AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 27 March 2026

Sherry v R

[2026] NSWCCA 28

Sexual offences
CRIMINAL APPEAL GROUND THAT GUILTY VERDICT UNREASONABLE APPLICATION OF AUTHORITIES NO INCONSISTENCY MYTHS AND PRECONCEPTIONS CONSIDERATION OF JURY’S ADVANTAGE

Citation: Sherry v R [2026] NSWCCA 28
Court: Court of Criminal Appeal (NSW)
Date: 27 March 2026
Judge(s): Hamill J (primary judgment at [1]), McNaughton J (agreeing at [121]), Emmett J (agreeing at [122])

Background

The applicant, Harley Sherry, was tried in the District Court at Wagga Wagga in December 2024 on three counts of sexually touching a child between the ages of 10 and 16 years. Count 1 related to the complainant referred to as "AZ," the child of the applicant's former partner. Counts 2 and 3 related to AZ's twin sister, "IZ." The alleged offence in count 1 occurred in Junee between December 2018 and January 2020, when AZ was 10 or 11 years old. The prosecution alleged that the applicant, while alone in a car with AZ during an evening errand to a petrol station and to look at Christmas lights, traced his hand up the complainant's thigh and sexually touched the complainant for some minutes.

The jury returned a guilty verdict on count 1 (by majority, 11:1) and not guilty verdicts on counts 2 and 3 (the verdict on count 2 also being 11:1). The applicant was sentenced to two years and three months' imprisonment with a non-parole period of 18 months. He did not appeal against sentence.

The applicant sought leave to appeal on the sole ground that the guilty verdict on count 1 was unreasonable or could not be supported having regard to the evidence. He identified eight matters said to reflect adversely on the reliability of the complainant's evidence, relying on them individually and collectively. It is relevant to note that at the time of the original allegations AZ identified as female, but by the time of trial identified as male. The Court of Criminal Appeal used he/him/his pronouns for AZ, noting with disapproval that the parties at trial had not respected AZ's preferred pronouns or gender identity.

  • Whether the guilty verdict on count 1 was unreasonable or could not be supported having regard to the evidence, within the meaning of the Criminal Appeal Act 1912 (NSW), s 6(1).
  • Whether the acquittals on counts 2 and 3 gave rise to any inconsistency that rendered the conviction on count 1 unreasonable.
  • Whether eight specific matters of concern raised by the applicant — including continued contact between the complainant and the applicant after the alleged offence, imprecision as to the timing of the offence, a conceded mistake by the complainant about either the car in which the offence occurred or the home the family was living in at the relevant time, the complainant's hostile response to defence counsel during cross-examination, and evidence tending to undermine the complainant's claim to have avoided being in the front seat of a car with the applicant — individually or cumulatively raised a reasonable doubt that could not be resolved by the jury's advantage.
  • The extent to which the jury's advantage in observing witnesses in the courtroom — particularly in an emotionally charged trial — could resolve doubts experienced by an appellate court.
  • Whether arguments based on the complainant's post-offence behaviour and the supposed implausibility of the applicant offending in particular circumstances rested on impermissible myths and preconceptions about how victims and perpetrators of sexual assault behave.

Decision

No inconsistency from the mixed verdicts

The Court held that there was no legal, logical, or factual inconsistency between the conviction on count 1 and the acquittals on counts 2 and 3. The jury was required to assess each count separately, and different credibility issues arose in relation to each complainant. Drawing on MacKenzie v The Queen and MFA v The Queen, the Court found that the mixed verdicts demonstrated the jury had performed its function and followed judicial directions. Beyond a muted submission about concoction, the applicant did not press this point strongly.

Independent review of the evidence

Hamill J undertook a thorough independent review of the entire trial record, applying the principles from M v The Queen, Pell v The Queen, and Dansie v The Queen, as well as the more recent High Court authority of R v ZT. The Court examined each of the eight matters of concern the applicant identified and evaluated whether, individually or cumulatively, they gave rise to a reasonable doubt about the applicant's guilt.

