Citation: KB v R [2026] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 6 July 2026
Judge(s): Ward P (leading judgment); Yehia J and R A Hulme AJ agreeing
Background
The applicant was tried by jury in the District Court of New South Wales on 11 counts of sexual offences and one count of assault occasioning actual bodily harm against his younger sister. The alleged offending occurred over a period of approximately two years, primarily while the family lived in Leeton, NSW, and the complainant was aged between 10 and 12 years old.
The jury acquitted the applicant on the first eight counts and convicted him on Counts 9 to 12: three counts of aggravated sexual intercourse without consent (under s 61J(1) of the Crimes Act 1900 (NSW)) and one count of assault occasioning actual bodily harm (under s 59(1)). An essential element of each offence was that the applicant was over 14 years of age at the time, because the Crown accepted that below that age it would otherwise need to rebut the presumption of doli incapax (the legal presumption that a child under 14 lacks criminal capacity).
The applicant was sentenced to community correction orders ranging from six months to three years and did not challenge the sentence. He sought leave to appeal against conviction on two grounds: that the guilty verdicts were inconsistent with the acquittals, and that they were unreasonable and unsupported by the evidence.
Legal Issues
- Whether the jury's guilty verdicts on Counts 9 to 12 were logically inconsistent with the acquittals on Counts 1 to 8, such that no reasonable jury could have arrived at those verdicts
- Whether the guilty verdicts were unreasonable or could not be supported by the evidence, including whether the evidence raised a reasonable doubt as to the applicant's age at the time of the offences
Decision
Ground 1: Inconsistent Verdicts
The Court held that the guilty verdicts on Counts 9 to 12 were not logically inconsistent with the acquittals on Counts 1 to 8. It was open to the jury to be satisfied of guilt beyond reasonable doubt on the later counts while entertaining reasonable doubt on the earlier ones. The applicant did not demonstrate that no reasonable jury, properly applying its mind to the facts, could have reached those conclusions.
The Court identified an eminently logical and reasonable basis for the acquittals: evidence from the complainant's cousin (MB) gave rise to a reasonable doubt about the timing of the earlier alleged offences, specifically whether the applicant was over 14 at the time those counts occurred. The not-guilty verdicts were consistent with the jury properly following the direction to consider each count individually (known as the Markuleski direction), rather than reflecting any wholesale rejection of the complainant's credibility.
Ground 2: Unreasonable Verdict
Conducting its own independent assessment of the evidence, the Court found it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on Counts 9 to 12. The age issue that created doubt for the earlier counts did not apply in the same way to the later counts, and that uncertainty could not be attributed solely to the jury's assessment of the complainant's credibility.
The Court accepted that the jury was well placed to assess the complainant's credibility in light of the inconsistencies raised by defence counsel at trial. None of the identified inconsistencies, including differences between the complainant's account and that of other witnesses, was sufficiently significant to require a reasonable doubt as to the applicant's guilt on the convicted counts. Ground 2 was not established.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Inconsistent verdicts will not vitiate a conviction where a logical and reasonable explanation for the divergent outcomes exists; the applicant bears the burden of demonstrating that no reasonable jury could have arrived at the combined verdicts.
- Acquittals on some counts in a multi-count trial do not necessarily signal a rejection of the complainant's overall credibility. Here, the acquittals were explicable by a distinct factual doubt about the applicant's age at the time of the earlier alleged offences.
- The Markuleski direction, which requires a jury to consider each count separately, supports rather than undermines the legitimacy of split verdicts in cases involving multiple counts of alleged offending over time.
- In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that each member of the bench conducted an independent assessment of the evidence, as required, before concluding the jury's verdicts were open on the evidence.
- Where a specific element (here, the applicant's age exceeding 14 years) differentiates counts from one another on the evidence, a jury may rationally convict on some counts while acquitting on others without those outcomes being regarded as inconsistent.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 38(a), 59(1), 61J, 578A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 293A
- Evidence Act 1995 (NSW), s 38
Cases
- MacKenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- Gilbert v The Queen (2000) 201 CLR 414
- MFA v The Queen (2002) 213 CLR 606
- M v The Queen (1994) 181 CLR 487
- Libke v The Queen (2007) 230 CLR 599
- Dansie v The Queen (2022) 274 CLR 651
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- DB v R [2026] NSWCCA 29
- Jha v R [2026] NSWCCA 55
- Kumar v R [2025] NSWCCA 119
- Al-Sheikh v R [2025] NSWCCA 205
- Brown v R [2025] NSWCCA 30
- HO v R [2023] NSWCCA 245
- Lee v R [2023] NSWCCA 203
- Goundar v R [2024] NSWCCA 45
- Ferguson v R [2024] NSWCCA 81
- Davis v R [2024] NSWCCA 120
- AS v R [2022] NSWCCA 291
- Cabot v R [2018] NSWCCA 265