DB v R

Citation: [2026] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 25 March 2026
Judge(s): Free JA; Fagan J; Huggett J

Background

The applicant (referred to as DB) was tried in May 2024 on an indictment containing three counts of sexual offences against the same complainant (referred to as LC). DB was a family friend approximately four and a half years older than LC. According to LC, DB touched him in a sexualised way over many years, beginning when LC was around three or four years old and concluding with an incident at a house in Enmore when LC was aged 13 and DB was aged 17. The three counts spanned the period from 2007 to 2011 and comprised two counts of aggravated indecent assault and one count of sexual intercourse with a child.

The jury acquitted DB on the first two counts (which related to earlier alleged offending) but convicted him on Count 3, the most recent allegation concerning the 2011 incident in Enmore. DB was sentenced to a three-year community corrections order. He did not appeal his sentence but sought leave to appeal against the conviction, arguing principally that the mixed verdicts were logically irreconcilable and therefore unreasonable, and that various matters at trial amounted to a miscarriage of justice.

In addition to LC's testimony, the jury heard complaint evidence from other witnesses and a statement from LC's sister (HC), which was read to the jury by a police officer. HC was not cross-examined. Her evidence was mixed in its implications: she had never observed any sexualised behaviour by DB towards LC, but she recalled DB staying overnight at the Enmore house on the night in question — a fact inconsistent with DB's version of events.

Legal Issues

• Whether the jury's verdict of guilty on Count 3 was unreasonable by reason of inconsistency with the acquittals on Counts 1 and 2 — specifically, whether the different verdicts could be logically reconciled.
• Whether the trial judge erred in directing the jury regarding: (a) evidence of a ten-year course of sexual abuse; (b) the evidence of HC (LC's sister) in relation to Count 3; and (c) evidence concerning LC's presentation to a psychiatric hospital with anxiety and depression.
• Whether the admission of HC's evidence in statement form (without cross-examination), consented to by defence counsel, constituted a material irregularity amounting to a miscarriage of justice.
• Whether defence counsel's failure to address the jury about the unfavourable aspect of HC's evidence (that DB stayed overnight at the Enmore house) amounted to a miscarriage of justice.

Decision

On the inconsistent verdicts ground, the Court emphasised that the applicant bore a heavy burden. Inconsistency only renders a conviction unreasonable where the different verdicts cannot be reconciled on any proper basis — where the outcome involves an "affront to logic and commonsense." The Court found the verdicts were readily reconcilable. Count 3 concerned the most recent of the alleged offences. It was logical and open to the jury to conclude that LC's recollection of more recent events was more reliable than his recollection of events that occurred when he was a much younger child. LC was able to provide specific details about the Count 3 incident and its surrounding circumstances that gave his account a solid grounding.

Critically, the Court drew a distinction between credibility and reliability. DB had argued that the acquittals on Counts 1 and 2 necessarily reflected doubts about LC's credibility, which should logically have infected Count 3 as well. The Court rejected this, noting that a jury may properly regard a witness as honest and generally credible but not sufficiently reliable in respect of particular matters — particularly where the earlier events occurred when the witness was very young. The more natural inference from the mixed verdicts was that the jury found LC reliable on Count 3 but not sufficiently reliable on the earlier counts. This was consistent with the trial judge's standard directions to consider each count separately and to accept evidence in whole or in part.

On the miscarriage of justice grounds, the Court found no error in the trial judge's summing up. The description of LC's evidence as being "in general terms" about abuse over a ten-year period was supported by the evidence. The directions regarding LC's mental health presentation were adequate — the judge told the jury not to speculate and to exercise care in drawing inferences, and nothing implicitly invited the jury to conclude that LC's mental state was caused by actual sexual abuse. Regarding HC's evidence, the trial judge had merely identified points urged by the Crown and did not misrepresent or overstate its significance.

On the question of defence counsel's forensic decisions, the Court held that consenting to the admission of HC's statement was a sound professional judgment. HC's evidence contained a significant benefit for the defence (she had never observed any sexualised behaviour despite extensive contact) alongside a potential detriment (corroboration of DB being at the Enmore house overnight). Balancing these considerations fell within the wide discretion afforded to trial counsel. Similarly, the decision not to address the overnight stay in closing submissions was a legitimate forensic choice. The Court applied well-established principles that a client is ordinarily bound by counsel's decisions as to how the trial is conducted.

Orders Made

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

Key Takeaways

• The Court of Criminal Appeal confirmed that the distinction between credibility and reliability remains a critical analytical tool in inconsistent verdict appeals, holding that where a complainant's evidence on one count is potentially less reliable due to the passage of time or the age at which events were experienced, a jury's differentiated verdicts may be logically reconcilable without any adverse inference about overall honesty.

• In child sexual assault cases involving multiple counts spanning several years, the age of the complainant at the time of the alleged offending can logically bear on the reliability (though not necessarily the honesty) of their recollection, and this constitutes a proper basis for a jury to return different verdicts on different counts.

• Defence counsel's forensic decisions at trial, including consent to the admission of evidence and choices about closing address, will not lightly be treated as giving rise to a miscarriage of justice; the Court assessed whether such decisions fell within the range of sound professional judgment having regard to both the advantages and disadvantages of the course taken.

• The absence of a request for redirection by defence counsel was treated as a relevant, though not determinative, indicator that no risk of miscarriage was perceived by the person best placed to assess the matter at trial.

• Upholding the conviction, the Court reaffirmed that appellate courts will give due respect to the jury's constitutional role as the trier of fact and its representative function in the community, and will not overturn verdicts on inconsistency grounds unless the outcome truly amounts to an affront to logic and commonsense.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C
- Criminal Appeal Act 1912 (NSW), s 5
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Kumar v R [2025] NSWCCA 119
- Barney v R [2023] NSWCCA 85
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- TWKJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Nudd v The Queen (2006) 35 SASR 356; [2006] HCA 9
- Holmes v R [2024] NSWCCA 233
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- ML v R [2015] NSWCCA 27