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Court of Criminal Appeal 26 October 2026

Large v R

[2026] NSWCCA 175

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION WHERE COUNSEL AT TRIAL DID NOT CROSS WHERE MISCARRIAGE NOT FOUND APPEAL AGAINST SENTENCE

Citation: Large v R [2026] NSWCCA 175
Court: Court of Criminal Appeal
Date: 26 October 2026
Judge(s): Stern JA, Fagan J, Dhanji J

Background

The applicant was convicted after a jury trial of two counts of sexual intercourse without consent and one count of assault occasioning actual bodily harm against his de facto partner. The offending occurred in the early hours of 3 February 2024 at the complainant's home. On sentence, an aggregate term of five years' imprisonment with a non-parole period of three years was imposed.

The applicant sought leave to appeal against both conviction and sentence. The conviction appeal turned on a single point: defence counsel's failure to cross-examine the complainant about an inconsistency between her evidence that she had not left the house that morning and objective records showing she had made a seven-minute taxi trip to a bottle shop (BWS) around 9:17 am. The sentence appeal concerned the sentencing judge's treatment of the applicant's acquired brain injury.

An extension of time for filing the notice of appeal (approximately one week late) was not opposed by the Crown and was granted.

Legal Issues

  • Whether defence counsel's failure to cross-examine the complainant about the bottle shop trip, and the consequent inability to submit to the jury that she had lied, constituted a material irregularity resulting in a miscarriage of justice.
  • Whether the rule in Browne v Dunn applies in criminal proceedings, and what consequences follow from non-compliance.
  • Whether the sentencing judge erred by failing to address whether the applicant's acquired brain injury reduced his moral culpability and diminished the weight to be given to general and specific deterrence.

Decision

Conviction appeal: miscarriage of justice

The Court dismissed the conviction appeal. The critical question was not counsel's competence but whether a miscarriage of justice resulted from his conduct. Stern JA, with whom Fagan J and Dhanji J agreed, held that no miscarriage occurred because counsel's decisions, viewed objectively, were rationally explicable by legitimate forensic considerations (at [36], [43]).

Stern JA found that cross-examining the complainant about the bottle shop trip carried real forensic risks: the complainant had repeatedly provided cogent responses to other challenges put to her in cross-examination, and she was likely to offer a plausible explanation, such as simply having forgotten the trip given its peripheral significance. Not putting the matter to her left an unexplained inconsistency in the evidence that counsel could deploy in closing address (at [32]-[35]). Because the conduct was explicable on objectively rational forensic grounds, the applicant was bound by those decisions (at [43]).

Fagan J agreed there was no miscarriage, but reached that conclusion by a different route. His Honour expressly declined to characterise counsel's omissions as rational or informed tactical decisions, finding instead that they were made in ignorance of the procedural requirements imposed by Browne v Dunn (at [112]-[114]). For Fagan J, the absence of miscarriage rested on the insignificance of the issue: there was no realistic possibility that cross-examining the complainant about a seven-minute bottle shop trip would have raised reasonable doubt about the charged offences. The complainant had never suggested she was unable to leave the house; the omission of the BWS trip from her accounts was in all probability an oversight the jury would have accepted as such (at [119]-[121]).

Dhanji J agreed with the orders and, while accepting that counsel did not cross-examine with a proper understanding of the consequences, confirmed that the test for miscarriage is objective. His Honour also observed that what took place was an informal discussion rather than a formal ruling, and that the trial judge had not formally prevented counsel from making a submission about the complainant's honesty on this point. Any such submission was, however, particularly fragile given that the complainant had been given no opportunity to explain the inconsistency (at [154]-[155]).

Sentence appeal: acquired brain injury and deterrence

The Court allowed the sentence appeal. The sentencing judge found that the offending was consistent with an ill-judged impulsive decision to which the applicant was more prone given his acquired brain injury (at [77]). Stern JA held that this finding implicitly carried with it a conclusion of reduced moral culpability (at [84]). However, the sentencing judge made no express findings about whether that reduced culpability diminished the weight to be given to general or specific deterrence. Given the significance of those questions and the findings already made, the sentencing judge was required to address them (at [91]).

Stern JA held that the omission constituted error and that the threshold of materiality was met. General deterrence was of significantly reduced weight given the contribution of the applicant's cognitive deficits to the offending (at [94]). Specific deterrence remained a significant consideration but was moderated, in part because this was the applicant's first experience of full-time custody (at [96]). Taking all matters into account, the Court resentenced the applicant to an aggregate term of three years and four months with a non-parole period of two years, both commencing on 26 March 2025 (at [99]).

Orders Made

  • Time to file the notice of appeal extended to 6 July 2026.
  • Leave to appeal granted against both conviction and sentence.
  • Appeal against conviction dismissed.
  • Appeal against sentence allowed; sentence of 5 June 2025 quashed and replaced with an aggregate term of 3 years and 4 months commencing 26 March 2025 and expiring 25 July 2028, with a non-parole period of 2 years ending 25 March 2027.

Key Takeaways

  • In dismissing the conviction appeal, the Court confirmed that the relevant question where counsel's conduct is impugned is not competence but whether a material irregularity caused a significant possibility of a different outcome. Where counsel's omission can be explained by objectively rational forensic considerations, the accused is generally bound by it (at [40]-[43]).

  • Fagan J's reasoning illustrates that, even where counsel's decisions were not informed tactical choices but rather the product of a misunderstanding of procedural requirements, a miscarriage of justice will not necessarily follow. The inquiry turns on whether the irregularity could realistically have affected the verdict, assessed by reference to the actual significance of the missed cross-examination in the context of the whole trial (at [111]-[122]).

  • Where a sentencing judge accepts that an offender's mental condition or cognitive deficit contributed to the offending, it will ordinarily be necessary to address expressly whether that reduced moral culpability diminishes the weight to be given to general and specific deterrence, irrespective of whether submissions to that effect were made by the parties (at [89]-[91]).

  • The Court of Criminal Appeal confirmed that a finding of a connection between an acquired brain injury and the offending conduct, while not a prerequisite, may be a significant reason why the sentencing judge must go on to consider the impact of reduced moral culpability on deterrence as a sentencing objective (at [87]).

  • Insufficient or out-of-date medical evidence on sentence can limit the assistance available to the sentencing court. Fagan J noted that the applicant's case would have been materially assisted by specialist neurological or brain-injury rehabilitation opinion directed to the likely contribution of the brain injury to the offending conduct (at [129]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1)
- Evidence Act 1995 (NSW), s 46

Cases
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Browne v Dunn (1893) 6 R 67
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
- Farrugia v The King [2026] HCA 28; (2026) 100 ALJR 1060
- Geoghegan v R [2026] NSWCCA 164
- Hancock v R [2025] NSWCCA 213
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Hong v R [2026] NSWCCA 64
- Hurkmans v R [2024] NSWCCA 126
- Jacono v R [2026] NSWCCA 120
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Monardo v R [2025] NSWCCA 199
- MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
- NK v R [2025] NSWCCA 73
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- R v Birks (1990) 19 NSWLR 677
- R v Ferri [2019] 3 Qd R 496; [2019] QCA 67
- R v Rajakaruna (No 2) (2006) 15 VR 592; [2006] VSCA 277
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- Sampson v R [2026] NSWCCA 117
- Smith (a pseudonym) v R [2025] NSWCCA 145
- Taylor v R [2026] NSWCCA 32
- TD v R [2026] NSWCCA 139
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Tukuafu v R [2024] NSWCCA 84
- YM v R [2023] NSWCCA 75
- Zahab v R [2026] NSWCCA 118
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460