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Court of Criminal Appeal 18 March 2026

Moh’d v R

[2026] NSWCCA 21

Sexual offences

Citation: Moh'd v R [2026] NSWCCA 21
Court: Court of Criminal Appeal (New South Wales)
Date: 18 March 2026
Judge(s): Mitchelmore JA (primary judgment at [1]); Campbell J (agreeing at [81]); Rigg J (agreeing at [83])

Background

The applicant was a registered nurse who was tried in the District Court on an indictment containing eight counts of sexual offending against four complainants. The alleged offences occurred between December 2018 and March 2022 during the applicant's employment at two private hospitals. The complainants comprised a student nurse who had been under the applicant's supervision (EL) and three patients (JM, JR, and RK). The charges included five counts of aggravated sexual touching (under s 61KD of the Crimes Act 1900 (NSW)) and three counts of aggravated sexual intercourse without consent (under s 61J). The aggravating circumstance alleged in each case was that the complainant was under the applicant's authority at the time.

The jury returned a mixed verdict: guilty on counts 1, 4, 5, and 6, and not guilty on counts 2, 3, 7, and 8. The applicant was sentenced to an aggregate term of imprisonment of 5 years and 2 months with a non-parole period of 3 years and 6 months. He sought leave to appeal against his conviction on count 6 (sexual touching of the complainant RK's breasts) on the ground that the guilty verdict was inconsistent with the not guilty verdict on count 7 (squeezing RK's nipple), which allegedly arose from the same course of conduct. He also sought leave to appeal against the aggregate sentence, arguing the sentencing judge erred in finding that the conduct on count 1 involved "skin-to-skin" contact.

The Crown case on the counts concerning RK was that the applicant touched her breasts (count 6), squeezed her nipple (count 7), and on the same day made an inappropriate sexual remark while rubbing cream into her back (count 8), all while purporting to reconnect monitoring leads. In relation to count 1, the Crown alleged that while purporting to demonstrate a bowel sounds check to student nurse EL, the applicant placed a stethoscope diaphragm beneath the waistline of her pants and used his other hand to pull back her underwear, looking down at her genitals.

  • Inconsistent verdicts (count 6): Was the jury's verdict of guilty on count 6 (touching RK's breasts) unreasonable because it was inconsistent with the verdict of not guilty on count 7 (squeezing RK's nipple), given that both counts arose from the same alleged course of conduct?

  • Sentencing error (count 1): Did the sentencing judge err in finding that the conduct constituting count 1 involved "skin-to-skin" contact, and if so, did this affect the assessment of objective seriousness and the aggregate sentence?

Decision

The conviction appeal: no inconsistency between counts 6 and 7

The Court of Criminal Appeal, in a judgment delivered by Mitchelmore JA with Campbell J and Rigg J agreeing, granted leave to appeal on both grounds but dismissed both appeals.

On the conviction ground, Mitchelmore JA applied the well-established principles from MacKenzie v The Queen (1996) 190 CLR 348 and Holt v R [2021] NSWCCA 140, which require the court to consider whether there is a rational explanation for the difference in verdicts before concluding that a verdict is unreasonable by reason of inconsistency. Her Honour found that a rational explanation existed: the two counts alleged conduct at differing levels of specificity. Count 6 alleged that the applicant touched RK's breasts — a broader allegation — while count 7 alleged the more specific act of squeezing her nipple. Critically, RK gave evidence that she did not see the act, and her initial complaint was that the applicant "fondled her breasts and rubbed her nipples." In those circumstances, the Court held it was entirely rational for the jury to be satisfied beyond reasonable doubt that the applicant touched RK's breasts in a sexual way (count 6) without being separately satisfied to the criminal standard that he had squeezed her nipple (count 7). The differential verdicts reflected a rational assessment of the strength of the evidence on each count, not logical inconsistency.

The sentence appeal: skin-to-skin finding was reasonably open

On the sentencing ground, the Court applied the principles in House v The King (1936) 55 CLR 499 governing appellate review of sentencing discretion, as well as more recent authority including Hancock v R [2025] NSWCCA 213, Tukuafu v R [2024] NSWCCA 84, MF v R [2024] NSWCCA 42, and Monardo v R [2025] NSWCCA 199. The applicant argued that the sentencing judge's finding that the offending on count 1 involved skin-to-skin contact was not supported by the evidence and inflated the assessment of objective seriousness.

Mitchelmore JA found that the sentencing judge's finding was reasonably open on EL's evidence. EL described the applicant placing one hand down her work pants holding the stethoscope diaphragm and then using his free hand — specifically, at least the index finger of that hand — to get between her skin and her underwear in order to pull the underwear away from her skin so he could look at her exposed pubic area. On the basis of that description, it was reasonably open to the sentencing judge to infer that the act involved skin-to-skin contact. The appeal against sentence was accordingly dismissed.

Orders Made

  • Leave to appeal against conviction on count 6 was granted, but the appeal was dismissed.
  • Leave to appeal against the aggregate sentence was granted, but the appeal was dismissed.
  • The conviction and sentence imposed at first instance were confirmed.

Key Takeaways

  • Differential verdicts are not necessarily inconsistent verdicts. Where counts arising from similar conduct are framed at different levels of specificity, a rational jury may convict on the broader count while acquitting on the more specific one. The Court of Criminal Appeal confirmed that the precise elements and evidentiary requirements of each count must be analysed before a finding of inconsistency can be made.

  • The level of specificity in an indictment matters. How counts are framed, particularly where one is a subset or more particularised version of another, can legitimately lead to different outcomes. The decision illustrated how the granularity of the allegations on each count can explain apparently divergent verdicts.

  • Under the House v The King standard, sentencing findings of fact need only be "reasonably open" on the evidence. Where the evidence is capable of supporting a factual finding relevant to objective seriousness, an appellate court will not interfere merely because a different finding was also available. The Court of Criminal Appeal confirmed this standard as continuing to apply with full force.

  • Initial complaint evidence may be significant in assessing the reasonableness of verdicts. In evaluating whether the jury's differential approach to counts 6 and 7 was rational, the Court placed weight on the terms of RK's initial complaint. The language of first complaints, and how it maps onto the counts on the indictment, can be a material consideration in evaluating verdict consistency.

  • Tendency evidence in multi-complainant cases does not guarantee uniform verdicts. Even where the Crown relies on tendency evidence across multiple complainants, a jury is entitled to assess the evidence on each count independently. Mixed verdicts may reflect a careful and discriminating assessment of the evidence rather than any logical error.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c)
- Crimes Act 1900 (NSW), ss 61KD, 61J

Cases:
- Hancock v R [2025] NSWCCA 213
- Holt v R [2021] NSWCCA 140
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MF v R [2024] NSWCCA 42
- Monardo v R [2025] NSWCCA 199
- *Tuku