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Court of Criminal Appeal 24 April 2026

Carter (a pseudonym) v R

[2026] NSWCCA 43

Sexual offencesAssault & violence

Citation: Carter (a pseudonym) v R [2026] NSWCCA 43
Court: Court of Criminal Appeal (NSW)
Date: 24 April 2026
Judge(s): Wright J (primary reasons), Fagan J (agreeing with additional reasons), Rigg J (agreeing with additional reasons)

Background

The applicant was convicted following a jury trial in the District Court at Dubbo in May 2024. The indictment contained three counts of sexual intercourse with a child under 10 and three alternative counts of sexually touching a child under 10, along with three related sequences of common assault. The complainant was eight years old at the time of the alleged offending, which was said to have occurred across three incidents between March and June 2022 at the home the complainant shared with her mother and the applicant (her mother's then partner).

The jury acquitted on the three sexual intercourse counts but convicted on the three alternative sexual touching counts. The trial judge subsequently found the three related common assault sequences proved. The applicant was sentenced to an aggregate term of 4 years and 3 months' imprisonment with a non-parole period of 2 years and 7 months.

The applicant sought leave to appeal the sexual touching convictions and appealed the related offence convictions, raising three grounds.

  • Ground 1: Whether the jury's guilty verdicts on the sexual touching counts were unreasonable or unsupported by the evidence, having regard to alleged implausibility, inconsistencies, and the pattern of acquittals on the more serious counts.
  • Ground 2: Whether the trial judge's directions on tendency evidence caused a miscarriage of justice by failing to instruct the jury on the beyond reasonable doubt standard for the ultimate question of guilt within the tendency direction, contrary to the approach in DPP v Roder and The King v AR.
  • Ground 3: Whether the trial judge erred by taking into account the jury's verdicts on the charged counts when finding the applicant guilty of the related common assault offences, and whether the reasons for those findings were sufficient.

Decision

Ground 1 (unreasonable verdict) was dismissed. The Court conducted an independent review of the evidence and found the complainant's account was not generally incredible or implausible. Inconsistencies that emerged in questioning related to peripheral details and were explicable in the context of the complainant's young age. The jury was well placed to assess the truthfulness and reliability of the evidence. The Court also held that the pattern of acquittals on the sexual intercourse counts and guilty verdicts on the sexual touching alternatives had a rational explanation and did not necessarily reflect significant doubts about credibility that would render the guilty verdicts unreasonable.

Ground 2 (tendency evidence directions) was upheld. The Crown had relied on the three charged acts themselves as proof of the applicant's tendency. The trial judge's tendency direction failed to remind the jury that it must ultimately be satisfied beyond reasonable doubt of the applicant's guilt on each charged act. Wright J held this omission undermined the jury's understanding of the different standards of proof applicable to the tendency question and the ultimate question of guilt, applying DPP v Roder and the High Court's recent decision in The King v AR. Other references to the onus and standard of proof elsewhere in the summing up did not ameliorate the risk. The fact that the tendency was based on a single complainant's evidence relating to a small number of charged acts increased the likelihood that the standard of proof was undermined. The Court concluded there was a real risk the jury was deflected from its fundamental task, constituting a material miscarriage of justice.

Fagan J added that the deficiency could not have been remedied simply by the trial judge refraining from instructing the jury to decide whether the applicant performed all or any of the charged acts as a basis for inferring the tendency. Such an approach would have further suppressed the jury's appreciation of the two different standards of proof at play.

Ground 3 (related offences) did not need to be determined. Because the convictions on the sexual touching counts were set aside on Ground 2, the related offence convictions necessarily fell away as well. Wright J noted, however, that the trial judge's reasons on the related offences were sufficient given the limited submissions made at trial. Rigg J considered it was not possible to determine the adequacy of the reasons in the circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld on Ground 2.
  • Convictions on counts 2, 4, and 6 (sexual touching) set aside.
  • Convictions on sequences 5, 7, and 9 (common assault, related offences) set aside.
  • A retrial was ordered.

Key Takeaways

  • Where charged acts are relied upon as tendency evidence, the tendency direction must remind the jury that it must ultimately be satisfied beyond reasonable doubt of the accused's guilt on each individual count. Failure to include this reminder creates a real risk of deflecting the jury from its fundamental task, even where the standard of proof is addressed elsewhere in the summing up.
  • The Court of Criminal Appeal applied the High Court's decision in The King v AR [2026] HCA 10, reinforcing the framework established in DPP v Roder regarding the structure of tendency directions and the distinct standards of proof applicable to tendency reasoning and the ultimate question of guilt.
  • A heightened risk of jury deflection from the proper standard of proof arises where tendency evidence derives from a single complainant and involves a small number of charged acts, as opposed to cases involving multiple complainants or a large body of tendency evidence.
  • Inconsistencies in a young complainant's evidence concerning peripheral details do not necessarily render guilty verdicts unreasonable, particularly where the jury had the advantage of observing the witness and the inconsistencies are explicable by the complainant's age.
  • A jury's acquittal on more serious charges and conviction on lesser alternatives does not, without more, demonstrate a fundamental credibility problem. The Court of Criminal Appeal found that such a verdict pattern may have a rational explanation consistent with a proper assessment of the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 66DA(a)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5AA(1), (7), 5AD, 6
- Criminal Procedure Act 1986 (NSW), ss 166–168
- Evidence Act 1995 (NSW)

Key cases:
- The King v AR [2026] HCA 10
- Director of Public Prosecutions v Benjamin Roder (a pseudonym) (2024) 281 CLR 18; [2024] HCA 15
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Davis v R [2024] NSWCCA 120
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- Brawn v The King [2025] HCA 20; 99 ALJR 872
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53