held the inadmissible evidence was more prejudicial than the evidence considered in Crofts v The Queen, because the impugned passages implicated the applicant in sexual abuse of his own biological daughter rather than simply alleging further instances of the same conduct against the existing complainant (at [106]-[113]). The credibility of the complainants and the applicant were central, and a juror who understood that the applicant had abused Katie might not have been aware that this perception was affecting their assessment of the evidence before them (at [119]-[120]).

The Court also clarified several principles relevant to discharge applications. The applicable standard for refusal is not the "substantial miscarriage of justice" threshold found in s 53C of the Jury Act, which applies only after an individual juror is discharged. The necessity test drawn from Crofts means no more than doing what is required to ensure a fair trial (at [64]-[67]). Deliberateness of the problematic conduct is rarely material in assessing whether a miscarriage has occurred from inadvertently adduced prosecution evidence, and the stage of the trial does not impose a heavier burden in favour of continuing the longer the trial has run (at [82]-[83]).

The proviso

The Crown sought to invoke the proviso, contending that the Court could independently be satisfied beyond reasonable doubt of the applicant's guilt on the basis of the complainants' unshaken evidence, their accounts of early-morning assaults consistent with the applicant being a known early riser, Cara's rearrangement of bedroom furniture, and the text messages exchanged with each complainant in November 2019. The Court declined to apply the proviso. The trial turned centrally on whether the jury accepted the complainants' accounts and rejected the applicant's denials. The applicant gave evidence for over a day, providing alternative explanations for the text messages by reference to his history of heavy alcohol consumption and events surrounding a debt dispute. A jury observing him give evidence would have a considerable advantage over an appellate court proceeding on the record in assessing those explanations (at [176]-[180]). The Court could not conclude beyond reasonable doubt that the applicant was guilty of each charge, and thus could not conclude that no substantial miscarriage of justice had actually occurred (at [181]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions quashed.
  • Retrial ordered.
  • Matter listed for mention in the District Court at 9:30 am on 16 October 2026.

Key Takeaways

  • A miscarriage of justice from a refusal to discharge the jury is established where the impugned evidence could realistically have affected the jury's reasoning to a guilty verdict. The Court of Criminal Appeal confirmed this is not an onerous burden and is distinct from the higher "substantial miscarriage of justice" threshold that applies under s 53C of the Jury Act to decisions made after an individual juror has been discharged (at [45], [64]-[66]).

  • Where an appellate court characterises differently to the trial judge the likely meaning a jury would attribute to prejudicial evidence, the deference ordinarily owed to the trial judge's view about the capacity of directions to cure the prejudice is necessarily reduced (at [92], [103]-[104]).

  • Evidence in an exhibit that was properly before the jury throughout the trial formed part of the relevant context for assessing the risk that the jury attributed a sexual connotation to impugned passages, even though that evidence was not drawn to the trial judge's attention on the discharge application (at [99]).

  • The stage at which a prejudicial incident occurs does not, as a general principle, impose a heavier burden in favour of continuing the trial the further it has progressed. Regardless of how far a trial has advanced, the jury should be discharged if that is necessary to ensure a fair trial and avoid a conviction that would amount to a miscarriage of justice (at [83]).

  • Where a conviction appeal turns on contested credibility and the miscarriage of justice may have affected the jury's assessment of the witnesses' credibility, the proviso is unavailable even where the complainants gave clear and unshaken evidence. An appellate court proceeding on the record cannot replicate the advantage a jury has in observing witnesses give evidence, and cannot substitute its own assessment of contested credibility for that of the jury (at [159]-[181]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61J, 66C, 66EA, 578A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 101, 137
- Jury Act 1997 (NSW), s 53C

Cases
- Alex v R [2026] NSWCCA 121
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Dawson v R [2024] NSWCCA 98
- DP v R [2025] NSWCCA 45
- Dries v R [2022] NSWCCA 33
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Engstrom v R [2026] NSWCCA 30
- Evans v R [2024] NSWCCA 245
- Gardiner v R [2026] NSWCCA 44
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Kibby v R [2024] NSWCCA 207
- Kumar v R [2025] NSWCCA 119
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- Maric v The Queen (1978) 52 ALJR 631; (1978) 20 ALR 513
- MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
- Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398
- Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486
- Moore (a pseudonym) v R (2024) 282 CLR 460; [2024] HCA 30
- Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Ahola (No 6) [2013] NSWSC 703
- R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1
- R v Rogerson; R v McNamara (No 34) [2016] NSWSC 259
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
- The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39
- Watson v R [2022] NSWCCA 208
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241
- Wilson v R [2019] NSWCCA 38
- Winsor v R (1866) LR 1 QB 390
- Younan v R [2016] NSWCCA 248; (2016) 316 FLR 122