Specific matters of concern

On the complainant's sustained contact with the applicant after the offence, the Court held that the suggestion this undermined the allegation was at odds with a modern understanding of how victims of sexual assault — especially children in complex family settings — actually behave. The same applied to the argument that it was implausible for the applicant to have offended when the complainant's mother was in the habit of questioning her children about sexual touching. While these were legitimate forensic arguments to make before a jury, the jury rejected them, and the Court found no error in that rejection, applying Sita v R.

As to the complainant's hostile and crude response to defence counsel during cross-examination — AZ directed an expletive at counsel — the Court held this was a matter the jury was better placed to evaluate than an appellate court. The jury was familiar with the atmosphere of the emotionally charged trial and the tone of the cross-examination. Hamill J noted that AZ's reaction appeared understandable, particularly in circumstances where counsel had used the term "young lady" when addressing a complainant who identified as male. The Court applied the well-established principle from M v The Queen and R v ZT that the jury's advantage in observing witnesses is at its most significant where credibility is at issue and the courtroom dynamics are relevant.

Regarding the objective evidence capable of disproving the complainant's assertion that he avoided being in the front seat of a car with the applicant after the offence, the Court acknowledged this was a real issue but noted it was patently before the jury. The jury was entitled to reject that aspect of AZ's evidence as mistaken, untruthful, or exaggerated while accepting those aspects central to establishing the allegation beyond reasonable doubt.

On timing imprecision, the Court noted that it is well established that child witnesses can be uncertain about such details. This was not a case where the timing of events had been made "of the essence" by the way the trial was conducted, distinguishing R v Westerman and Cawthray v R.

On the conceded mistake — the prosecution acknowledged the complainant was wrong about either the car in which the offence occurred or the home the family was living in at the relevant time — the Court held that the prosecution was required to establish the elements of the offence, not surrounding details. The jury was entitled to find the complainant honest and reliable on the central issues while accepting he was mistaken about one or other peripheral matter, distinguishing Pell, Teasdale, Livermore, and Hodgson.

Conclusion

Hamill J concluded that, having considered all eight matters of concern individually and collectively, it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt. Any residual doubt experienced on the appellate review was readily dispelled by the advantages the jury enjoyed. McNaughton J and Emmett J agreed.

Orders Made

  • Leave to appeal was granted.
  • The appeal against conviction was dismissed.

Key Takeaways

  • The Court of Criminal Appeal held that the jury's advantage in observing courtroom dynamics is especially significant in emotionally charged trials, and that where the tone of cross-examination and a witness's emotional responses were relevant to assessing credibility, the appellate court accorded substantial weight to the jury's first-hand observations, finding this sufficient to resolve doubts it might otherwise have harboured.
  • Arguments based on a complainant's post-offence behaviour, such as continued contact with the accused or the accused's willingness to offend in supposedly risky circumstances, must be assessed against modern understandings of victim behaviour, and such submissions may rest on impermissible myths and preconceptions, particularly in cases involving children in complex family settings.
  • A jury may properly accept a complainant's evidence on central matters while rejecting peripheral details, and even where the prosecution conceded a mistake regarding a surrounding detail (such as which car was involved or which home the family occupied), the verdict could stand where the jury was entitled to find the complainant reliable on the elements of the offence.
  • Mixed verdicts across counts involving different complainants do not automatically give rise to inconsistency. The Court recognised that separate assessment of each count, with different credibility considerations arising for different witnesses, can produce acquittals and convictions that are entirely compatible with proper jury reasoning.
  • In refusing leave to appeal, the Court confirmed that an independent review of the whole of the evidence, conducted in accordance with the principles in M v The Queen, Pell v The Queen, and Dansie v The Queen, did not reveal the conviction to be unreasonable or unsupported by the evidence.