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[2026] NSWCCA 41
Court of Criminal Appeal (NSW)
2026-04-17
Kirk JA at [1]; McNaughton J at [51]; McGuire J at [52]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lind v R [2026] NSWCCA 41
Hearing dates: 9 March 2026
Date of orders: 17 April 2026
Decision date: 17 April 2026
Before: Kirk JA at [1];
McNaughton J at [51];
McGuire J at [52]
Decision: (1) Grant leave to appeal on ground 1.
(2) Refuse leave to appeal on ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(3) Appeal dismissed.
(4) The two year term of imprisonment imposed by the District Court on 13 December 2024, with a non-parole period of 11 months, is taken to have commenced on 9 March 2026 such that the applicant will be eligible for parole on 8 February 2027.
Catchwords: CRIME – appeals – appeal against conviction – consistency of acquittal on count 1 with guilty verdicts on two other counts – timing of count 1 offending was raised by evidence and submissions, even though trial judge did not direct that time was of the essence – verdict capable of rational explanation by reference to the complainant’s own evidence about timing in relation to count 1 CRIME – appeals – appeal against conviction –different witness accounts of offending conduct on one count – no extended unanimity direction given or sought – leave required under r 4.15 – Crown relied on one act being proven – evidence did not involve alternative “mutually destructive” bases or create “materially different issues or consequences” –parties and trial judge recognised differences in witness accounts – no injustice to applicant in the atmosphere of the trial
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW) ss 66C(3), 66DB(a)
Criminal Procedure Act 1986 (NSW) s 16(1)(g)
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
Cases Cited: AKB v R [2024] NSWCCA 169
Al-Sheikh v R [2025] NSWCCA 205
Barney v R [2023] NSWCCA 85
R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177
R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299
Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130
Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52
Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179
Category: Principal judgment
Parties: Connor Lind (Applicant)
The Crown (Respondent)
Representation: Counsel:
Mr S Howell (Applicant)
Mr C Young (Respondent)
Solicitors:
Mitchell & Co Lawyers (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)
File Number(s): 2021/227966
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant, Connor Lind, faced trial by jury in the District Court of five counts of a sexual nature involving two girls under the age of 16 years, CL and AR. He was found guilty of three of those counts (being three of the four which related to CL – counts 2, 3 and 4) and not guilty of two.
Count 1, for which the applicant was found not guilty, alleged that he engaged in anal intercourse with CL. Count 2 related to sexual touching of CL under her underwear in the lounge room of the applicant’s home. Count 3 related to CL fellating the applicant in the bathroom of his home. Count 4 related to digital/vaginal intercourse with CL in his bedroom.
The applicant sought leave to appeal his convictions on two grounds:
Ground 1: The jury’s verdicts of guilty with respect to count 3 and count 4 are inconsistent with the jury’s verdict of not guilty with respect to count 1.
Ground 2: The trial judge erred in directing the jury in relation to count 2.
As to Ground 1, the applicant argued that proof of the three relevant counts relied upon the credibility of the complainant CL as a witness, and the evidence she gave with respect to count 1 was comparable to her evidence with respect to count 3 in terms of specificity and detail and was more specific and detailed than her evidence with respect to count 4. It was said that there was no rational explanation for the acquittal on count 1 other than doubts about CL’s credibility.
As to Ground 2, count 2 related to conduct while the applicant and CL were watching a movie with CL’s friends A and ES also in the room. ES gave evidence she saw the sexual touching. Her evidence was somewhat different from CL in relation to what the touching involved. The applicant argued that in that context an extended unanimity direction should have been sought by his counsel below, and should have been given in any event by the trial judge.
The Court (Kirk JA, McNaughton and McGuire JJ agreeing) held, granting leave to appeal on ground 1 but not ground 2 and dismissing the appeal:
As to ground 1
(1) Counts 3 and 4 (along with count 2) related to conduct which occurred on particular days which could be tied to other memorable events. By contrast, count 1 expressed a date range over the summer holidays. CL also expressed some uncertainty as to timing for the offence alleged in count 1. Counsel for the applicant at trial made submissions as to whether the offending could have occurred within the date range identified in the indictment, and the trial judge gave directions to the jury which fortified the importance of being satisfied as to the timing of the alleged offence. In this setting it would have been eminently reasonable for the jury to consider that it did matter whether any anal intercourse had occurred in the summer holiday period identified in the indictment. That was so even though no direction was sought or given that timing was of the essence. It was entirely plausible that the jury in fact believed CL’s evidence about the anal intercourse but considered that they should acquit the applicant on count 1 on the basis that they were not satisfied – given CL’s own evidence – that it occurred in the period identified in the indictment. There was thus a rational explanation for the acquittal on count 1 and the guilty verdicts on counts 3 and 4: at [17]-[32].
