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Court of Criminal Appeal 17 April 2026

Lind v R

[2026] NSWCCA 41

Sexual offences
CRIME A PPEALS A PPEAL AGAINST CONVICTION A PPEALS APPEAL AGAINST CONVICTION LEAVE REQUIRED UNDER R 4.15

Citation: Lind v R [2026] NSWCCA 41
Court: Court of Criminal Appeal (NSW)
Date: 17 April 2026
Judge(s): Kirk JA (McNaughton J and McGuire J agreeing)

Background

The applicant, a man aged 19 to 20 at the time of the alleged offending, was tried by jury in the District Court on five counts of sexual offences involving two complainants under 16 years of age. Both complainants were friends of the applicant's sister, and all were connected through a cheerleading gym in northern Sydney. The applicant and the primary complainant, CL, had been in a boyfriend/girlfriend relationship from late 2020 to early May 2021.

The jury convicted the applicant on three counts relating to CL (sexual touching under her underwear in a lounge room, fellatio in a bathroom, and digital/vaginal intercourse in a bedroom) and acquitted him on two counts (anal intercourse with CL, and digital/vaginal intercourse with the second complainant, AR). The trial judge imposed an aggregate sentence of two years' imprisonment with an 11-month non-parole period.

The applicant sought leave to appeal against his three convictions on two grounds: first, that the acquittal on count 1 was inconsistent with the guilty verdicts on counts 3 and 4; and second, that the trial judge erred in failing to give an extended unanimity direction in relation to count 2, where two witnesses gave somewhat different accounts of the sexual touching.

  • Ground 1 (Inconsistent verdicts): Was the jury's acquittal on count 1 (anal intercourse) logically and rationally inconsistent with its guilty verdicts on counts 3 and 4 (fellatio and digital/vaginal intercourse), given that all three counts rested primarily on CL's credibility?
  • Ground 2 (Extended unanimity direction): Should the trial judge have given an extended unanimity direction on count 2, where two witnesses (CL and ES) gave somewhat different accounts of what the sexual touching involved? Did failure to seek such a direction at trial require leave under r 4.15, and was leave warranted?

Decision

On Ground 1, the Court granted leave to appeal but dismissed the ground. Kirk JA found a rational explanation for the acquittal on count 1 that did not depend on disbelief of CL's evidence generally. Counts 2, 3 and 4 each related to conduct tied to specific, memorable dates. Count 1, by contrast, alleged offending across a broad date range over the summer holidays, and CL herself expressed uncertainty about timing. Defence counsel at trial had made submissions on whether the offending fell within the indictment's date range, and the trial judge gave directions reinforcing the importance of being satisfied about timing. It was therefore entirely plausible that the jury believed CL's account of the anal intercourse but acquitted because it was not satisfied the conduct occurred within the dates charged. The verdicts were not an "affront to logic and commonsense."

On Ground 2, the Court refused leave under r 4.15. Kirk JA held that the Crown relied on a single act of sexual touching, not on discrete alternative acts any one of which could independently ground a conviction. The fact that CL and ES described the touching somewhat differently is a common occurrence at trial. The differences were not "mutually destructive" alternative bases for liability, nor did they create "materially different issues or consequences" for the applicant. The jury did not need to be unanimous about the precise evidentiary pathway to its conclusion that intentional sexual touching occurred. Importantly, the Crown had expressly identified CL's version as the basis for the charge, openly acknowledging that ES's account described more serious conduct (sexual intercourse) which it was not charging. No objection had been raised at trial, and the Court found no injustice in the atmosphere of the trial that would justify granting leave to raise the point on appeal.

Orders Made

  • Leave to appeal granted on Ground 1; leave refused on Ground 2.
  • Appeal on Ground 1 dismissed.
  • Convictions on counts 2, 3 and 4 upheld.

Key Takeaways

  • Inconsistent verdicts and timing differences between counts. The Court of Criminal Appeal recognised that differences in the specificity of timing or particularisation between counts can provide the rational explanation that defeats an inconsistent verdicts ground of appeal. A jury may believe a complainant about an event yet acquit on a particular count because it was not satisfied the event fell within the dates specified on the indictment, and this constitutes a legitimate, non-credibility-based basis for distinguishing between verdicts.

  • Impact of broad date ranges and timing uncertainty on verdicts. Where an indictment specifies a broad date range and a complainant expresses uncertainty about when an offence occurred, the jury has a rational, non-credibility-based reason to acquit on that count. Timing issues in the particularisation of charges were identified as a factor capable of explaining differential verdicts without resort to any conclusion that the jury must have been acting unreasonably.

  • Extended unanimity directions and the distinction between discrete alternative acts and a single act. No extended unanimity direction is required where the Crown relies on a single act and a single evidentiary basis for a charge, even if different witnesses describe that act with minor variations. The key distinction identified was between cases involving truly discrete, alternative acts and cases involving one act described somewhat differently by different witnesses.

  • Failure to seek a direction at trial and the operation of r 4.15. Raising on appeal a direction that was neither sought nor given at trial engages r 4.15 and requires leave. In assessing whether leave should be granted, the Court considered whether there was actual injustice in the atmosphere of the trial, treating the absence of a forensic reason for the omission to seek the direction as relevant but not determinative.

  • Crown election to charge a lesser offence as a factor weighing against the need for an extended unanimity direction. The Crown's express election to charge only the lesser offence (sexual touching rather than sexual intercourse) and to rely on one witness's version of events weighed against the need for an extended unanimity direction. Clear Crown submissions at trial identifying the specific evidentiary basis for a charge were found capable of insulating a verdict from challenge on this ground.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(3), 66DB(a)
- Criminal Procedure Act 1986 (NSW), s 16(1)(g)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- AKB v R [2024] NSWCCA 169
- Al-Sheikh v R [2025] NSWCCA 205
- Barney v R [2023] NSWCCA 85
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177
- R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299
- Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130
- Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52
- Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179