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Court of Criminal Appeal 8 May 2026

SC v R

[2026] NSWCCA 54

Sexual offences

Citation: SC v R [2026] NSWCCA 54
Court: Court of Criminal Appeal (NSW)
Date: 8 May 2026
Judge(s): N Adams CJ at CL at [1]; Fagan J at [72]; Boulten J at [114]

Background

The applicant, SC, was convicted after a judge-alone trial of seven counts of sexual offences against his two biological daughters, GC (then aged 17) and MC (then aged 7). Both complainants have Autism Spectrum Disorder, with GC also having a moderate cognitive impairment and MC having selective mutism. The applicant himself was found to have an intellectual disability placing him in the bottom 10th percentile compared to his peers.

The trial judge acquitted the applicant of four counts but convicted him on the remaining seven, all of which pertained to a single occasion in early 2018 when the applicant allegedly sexually assaulted both daughters at the same time. The applicant was sentenced to an aggregate term of seven years and nine months' imprisonment with a non-parole period of four years and three months. He had already served his entire non-parole period by the time of this appeal.

The allegations arose shortly after the applicant left the family home following allegations of physical assault made by SP, the complainants' mother and the applicant's former wife. The trial judge made significant adverse credit findings about SP. This was the applicant's third appeal to the Court of Criminal Appeal since his arrest in October 2018.

  • Whether the guilty verdicts on the seven remaining counts were unreasonable and could not be supported having regard to the evidence at trial, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether, on the Court's own independent assessment of the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt of the applicant's guilt.
  • What significance should attach to the trial judge's acquittals on counts 1 to 4, and whether the Markuleski direction was properly applied to the relationship between those acquittals and the remaining convictions.
  • Whether the risk of contamination of the complainants' evidence by SP (which grounded the acquittals on counts 1 to 4) also affected the evidence supporting counts 5 to 11.
  • Whether the rule in Browne v Dunn was breached by the failure to put the proposition of coaching directly to SP in cross-examination.
  • Whether any advantage held by the trial judge in viewing recorded interviews was capable of resolving the Court's doubt about the applicant's guilt.

Decision

The Court unanimously granted leave to appeal, allowed the appeal, and entered verdicts of acquittal on all seven counts. Boulten J delivered the principal reasons, with N Adams CJ at CL and Fagan J agreeing and providing additional reasons.

The Court applied the principles from M v The Queen, Pell v The Queen, Dansie v The Queen, and R v ZT, confirming that the appellate court's task on an unreasonable verdict ground is not to identify errors in the trial judge's factual findings. Instead, the Court must independently assess whether the totality of the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to guilt. Where there is an active challenge to a witness's credibility, the Court is not bound by the trial judge's findings and may make its own assessment.

Three aspects of the Crown case were of particular concern. First, MC's evidence was exculpatory of the applicant: she said the applicant had not assaulted either her or GC. The trial judge made no findings about this evidence but convicted on the basis of GC's evidence alone. Second, the acquittals on counts 1 to 4 were based on the trial judge's inability to exclude the possibility that SP had contaminated GC's evidence, yet all eleven counts relied heavily on the same evidence from GC. The trial judge stated the Markuleski direction (which requires consideration of whether acquittals on some counts undermine the reliability of evidence supporting remaining counts) but did not apply it to the relationship between the acquittals and the remaining convictions. Third, a similar contamination complaint applied to counts 5 to 11 as had grounded the acquittals on counts 1 to 4.

On the Browne v Dunn issue, the Court (per Boulten J, with N Adams CJ at CL agreeing) held that while SP was not bluntly challenged with the positive assertion that she coached the complainants, the cross-examination was sufficient to signal the applicant's case. There was no unfairness of the kind the rule was designed to guard against, and specific questions need not always be put to ensure compliance. The Court's doubt as to the applicant's guilt was not resolved by any advantage enjoyed by the trial judge, including the benefit of viewing recorded interviews. Ultimately, it was a doubt the trial judge ought also to have held.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal allowed.
  • Convictions on counts 5 to 11 set aside.
  • Verdicts of acquittal entered on all seven counts.

Key Takeaways

  • Following Dansie and R v ZT, an appellate court considering an unreasonable verdict ground after a judge-alone trial must independently assess whether the totality of the evidence is sufficient in nature and quality to eliminate reasonable doubt, rather than focusing on whether the trial judge's factual findings were erroneous.
  • The Court of Criminal Appeal held that where a trial judge acquits on some counts because of a risk of contamination of a key witness's evidence, and the remaining counts rely on the same witness's evidence, it is not possible to examine those remaining counts without having regard to the acquittals and the reasons for them. The Markuleski direction required genuine application, not merely recitation.
  • In cases involving an active challenge to a witness's credibility, the appellate court is not bound by the trial judge's credibility findings and may form its own assessment of the evidence.
  • Compliance with the rule in Browne v Dunn does not always require that specific positive propositions be put in cross-examination, provided the cross-examination fairly signals the challenging party's case so that no unfairness arises.
  • In entering verdicts of acquittal on all seven counts, the Court concluded that the trial judge's advantage in viewing recorded interviews was not capable of resolving the doubt arising from the totality of the evidence, including the exculpatory testimony of one complainant, the risk of contamination by a third party, and the significance of the acquittals on related counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61J
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 161A
- Evidence Act 1995 (NSW), ss 13, 97
- Supreme Court (Criminal Appeal) Rules 2021, r 3.5

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- R v ZT (2025) 281 CLR 137; [2025] HCA 9
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MWJ v The Queen [2005] HCA 74; (2005) ALJR 329
- R v Birks (1990) 19 NSWLR 677
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Browne v Dunn (1893) 6 R 57
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Radburn (a pseudonym) v R [2025] NSWCCA 125
- SC v R [2023] NSWCCA 111