As to ground 2
(2) This case was not one where the Crown relied on discrete acts, proof of any one of which independently would entitle the jury to convict. The Crown relied on one act. The fact that there was somewhat different evidence between the witnesses as to precisely what occurred in the course of that act is a not uncommon occurrence in the course of a trial. This was not a case where the slightly different evidence involved alternative bases that were “mutually destructive”. Nor, given the nature of the single charge the applicant faced with respect to this event, is this a case where there were “materially different issues or consequences” depending on which version was accepted. The jury was not required to be unanimous as to the precise evidentiary route or pathway by which they concluded that the applicant had intentionally engaged in touching where that touching was sexual. That conclusion is not altered by the fact that on ES’s version the more serious offence of sexual intercourse – not charged by the Crown – would have been committed: at [38]-[42].
R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299; Zandipour v The Quee**n (2017) 53 VR 256; [2017] VSCA 179; R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177; Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130, referred to.
(3) In any event, the Crown made it clear that it was only relying on CL’s version as the basis for the charge, expressly recognising that ES’s account involved a more serious allegation which it was not making. An objection could have been made if the direction of the trial judge was seen as unfair by giving rise to overly broad or uncertain means of finding guilt. No such objection was made nor was any extended unanimity direction sought. The applicant therefore needs leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021. The lack of objection here does not appear to have manifested a choice made for some forensic advantage. But that is not the only consideration relevant to r 4.15. In all the circumstances, there is no reason to conclude that there was an injustice to the applicant in the atmosphere of the trial: at [43]-[46].
KIRK JA: The applicant, Connor Lind, faced trial by jury in the District Court of five counts of a sexual nature involving two girls under the age of 16 years, CL and AR. He was found guilty of three of those counts (being three of the four which related to CL) and not guilty of two (including the one charge relating to AR). On 13 December 2024 the trial judge, Pickering DCJ, sentenced the applicant to an aggregate sentence of two years imprisonment with a non-parole period of 11 months, to commence from that date. On the same day his Honour granted appeal bail. That bail was revoked on the joint application of the parties on the day this appeal was heard.
The applicant has sought leave to appeal his convictions on the following two grounds:
Ground 1: The jury’s verdicts of guilty with respect to count 3 and count 4 are inconsistent with the jury’s verdict of not guilty with respect to count 1.
Ground 2: The trial judge erred in directing the jury in relation to count 2.
The second ground involves an argument that the trial judge should have given an extended unanimity direction. No such direction had been sought. The applicant thus accepts that he needs leave to appeal on this ground under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Neither ground is made out. Leave to appeal should be granted with respect to the first but not the second. The appeal on ground 1 should be dismissed. I will address the two grounds in turn after first briefly setting out the context in which they arise.
At the time of the events in question the applicant was aged 19 and 20 years, the complainant CL was aged 14 years, and the complainant AR was aged 15 years.
The complainants were close friends with each other and with the applicant’s sister, A. The applicant and the complainants were all involved with cheerleading activities at a gym in northern Sydney. The gym was owned by Kate and Ma’afu Mafoa. The applicant worked at the gym and was involved with cheerleading teams in which the complainants participated. CL, as a friend of A, sometimes stayed overnight at the home in which A and the applicant lived. In November 2020 CL and the applicant became girlfriend and boyfriend, which lasted until early May 2021. None of these matters were in dispute. The applicant, who gave evidence, maintained that nothing of a sexual nature beyond kissing and cuddling had occurred between he and CL.
In March 2021 the nature of the relationship between the applicant and CL became a topic of discussion among members of the gym community. Kate Mafoa spoke to the applicant about the rumours. He denied being in a relationship with CL. CL’s mother was informed that somebody had reported an inappropriate relationship between CL and the applicant. CL’s mother spoke to CL who told her that she and the applicant were only friends.
In early May 2021 one of the gym’s employees advised Ms Mafoa that the applicant and CL had been having anal sex. Ms Mafoa advised CL’s parents about this. CL’s parents spoke to their daughter. CL told her parents that there was something going on between her and the applicant but nothing physical. Over the following two days CL made further disclosures to her mother.
CL was interviewed by police on 27 May 2021. The recording of that interview formed her evidence in chief at the trial. Charges were laid soon thereafter. Further evidence from CL was prerecorded in a hearing before Traill DCJ in March 2023. In May and July 2021 AR was also interviewed by police.
The jury trial took place in August and September 2024.
The counts on the indictment with which the applicant was charged, and the verdicts returned, were as follows:
| Count | Charge and brief particulars | Verdict | | 1 | Sexual intercourse with child under 16 years between 1 December 2020 and 7 February 2021 – s 66C(3), Crimes Act 1900 (NSW) Penile/anal intercourse with CL in applicant’s bedroom | Not guilty | | 2 | Sexually touch child under 16 years on 23 January 2021 – s 66DB(a), Crimes Act Applicant touches CL under her underwear in applicant’s lounge room | Guilty | | 3 | Sexual intercourse with child under 16 years between 19 and 20 March 2021 – s 66C(3), Crimes Act CL fellates applicant in bathroom of applicant’s home | Guilty | | 4 | Sexual intercourse with child under 16 years between 7 and 8 May 2021 – s 66C(3), Crimes Act Digital/vaginal intercourse with CL in applicant’s bedroom | Guilty | | 5 | Sexual intercourse with child under 16 years between 7 and 8 April 2021 – s 66C(3), Crimes Act Digital/vaginal intercourse with AR in applicant’s car | Not guilty |
[9] It was also not suggested that there was any legal or technical inconsistency in the verdicts. Rather, what was alleged was factual inconsistency, for which “the test is one of logic and reasonableness” in considering whether the verdicts can be reconciled: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 per Gaudron, Gummow and Kirby JJ at 366. If “there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted”: ibid at 367. After identifying some proper ways in which such a reconciliation may be achieved, their Honours went on to say as follows (at 368, citations omitted; see also [MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53] at [86]):
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.”
