Carr v R

Citation: Carr v R [2026] NSWCCA 5
Court: Court of Criminal Appeal (New South Wales)
Date: 6 February 2026
Judge(s): Ball JA at [1]; N Adams CJ at CL at [2]; Sweeney J at [156]

Background

The applicant was an inmate at the Mid North Coast Correctional Centre in August 2021. She stood trial alongside two co-accused — fellow inmates — on charges arising from an incident in which the complainant, also an inmate, was physically and sexually assaulted. The Crown alleged that the applicant and her co-accused, acting pursuant to a joint criminal enterprise, lured the complainant to the applicant's cell, physically assaulted her, and then forcibly removed drugs that were concealed in the complainant's vagina.

The indictment contained four alternative counts against all three accused. Count 1 was the most serious: aggravated sexual assault in company, contrary to s 61JA(1) of the Crimes Act 1900 (NSW), which required proof that the accused recklessly inflicted actual bodily harm immediately before the sexual assault. Counts 2 and 3 were lesser sexual assault offences, and count 4 was assault occasioning actual bodily harm in company. Before the jury panel, the applicant and one co-accused pleaded guilty to count 4 but maintained not guilty pleas to counts 1, 2 and 3. The Crown did not accept the guilty plea in full satisfaction of the indictment, and the trial proceeded.

Following a 27-day trial, a majority jury verdict of ten out of eleven found all three co-accused guilty of count 1. The applicant was sentenced to five years and nine months' imprisonment with a non-parole period of three years and two months. She was released on parole in December 2024. Her appeal focused solely on the adequacy of the trial judge's directions to the jury — she did not contend that the conviction was unreasonable.

Legal Issues

• Ground 1: Did the trial judge err by failing to direct the jury that, to convict, they had to be satisfied the applicant agreed to inflict actual bodily harm on the complainant?

• Ground 2: Did the trial judge err by failing to direct the jury that the applicant herself was reckless as to the infliction of actual bodily harm at the time the relevant act was committed pursuant to the agreement — as distinct from the recklessness of any co-accused?

• Ground 3: Did the trial judge err by failing to direct the jury that, to convict, they had to be satisfied the applicant had agreed to an act of penetration of the complainant's vagina?

• A preliminary question cut across all three grounds: did the applicant's plea of guilty to count 4 (assault occasioning actual bodily harm in company) effectively remove the element of reckless infliction of actual bodily harm as a real and disputed issue at trial?

• Did the failure of the applicant's trial counsel to object to the impugned directions bear on whether any miscarriage of justice occurred?

Decision

The Court (N Adams CJ at CL, with Ball JA and Sweeney J agreeing) granted leave to appeal but dismissed the appeal on all three grounds.

Grounds 1 and 2 — Directions on reckless infliction of actual bodily harm

The applicant argued that her guilty plea to count 4 (assault occasioning ABH in company) should have been treated as effectively conceding the element of reckless infliction of ABH under count 1, such that the trial judge needed only to direct the jury on the remaining elements. The Court rejected this, finding that the factual substratum underlying the guilty plea to count 4 was not identical to the factual substratum of the reckless infliction of ABH element under s 61JA(1). Count 4 required proof of an assault occasioning ABH; the aggravated sexual assault charge required proof of reckless infliction of ABH immediately before the sexual intercourse, a meaningfully different factual and legal proposition. The Court distinguished Kalbasi v Western Australia (2018) 264 CLR 62 and Agnew v R [2024] NSWCCA 5 on this basis.

On the substance of Ground 1, the Court held that the jury would have been in no doubt that the Crown needed to establish beyond reasonable doubt that the assault itself was the subject of the agreement forming the joint criminal enterprise. As to Ground 2, when the trial judge's directions were read together as a whole, the Court was satisfied that it was made clear to the jury that the element of recklessness as to the infliction of ABH related to the applicant's own state of mind, not that of any co-accused.

The Court also noted that the failure of trial counsel to object to the directions at the time was relevant. Relying on BQ v The King (2024) 279 CLR 124 and the line of authority in Germakian v R (2007) 70 NSWLR 467 and Aravena v R (2015) 91 NSWLR 258, the Court observed that the absence of complaint at trial may indicate that counsel perceived no unfairness in the atmosphere of the trial and that there was no miscarriage of justice.

Ground 3 — Directions on sexual intercourse

The applicant contended that the trial judge's use of the language of "exposure" to a sexual assault left open the possibility that the jury convicted the applicant without being satisfied she had agreed to an act of vaginal penetration. The Court, again examining the summing up as a whole rather than in isolated passages, was not satisfied that the directions left it open to convict on any basis other than that the applicant had reached an agreement to sexually assault the complainant. The impugned language, viewed in context, did not create any real risk that the jury applied a lesser standard.

Orders Made

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

Key Takeaways

• A guilty plea to an alternative count does not automatically remove related elements from dispute on a more serious charge. The Court of Criminal Appeal found that where the factual substratum of the plea differed from the factual substratum of the element in question on the primary count, the prosecution was still required to prove that element, and the trial judge was required to direct the jury accordingly.

• Joint criminal enterprise directions in the context of aggravated sexual assault remain a complex area susceptible to appellate challenge. The case illustrated the difficulty of directing juries on joint criminal enterprise, particularly regarding whose mental state must be proved and what the scope of the agreed criminal enterprise must encompass.

• In dismissing the appeal, the Court assessed the jury directions holistically. Isolated passages of a summing up will not ground an appeal if, when read in the context of the charge as a whole, the directions adequately conveyed the correct legal principles, consistent with the long-standing approach of reading directions as an integrated whole.

• No determinative weight was placed on the failure to object at trial, though it remained a relevant consideration. The Court acknowledged that the absence of an objection by experienced trial counsel did not preclude appellate review, but noted it may indicate that no unfairness was actually perceived at the time, and treated it as a factor in assessing whether a miscarriage of justice occurred.

• Under s 61JA(1) of the Crimes Act 1900 (NSW), the offence of aggravated sexual assault in company contains multiple elements requiring careful separation in jury directions. Where the Crown relies on joint criminal enterprise rather than direct physical perpetration, each element (sexual intercourse, absence of consent, knowledge of non-consent, infliction of actual bodily harm, and recklessness as to that infliction) must be separately addressed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61JA(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 7(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Key Cases:
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Agnew v R [2024] NSWCCA 5
- Germakian v R (2007)