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Court of Criminal Appeal 13 May 2026

Jha v The King

[2026] NSWCCA 55

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPLICANT AND COMPLAINANT GAVE EVIDENCE CONTEMPORANEOUS COMPLAINT EVIDENCE WHETHER MISCONDUCT BY POLICE

Citation: [2026] NSWCCA 55
Court: Court of Criminal Appeal (NSW)
Date: 13 May 2026
Judge(s): Leeming JA; Yehia J; Sweeney J

Background

The applicant sought leave to appeal against his conviction by a District Court jury on one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The conviction followed a six-day trial concerning events on 21 August 2021. The applicant and complainant had met through an online dating application and met in person twice, with the alleged offence occurring at the applicant's home on the second occasion.

It was not in dispute that the pair engaged in consensual acts of sexual intimacy, including cunnilingus, or that the applicant thereafter engaged in penile-anal sexual intercourse with the complainant. The central issue at trial was whether the Crown could establish beyond reasonable doubt that this intercourse occurred without the complainant's consent and that the applicant knew she was not consenting. The Crown's case was that the complainant expressly and repeatedly refused consent to any act involving penetration.

The applicant was sentenced to three years and six months' imprisonment with a non-parole period of two years and three months. He appeared before the Court of Criminal Appeal unrepresented, having been refused assistance by Legal Aid on the basis that no grounds for appeal were identified. The applicant filed his notice of appeal shortly after his release on parole, requiring a substantial extension of time. The Court indicated it would determine the grounds on their merits.

  • Whether police misconduct occurred in relation to the applicant's electronically recorded interview, including whether the applicant was adequately advised of his right to legal representation
  • Whether the applicant's trial barrister engaged in misconduct or incompetent representation
  • Whether prosecutorial misconduct occurred during the trial
  • Whether evidence was improperly admitted or excluded at trial
  • Whether the evidence was sufficient to support the guilty verdict (treated as a ground that the jury's verdict was unreasonable)
  • Whether the trial judge correctly directed the jury on the issue of consent
  • Whether procedural fairness was afforded to the applicant at trial

Decision

On the allegation of police misconduct, the Court found this ground lacked factual foundation. The transcript of the electronically recorded interview showed that the applicant was asked whether he wished to speak to a lawyer, confirmed he did not wish to do so, and stated at the conclusion of the interview that he had participated of his own free will and had no complaints about the interview's conduct. The applicant had also acknowledged receiving, having read to him, and understanding a written form of rights. There was no evidence (as opposed to bare assertion in submissions) of anything improper said or left unsaid by police.

The Court addressed the applicant's multiple post-judgment submissions, which were filed without leave. Citing Eastman v DPP (ACT) (2003) 214 CLR 318, the Court noted that submissions supplied after oral argument without leave are impermissible and potentially unfair. However, given the applicant's unrepresented status and the unusual circumstances, the Court exercised its discretion to have regard to those submissions. The Court also dealt with three affidavits and two statutory declarations filed after trial, to which the Crown objected.

The Court treated the applicant's submissions about evidentiary insufficiency as, in substance, a ground that the verdict was unreasonable, following the Crown's submission to that effect. The Court considered the evidence before the jury, including contemporaneous text messages between the parties, CCTV footage, complaint evidence from the complainant's friends, the complainant's communications with a general practitioner, and a pretext call made by the complainant to the applicant. The applicant had conceded that he gave incorrect answers during his police interview when confronted with the complainant's account.

The Court structured its analysis by first addressing the complaints external to the trial (police misconduct, defence counsel misconduct, and prosecutorial misconduct), then turning to the evidence and its adequacy, and finally considering the trial judge's directions to the jury on consent. Across each of these grounds, the Court found no basis for disturbing the conviction.

Orders Made

  • The appeal against conviction was dismissed
  • No appeal against sentence was pursued (the sentence having been substantially served)

Key Takeaways

  • Bare assertions in an applicant's submissions, unsupported by evidence, are insufficient to establish police misconduct in the conduct of an electronically recorded interview, particularly where the interview transcript itself demonstrates compliance with procedural requirements.
  • The Court of Criminal Appeal held that submissions filed after judgment is reserved without leave are impermissible, even in appeals against conviction, citing Eastman v DPP (ACT). However, in the unusual circumstances of an unrepresented applicant, the Court exercised its discretion to consider the material.
  • Applying the approach in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd and Tarrant v R, the Court treated the unrepresented applicant's submissions about evidentiary inadequacy as, in substance, a challenge to the reasonableness of the verdict.
  • Appropriate latitude was afforded to the unrepresented applicant, including permitting extended reply submissions and considering post-hearing materials, while the Court noted the limits of that indulgence and the obligations on all litigants.
  • The applicant's concededly incorrect answers in his police interview, when confronted with the complainant's account, formed part of the evidentiary landscape considered in assessing the reasonableness of the jury's verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61HE, 61AG(9), 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 292A

Cases:
- Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
- Dhankhar v R [2023] NSWCCA 67
- Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Lane [2011] NSWCCA 157; 221 A Crim R 309
- Regina v Lucas (Ruth) [1981] QB 720
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Tarrant v R [2018] NSWCCA 21
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- ZT v R [2025] NSWCCA 193