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Supreme Court 18 February 2026

T C v Director of Public Prosecutions

[2026] NSWSC 86

Theft & property

Citation: T C v Director of Public Prosecutions [2026] NSWSC 86
Court: Supreme Court of New South Wales
Date: 18 February 2026
Judge(s): Ward P

Background

This case concerned an appeal against conviction by a young person (referred to only as "the appellant" due to statutory suppression requirements under the Children (Criminal Proceedings) Act 1987 (NSW)). On 18 December 2024, the President of the Children's Court found the appellant guilty, following a judge-alone trial, of eleven property offences committed in the early hours of the mornings of 2 and 4 September 2024 at various residential properties in the Newcastle area.

The central issue at trial was identification. The prosecution case relied primarily on CCTV footage captured at or near the properties where the offences occurred, together with evidence obtained during the execution of a search warrant at a house where the appellant was found. The CCTV footage showed up to five persons involved in the offending, with two or three persons entering various properties. The prosecution alleged the appellant was a balaclava-clad person visible across multiple pieces of footage, identified by reference to clothing (a blue Nike top on 2 September and a two-toned top on 4 September), build, height, and partial facial features visible through the balaclava.

Because the trial judge — the President of the Children's Court — holds office as a judge of the District Court, the appeal was taken to the Supreme Court rather than the District Court. The appeal proceeded as a rehearing on the evidence given below, pursuant to sections 11 and 18 of the Crimes (Appeal and Review) Act 2001 (NSW).

  • Whether the trial judge erred in finding it was established beyond reasonable doubt that the appellant was the offender depicted in the CCTV footage on 2 and 4 September 2024.
  • Whether the trial judge committed discrete errors in reasoning that contributed to the identification finding, including:
  • Whether the person in the blue Nike top across different pieces of CCTV footage from 2 September was the same person;
  • Whether the identification of a co-offender ("R") in the footage improperly influenced the identification of the appellant;
  • Whether the discovery of clothing at the premises where the appellant was found could properly bear probative weight;
  • Whether the appellant's association with another person ("J") could, as part of circumstantial reasoning, support identification beyond reasonable doubt; and
  • Whether the trial judge mischaracterised the applicable standard of proof.

Decision

Ward P carefully reviewed all of the CCTV footage — both in court and in chambers — and addressed each of the discrete errors alleged by the appellant.

On two of the alleged errors, her Honour found no fault with the trial judge's reasoning. First, the trial judge did not err in concluding that the person wearing the blue Nike top across different footage from 2 September was the same individual; the clothing, build, and movements across the footage supported that finding. Second, the identification of "R" (a co-offender) in the footage did not produce error and was not determinative in linking the person in the blue top on 2 September to the person in the two-toned top on 4 September.

However, Ward P found that the trial judge did err in two respects. The trial judge accorded probative weight to the discovery of clothing at the premises (referred to as the "Robert Close premises") that matched clothing visible in the CCTV footage. Ward P held this was an error — the mere presence of matching clothing at a premises where the appellant was found was insufficient to bridge the identification gap. Additionally, the appellant's association with "J" (a person with whom the appellant had been staying) was insufficient, even as part of circumstantial reasoning, to prove beyond reasonable doubt that the appellant was the offender in the relevant footage.

On the question of whether the trial judge mischaracterised the standard of proof, Ward P noted that the trial judge's ex tempore remarks — delivered directly to the appellant — included a statement that her task was to "look for reasons to find him innocent." While this was a fundamental mischaracterisation of the task, Ward P accepted that the trial judge nonetheless correctly recognised and sought to apply the criminal standard of proof. The mischaracterisation was therefore not, of itself, dispositive.

Ultimately, undertaking the required review of the totality of the evidence, Ward P concluded that the prosecution had not established beyond reasonable doubt that the appellant was the person depicted in the blue top on 2 September 2024 or the two-toned top on 4 September 2024. The CCTV footage — much of it infrared, showing balaclava-clad persons with limited visible facial features — together with the circumstantial evidence, was simply not sufficient to meet the criminal standard. The appeal was allowed.

Orders Made

  • Appeal allowed.
  • Convictions on sequences 1, 2, 3, 4, 5, 6, 7, 11, 12, 13, and 14 set aside.

Key Takeaways

  • The Supreme Court held that particular caution must be exercised with CCTV identification where footage shows individuals whose faces are substantially obscured (for example, by balaclavas), and where identification rests on general features such as clothing, build, and limited facial characteristics visible through coverings.

  • Discovery of clothing at premises where the accused was located, even where it matched clothing visible in CCTV footage, carried insufficient probative weight as to identity, particularly where the clothing was commonplace and the link between the accused and the specific items was not clearly established.

  • An accused person's association with others connected to offending, while potentially relevant, could not bridge an identification gap on its own or as one strand of circumstantial reasoning where the other strands were insufficiently strong.

  • In addressing the trial judge's misdescription of the standard of proof in ex tempore remarks, the Court acknowledged the concern and subjected the finding to close appellate scrutiny, but concluded that such a misstatement is not necessarily fatal if the correct standard was in fact recognised and applied.

  • Under s 18 of the Crimes (Appeal and Review) Act 2001, the Court confirmed that a rehearing requires the appellate court to conduct its own independent assessment of the evidence while giving appropriate weight to the trial judge's findings, noting that this is not a hearing de novo but that deference is not required where the evidence is insufficient.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Children's Court Act 1987 (NSW), s 22A
- Children's Court Regulation 2024, cl 4
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 11, 18
- Criminal Procedure Act 1986 (NSW), s 133

Key Cases:
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- McNab v Director of Public Prosecutions (2021) 106 NSWLR 430; [2021] NSWCA 298
- Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362
- Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39
- PD v Director of Public Prosecutions (NSW) [2025] NSWSC 16
- Domican v The Queen (1992) 173 CLR 555
- Alexander v The Queen (1981) 145 CLR 395
- Hancock v R [2025] NSWCCA 213
- MF v R [2024] NSWCCA 42
- Tukuafu v R [2024] NSWCA 84