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Court of Criminal Appeal 17 April 2026

Saleh v R

[2026] NSWCCA 42

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICTS INCONSISTENCY OF JURY VERDICTS CREDIBILITY OF COMPLAINANT’S EVIDENCE

Citation: Saleh v R [2026] NSWCCA 42
Court: Court of Criminal Appeal (New South Wales)
Date: 17 April 2026
Judge(s): Free JA; Yehia J; R A Hulme AJ

Background

The applicant was convicted in the District Court at Parramatta of 15 offences on indictment and a further five related offences dealt with on a s 166 certificate. The offences—comprising aggravated and non-aggravated sexual assault, multiple counts of assault occasioning actual bodily harm, common assault, demanding money with menaces, threatening to distribute intimate images, and intimidation—were all perpetrated against the same female complainant over a period of more than four years. The jury acquitted the applicant of one count of sexual intercourse without consent (Count 1) but found him guilty of Counts 2–16. The trial judge subsequently found him guilty of the five certificate offences.

The sentencing judge imposed an aggregate sentence of 26 years' imprisonment with a non-parole period of 18 years. The applicant sought leave to appeal against both conviction and sentence, raising three grounds in respect of each. At the heart of the conviction appeal was the contention that the applicant and the complainant were in a genuine romantic relationship—a characterisation the Crown case strongly contradicted, presenting evidence of a relationship defined by stalking, intimidation, coercion, and physical and sexual violence.

  • Ground 1(a): Whether the guilty verdicts on Counts 2–16 were inconsistent with the acquittal on Count 1, rendering them unreasonable.
  • Ground 1(b): Whether the guilty verdicts were unreasonable or unsupported by the evidence when assessed on the whole of the material available.
  • Ground 2: Whether the trial judge erred in excluding, under s 294CB of the Criminal Procedure Act 1986 (NSW), an explicit video ("item MB33") depicting the applicant and complainant engaged in sexual activity not the subject of any charge.
  • Ground 3: Whether the absence at trial of text messages (characterised as fresh or new evidence) between the applicant and complainant resulted in a miscarriage of justice.
  • Ground 4: Whether the aggregate sentence of 26 years (non-parole period 18 years) was manifestly excessive.
  • Ground 5: Whether the sentencing judge erred in assigning an indicative sentence of the maximum penalty for Count 12, and whether any such error infected the aggregate sentence.
  • Ground 6: Whether the sentencing judge erred in finding that the applicant's personal circumstances did not mitigate either the aggregate sentence or the indicative sentence for Count 12.

Decision

Conviction appeal

On Ground 1(a), the Court held that the jury's differentiation between Count 1 and Counts 2–16 was logically explicable. Count 1 depended on the complainant's evidence alone, whereas the remaining counts were supported by a substantial body of additional evidence. Applying the framework from Mackenzie v The Queen, R v Markuleski, and the more recent The King v ZT, the Court found no inconsistency that would render the verdicts unreasonable.

On Ground 1(b), the Court conducted an independent assessment of the evidence under M v The Queen. It rejected the applicant's characterisation of the relationship as romantic, finding that it was "inconsistent with the overwhelming case presented by the Crown" of a relationship involving stalking, intimidation, control, coercion, and physical and sexual violence. The guilty verdicts were neither unreasonable nor unsupported by the evidence.

On Ground 2, the Court applied the correctness standard of review to the trial judge's ruling under s 294CB. The section required the probative value of the video to outweigh any distress, humiliation, or embarrassment the complainant might suffer. Each member of the Court viewed the video and found that, far from showing the complainant smiling or willingly participating (as the applicant contended), it was equally or more consistent with her not being a free and voluntary participant. Given the low probative value—the act depicted was not the subject of any count—and the substantial risk of significant distress, the trial judge was correct to exclude the evidence.

On Ground 3, the Court classified the Snapchat messages as "new" rather than "fresh" evidence, because they were available to the applicant and at least constructively available to his lawyers at trial. Applying R v Abou-Chabake and Ratten v The Queen, the Court held that a miscarriage of justice from new evidence is only established where its cogency leads to a conclusion that guilt was not proved beyond reasonable doubt. The messages—in which the complainant purportedly expressed love and willingness—did not reach that threshold when weighed against the totality of the trial evidence, and the proposed tender was rejected.

Sentence appeal

On Ground 5, the Court addressed the indicative sentence of the maximum penalty for Count 12. Applying Dorsett v R and JM v R, it noted that indicative sentences are not themselves amenable to appeal; however, a clear error in an indicative term may signal error in the aggregate. The sentencing judge's characterisation of Count 12 as a "worst category" offence was treated not as a pure finding of fact but as analogous to an assessment of objective seriousness based upon factual findings, reviewable on the "reasonably open" standard (Hancock v R; Fisher v R). The Court found that characterisation was reasonably open on the evidence.

On Ground 6, the Court held that the sentencing judge was fully apprised of the applicant's limited subjective case and it was reasonably open to him to conclude that the applicant's personal circumstances did not mitigate either the aggregate sentence or the indicative sentence for Count 12.

On Ground 4 (manifest excess), having regard to the objective seriousness of the offending, the applicant's high moral culpability, the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, and the applicant's limited subjective case, the Court held the aggregate sentence was not manifestly excessive, unreasonable, or "plainly unjust." Comparison with past sentencing cases was undertaken with caution, consistent with Nair v R and Hili v R; Jones v R.

Orders Made

  • Leave to appeal against conviction was granted; the appeal against conviction was dismissed.
  • Leave to appeal against sentence was granted; the appeal against sentence was dismissed.

Key Takeaways

  • Inconsistent jury verdicts, such as an acquittal on one count alongside convictions on others, are not unreasonable where the evidentiary foundation for the counts meaningfully differs. The Court of Criminal Appeal held that the presence or absence of corroborating evidence was the decisive distinguishing factor in this case.

  • Under s 294CB of the Criminal Procedure Act 1986, a demanding threshold applies for admitting sexual experience evidence. The Court confirmed that even where an explicit video qualifies as evidence of an "existing relationship" under s 294CB(4)(b), it will be excluded where its probative value is low (particularly if unrelated to any charged act) and the risk of distress, humiliation, or embarrassment to the complainant is substantial. The correctness standard was held to apply on appeal from such a ruling.

  • The distinction between "new" and "fresh" evidence on appeal was maintained, with the Court of Criminal Appeal confirming that evidence available (even constructively) to the defence at trial is classified as "new" and attracts a more demanding test: it must be so cogent as to lead to a conclusion that guilt was not established beyond reasonable doubt.

  • A sentencing judge's characterisation of offending as falling within the "worst category" is not a pure finding of fact but is analogous to an objective seriousness assessment. The Court held that such a finding is reviewable on the deferential "reasonably open" standard applicable to appellate review of factual assessments at sentencing.

  • In dismissing the challenge to the aggregate sentence, the Court of Criminal Appeal confirmed that an arguably excessive indicative sentence does not necessarily vitiate the aggregate sentence. The fundamental question on appeal is whether the aggregate sentence is manifestly excessive when measured against the totality of the criminality, not whether each individual indicative term is precisely calibrated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61, 61I, 61J(1), 61JA, 61L, 91R(2), 249K(1)(a), 578A(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)