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Court of Criminal Appeal 29 May 2026

Ombelli v R

[2026] NSWCCA 65

Sexual offences

Citation: [2026] NSWCCA 65
Court: Court of Criminal Appeal (NSW)
Date: 29 May 2026
Judge(s): Adamson JA (at [1]), Roberts J (at [213], agreeing), R A Hulme AJ (at [214], agreeing)

Background

The applicant was convicted by a jury in the District Court of four counts of sexually touching a child contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The offences were alleged to have occurred between May 2019 and August 2020, when the complainant was aged 10 or 11. The applicant was a friend of the complainant's stepfather and frequently stayed overnight at the stepfather's residence in Seven Hills, where the complainant lived.

The applicant represented himself at trial, which took place in February 2024. On appeal, he was represented by the Public Defenders Office. Each ground of appeal arose, directly or indirectly, from the circumstance of self-representation. The notice of appeal was filed significantly out of time, owing to delay caused by a solicitor briefing barristers who retained the brief but were unable to prepare the appeal within the required timeframe.

  • Whether the complainant's responses to propositions put in cross-examination constituted "identification evidence" within the meaning of the Evidence Act 1995 (NSW), thereby requiring exclusion or a specific identification direction.
  • Whether the trial judge's directions to the jury on identification were sufficient to ensure a fair trial.
  • Whether the trial judge erred in permitting the Crown to make a closing address where the accused was self-represented.
  • Whether the trial judge failed to take appropriate steps to ensure the self-represented applicant had sufficient information about court practice and procedure, or to exclude allegedly objectionable evidence.
  • Whether the cumulative effect of any errors or irregularities occasioned a miscarriage of justice warranting a retrial.

Decision

The Court of Criminal Appeal granted leave to appeal (both on the merits and for the out-of-time filing) but dismissed the appeal on all grounds.

Identification evidence (grounds 3 and 4). The Court held that the complainant's evidence did not fall within the statutory definition of "identification evidence" in the Dictionary to the Evidence Act. Her evidence amounted to no more than responses to propositions put during cross-examination that reflected the Crown case. It was not an assertion that the applicant was a person present at the scene of the offences as the definition requires. The provisions rendering such evidence inadmissible (s 114) therefore did not apply. As to the trial judge's identification direction, the Court found no material deficiency. The direction was sufficient to warn the jury of the need for caution. The Court observed that had the trial judge done more to highlight the complainant's evidence, it would only have emphasised the strength of the prosecution case.

Crown closing address (ground 2). The Court held that the trial judge did not err in permitting a Crown closing address. The trial judge considered that the applicant's own closing would benefit from first hearing the Crown's recitation of the evidence relied upon for each count and for the inference that the applicant was the assailant. There was also a risk that procedural fairness would be compromised if the applicant encountered these matters for the first time during the summing up, to which he would have had no right of reply. The Crown's closing was limited to a recitation of the evidence, which the Court found involved no unfairness.

Allegedly objectionable evidence and general fair trial obligations (ground 1). The Court found that the trial judge was not in a position to determine whether the exclusion of allegedly objectionable evidence would have been more beneficial to the applicant's case. No miscarriage of justice was occasioned by the admission of the material. The applicant did not establish that the admission of any allegedly inadmissible evidence realistically affected the jury's reasoning to its verdict.

Cumulative effect (ground 5). Because no individual error was made out, the cumulative ground also failed.

Orders Made

  • Leave to appeal granted (including an extension of time for the out-of-time notice of appeal).
  • Appeal dismissed.
  • Convictions on all four counts affirmed.

Key Takeaways

  • A complainant's responses to propositions put during cross-examination do not constitute "identification evidence" under the Evidence Act 1995 (NSW) where they amount to no more than agreement with elements of the Crown case, rather than an independent assertion that the accused was the person present at the scene of the offence.
  • In trials involving a self-represented accused, permitting the Crown to make a closing address may serve the accused's interests by allowing them to hear the evidence relied upon before making their own closing, and by preserving procedural fairness that might otherwise be compromised if the accused first encountered those matters in the summing up.
  • No miscarriage of justice was established where the trial judge could not determine whether excluding allegedly objectionable evidence would have been more beneficial to the self-represented accused's case, and the applicant did not show that the evidence realistically affected the jury's reasoning.
  • The Court of Criminal Appeal confirmed that a trial judge's obligation to ensure fairness for a self-represented accused does not extend to advising on how to run the defence case, but does require adequate explanation of court procedures, the right to object to evidence, and the mechanics of cross-examination.
  • Delay in filing a notice of appeal caused by counsel's professional commitments after receiving a brief was treated as sufficient justification for an extension of time, where the Crown did not oppose leave except on the merits.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66DB
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 294C, 294CB, 294I, 306M, 306V, 306ZL
- Evidence Act 1995 (NSW), ss 38, 41, 43, 44, 66, 76, 97, 97A, 101, 114, 115, 116, 189
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Key cases:
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- Trudgett v R (2008) 70 NSWLR 696; [2008] NSWCCA 62
- Walford v Director of Public Prosecutions (NSW) (2012) 82 NSWLR 215; [2012] NSWCA 290
- Director of Public Prosecutions v Alberto Bass (a pseudonym) [2016] VSCA 110
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- R v Zorad (1990) 19 NSWLR 91
- R v Macdonald; R v Maitland (No 9) [2022] NSWSC 1449
- MS v R [2017] NSWCCA 252
- TS v R [2022] NSWCCA 222
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Browne v Dunn (1893) 6 R 67