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Court of Criminal Appeal 12 October 2026

RB v R

[2026] NSWCCA 162

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT NO ISSUE OF PRINCIPLE SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: RB v R [2026] NSWCCA 162
Court: Court of Criminal Appeal
Date: 12 October 2026
Judge(s): Stern JA at [1]; Fagan J at [106]; Chen J at [112]

Background

Following a jury trial in October and November 2024, the applicant was convicted of eight counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offending involved three complainants and spanned events occurring between August 2015 and January 2018. The applicant was sentenced to an aggregate term of seven years' imprisonment with a non-parole period of four years and three months.

The Crown case rested primarily on the complainants' evidence, supported by complaint evidence, objective documentation, and tendency evidence. The tendency evidence established that the applicant had a pattern of seeking sexual intercourse with teenage girls without their consent through persistence, pressure, or coercion. No challenge was made to the trial judge's summing up or directions.

The applicant sought leave to appeal on the sole ground that all eight verdicts were unreasonable and could not be supported by the evidence. The Crown did not oppose an extension of time for filing the notice of appeal, which the Court granted.

Legal Issues

  • Whether the jury's verdicts on all eight counts of sexual intercourse without consent were unreasonable or could not be supported having regard to the evidence as a whole, applying the principles in M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, and Dansie v The Queen (2022) 274 CLR 651.

Decision

The applicable legal standard

The Court applied the well-established test requiring it to independently assess the whole of the evidence to determine whether the jury ought to have entertained a reasonable doubt as to the applicant's guilt. The Court proceeded on the premise that the jury accepted each complainant's account, reconciled apparent inconsistencies, and rejected the applicant's account where he denied non-consent or denied that the sexual acts occurred (at [14]). All three judges conducted independent reviews of the trial record and reached the same conclusion.

Counts 1 to 5: Offending against TK

The applicant's primary submission was that TK's history of willing and enthusiastic participation in sexual activity during the relationship, her affectionate text messages, her expressions of love for the applicant, and the absence of contemporaneous complaints made the verdicts unreasonable. The Court rejected each of these arguments. Sexual enthusiasm on some occasions is not inconsistent with an absence of consent on other occasions, and the jury was entitled to reconcile TK's positive messages with her account of five specific non-consensual acts (at [31]). The Court also noted that TK's evidence provided important context, including that she had understood the applicant's expectations of her as his girlfriend and had only recognised, with hindsight, that the relationship involved manipulation and emotional abuse (at [40]). Delay in reporting sexual assault is not uncommon and did not undermine TK's credibility (at [46]). None of the seven matters raised by the applicant, individually or cumulatively, created a reasonable doubt (at [47], [48]).

Count 6: Offending against MH

The applicant denied attending MH's home on 1 February 2017 and relied on alibi evidence placing him at a worksite and then a martial arts studio he ran with his family. The Court identified significant inconsistencies in the alibi evidence, including irreconcilable conflicts between the applicant's own account, his mother's account, his father's account, and the telephone records (at [68], [69]). Senior counsel for the applicant conceded in oral argument that even the alibi evidence, if accepted, permitted an opportunity for the offending to have occurred (at [71]). MH's account was supported by near-contemporaneous text messages to a friend and complaint evidence from multiple witnesses (at [72]). The jury's verdict on count 6 was reasonably open (at [72]).

Counts 7 and 8: Offending against BR

The applicant denied seeing BR on 19 January 2018 and relied on alibi evidence of a family outing to search for a lost engagement ring. The Court found multiple inconsistencies in the alibi evidence, including contradictions between the applicant's account and those of his mother and father, and telephone records that were difficult to reconcile with the account that he was with his mother throughout the morning (at [94]-[97]). BR's account of being pulled into the back seat of the ute, held down by her wrists, and subjected to digital and penile penetration while she repeatedly said no was supported by substantial objective evidence: her opal card records confirmed her movements, her phone records showed a call to the tattoo parlour, and chemist records confirmed her purchase of the plan B contraceptive pill (at [80]-[84]). The verdicts on counts 7 and 8 were reasonably open (at [104]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sexual enthusiasm or willing participation in sexual activity on some occasions within a relationship is not inconsistent with an absence of consent on other specific occasions, and that a jury acts rationally in accepting such a distinction (at [31], [110]).

  • In dismissing the appeal across all eight counts, the Court applied the principle that delay in reporting sexual assault is not uncommon and does not necessarily cast doubt on a complainant's reliability, particularly where there is a plausible explanation for the delay such as the complainant's age or desire to maintain the appearance of a healthy relationship (at [46]).

  • Tendency evidence of a pattern of seeking sexual intercourse with teenage girls through persistence, pressure, or coercion provided additional support, alongside direct complainant evidence and complaint evidence, for the jury's conclusions on each count (at [3], [48], [72], [104]).

  • Where alibi evidence is internally inconsistent and contradicted by telephone records and other objective material, a jury acts rationally in rejecting that alibi beyond reasonable doubt, even where some of the inconsistencies arise between accounts given by the accused's own family members (at [94]-[97], [111]).

  • Substantial objective evidence, including public transport records, phone records, and retail transaction records, can provide powerful corroboration of a complainant's account of the timing and circumstances of alleged sexual offending (at [80]-[84]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 10(1)(a)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(b)

Cases
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Davis v R [2024] NSWCCA 120
- Ferguson v R [2024] NSWCCA 81
- Harper v R [2022] NSWCCA 211
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Penney v The Queen [1998] HCA 51; (1998) 72 ALJR 1316
- Smith v R [2025] NSWCCA 104
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9