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Court of Criminal Appeal 6 February 2026

MW v R

[2026] NSWCCA 2

Sexual offences

Citation: MW v R [2026] NSWCCA 2
Court: Court of Criminal Appeal (NSW)
Date: 6 February 2026
Judge(s): Stern JA at [1]; Dhanji J at [89]; Chen J at [95]

Background

The appellant (MW) was the paternal uncle of the complainant (ST), a child who was eight years old at the time of the alleged offending. On 11 September 2024, a jury found MW guilty of one charge of sexual intercourse with a child under the age of 10, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The particularised conduct was MW inserting his penis in ST's mouth. The Crown case was that this occurred in the kitchen of MW's home during a game devised by MW, which ST referred to as "the fruit game," while ST was on her knees with her eyes covered by a beanie.

The trial ran from 2 to 10 September 2024. The evidence included approximately five hours of ST's recorded evidence — comprising three recorded police interviews (known as JIRT interviews, conducted when ST was aged 8 and 9) and recorded examination-in-chief, cross-examination, and re-examination. MW gave evidence at trial and denied the charged conduct. He was sentenced to four years' imprisonment with a non-parole period of two years.

MW sought leave to appeal against his conviction under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the sole ground that the verdict was unreasonable or could not be supported having regard to the evidence. He did not appeal his sentence. The appeal proceeded on agreed assumptions: that the jury had assessed ST's evidence as credible and MW's denials as not credible, and that the jury enjoyed an advantage over the appellate court in evaluating the evidence as a whole.

  • Whether the jury's verdict of guilty was unreasonable or could not be supported having regard to the evidence, applying the M v The Queen framework.
  • Specifically, MW raised four sub-issues:
  • (i) Whether the evidence as a whole was capable of establishing beyond reasonable doubt that MW placed his penis (as opposed to his testicles) in ST's mouth.
  • (ii) Whether the alleged implausibility of ST's evidence regarding uncharged sexual acts undermined the reliability of her evidence as to the charged conduct.
  • (iii) Whether the failure to call ST's brother (AT), who was said to have been present in the home at the time of the offending, gave rise to a reasonable doubt.
  • (iv) Whether the quality and sufficiency of ST's evidence as a whole raised a doubt as to the reliability of her account of the offending.

Decision

Issue (i) — Penis versus testicles: The Court rejected MW's contention that the evidence could not establish beyond reasonable doubt that it was his penis, rather than his testicles, that was placed in ST's mouth. Stern JA (with Chen J agreeing) found that ST's evidence on the core aspects of the offending was "remarkably consistent" across her initial disclosure, three police interviews, and recorded evidence. While there were some variations in the language ST used to describe what was placed in her mouth, these were not sufficient to generate a reasonable doubt. Dhanji J, agreeing with the majority's reasoning, added a further observation: as a young child confronted by adult male genitals, ST's failure to distinguish between what was placed in her mouth and the more prominent component of MW's genitals — his penis — "overwhelmingly suggested" that it was MW's penis.

Issue (ii) — Implausibility of uncharged acts: The Court held that the apparent implausibility of ST's accounts of uncharged sexual conduct, and inconsistencies in those accounts, did not undermine the reliability or credibility of her evidence concerning the charged offence. Stern JA (with Chen J agreeing) concluded this matter did not give rise to a reasonable doubt as to guilt. Dhanji J acknowledged this was "the most troubling aspect of the evidence" and that evidence suggestive of unreliability regarding allegations of sexual activity "necessarily impacted the Crown's ability to discharge its onus of proof." However, Dhanji J found that, set against this concern, there was a "specificity and consistency" to the complainant's evidence of the charged act, and her account of how the event came about had "a quality of believability."

Issue (iii) — Failure to call ST's brother: The Crown led evidence from Detective Sergeant Frost, who explained he did not interview AT based on his child abuse training. ST and AT's mother gave evidence under cross-examination that AT had described ST "going off with [MW]" in the home. The Court found that, in circumstances where it was unclear whether this information had been communicated to the Crown or DS Frost, and given DS Frost's explanation for not interviewing AT, the failure to call AT did not cause the Court to hold a reasonable doubt as to guilt. All three judges agreed on this point.

Issue (iv) — Quality and sufficiency of the evidence overall: The Court was not persuaded that the evidence as a whole raised a reasonable doubt as to MW's guilt. Stern JA (with Chen J agreeing) found that any doubt that might have been experienced was capable of being resolved by the jury's "very considerable advantage" in assessing and weighing the evidence. Dhanji J was more candid, stating that this was a case where the jury's advantage — particularly having had the benefit of viewing the recordings of the complainant's interviews and pre-recorded evidence over an extended period — "was capable of resolving a doubt his Honour would otherwise have held."

The Court applied the framework from M v The Queen (1994) 181 CLR 487 as recently discussed in The King v ZT (2025) 281 CLR 137, emphasising that the jury's advantages extend beyond credibility assessments to include all evidence adduced at trial and the collective wisdom and experience of the jurors. The Court also noted guidance from ZT regarding the limited role of an appellate court in reviewing recorded witness testimony and confirmed that assessing a witness's credibility by reference to the manner of giving evidence is not a "real forensic purpose" for appellate review of recordings.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the jury's advantage in seeing and hearing evidence remains a powerful factor in unreasonable verdict appeals, and that even where an appellate judge personally holds a doubt (as Dhanji J did), the appeal may still be dismissed if the jury's advantage is capable of resolving that doubt.

  • A distinction was drawn between the specificity and consistency of the complainant's account of the charged conduct and the more problematic aspects of her evidence about uncharged acts, with inconsistencies in a child complainant's evidence about uncharged acts not necessarily undermining the evidence about the charged offence.

  • No reasonable doubt arose from the Crown's failure to call a potentially relevant witness, particularly where there was an explanation for the decision not to interview or call that witness.

  • Consistent with The King v ZT, the Court approached its review primarily on the basis of the submissions and evidentiary materials relied upon by the parties, declining to independently review the complainant's recorded evidence beyond short excerpts relied upon by the appellant and reflecting the principle that appellate courts should exercise caution when reviewing recorded testimony.

  • The ZT framework was confirmed as continuing to shape how unreasonable verdict appeals are conducted in NSW, particularly regarding the scope of appellate review of recorded witness testimony and the weight to be given to the jury's advantage across all forms of evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 18(2)
- Bail Act 2013 (NSW), s 12

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Mahmood v Western Australia (2008) 232 CLR 397;