[10] Respect for the function of juries has led to a curial “reluctance to accept a submission that verdicts are inconsistent in the relevant sense”: Mackenzie at 367; see also MFA at [49] and [51] per McHugh, Gummow and Kirby JJ.
[11] There is a range of possible explanations for why a jury may reach different verdicts on different counts against the one accused, even in circumstances where the main or sole evidence against the accused is that of one complainant. Explanations which are consistent with a proper way of reconciling verdicts include the following (and see further R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [235]):
(1) Juries are commonly instructed to give separate consideration to each count and are told that the evidence of any witness may be accepted in whole or in part. Thus it is unsurprising, and not necessarily inconsistent, that juries may reach different verdicts by carefully weighing up the evidence on each count. As Gleeson CJ, Hayne and Callinan JJ said in MFA at [34]:
A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility.
(2) The jury may have taken “a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries”: Mackenzie at 367.
(3) Similarly, the jury may have exercised compassion, or a sense of proportion, by concluding that “although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number”: Mackenzie at 367-8, quoting with approval R v Kirkman (1987) 44 SASR 591 at 593; see also MFA at [85].
…
[13] There is no general rule that where multiple offences are alleged involving the one complainant, verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable and that the complainant is a person of damaged credibility: MFA at [35] and [89]; see recently eg Saunders v R [2022] NSWCCA 273 at [103]. The “significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case”: MFA at [34]; see also Markuleski at [65].
[14] There can be difficulties in identifying an explanation for why the jury reached the verdicts in question. The burden of persuasion in establishing inconsistency rests upon the applicant: Mackenzie at 368.
[130] Before [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56] dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.
The claimed inconsistency is as between the jury’s guilty verdict on counts 3 and 4 (relating respectively to fellatio and digital penetration) as compared to the verdict of not guilty with respect to count 1 (anal intercourse). The applicant does not rely on the guilty finding with respect to count 2 (sexual touching), nor on the not guilty finding with respect to count 5 (relating to the complainant AR).
In summary, the applicant’s arguments as to inconsistency were as follows:
Proof of all three relevant counts “relied on the word of CL”, having been “steadfastly denied” by the applicant. There was complaint evidence but no direct observational evidence from any other witness with respect to the three counts in question (as opposed to the position with respect to count 2).
The prosecutor said in his closing address that whether the sexual acts the subject of count 1, count 3 and count 4 took place was the “only issue” for the jury to decide, in circumstances where there was no dispute as to the age of the complainant. This point was reinforced by the trial judge’s direction that “the issue” in the trial with respect to those counts was “whether the Crown can prove factually on the evidence that those sexual intercourse allegations occurred”.
CL’s evidence with respect to count 1 was comparable to her evidence with respect to count 3 in terms of specificity and detail and was more specific and detailed than her evidence with respect to count 4. The complaint evidence is not a point of differentiation sufficient to account for the differential verdicts on the three counts.
There was no objective evidence for any of the three counts, yet the jury were prepared to accept the word of the complainant on two of the three. There was nothing to suggest that her evidence was more reliable with respect to counts 3 and 4 compared to count 1; she had actually expressed some uncertainty in her recollection about count 4. There is no rational explanation for the acquittal on count 1 other than doubts about CL’s credibility. The jury should have given the benefit of that doubt to the applicant with respect to counts 3 and 4.
The Crown made various arguments in response to the case put by the applicant. It is sufficient to focus just on matters relating to timing. Each of counts 3 and 4 – along with count 2 – identified conduct occurring on one particular night, as was set out in the indictment. In contrast, count 1 alleged that the conduct occurred “between 1 December 2020 and 7 February 2021”. Those dates were consistent with CL having said in her police interview that anal intercourse occurred in the summer school holidays.
Counts 3 and 4 – again, alike with count 2 – were each tied to the charged dates by other identified events. Count 3 occurred on a night when CL was staying at the applicant’s home having been out to see a particular movie with A. CL’s mother gave evidence that she had dropped CL off to see the movie on that night, and her memory was supported by having checked her phone messages. Count 4 occurred on a night which was memorable for two reasons: it was the last sleepover that CL had at that house before events blew up (and CL’s mother had text messages relating to the sleepover having occurred); and on that night CL, A and the applicant had gone to Manly, but the applicant’s mother texted them to leave as there had been a stabbing in that area that night, which was an event that they all recalled.
CL could also tie count 2 to a particular night because she had a dated photo which showed her, A and their friend ES together which reminded her of the occasion.
In contrast, in her police interview she said this as to the timing of the anal intercourse (which she said had only occurred on one occasion):
Q369 When did that happen?
A I don't remember. I think it was in school holidays, but - - -
Q370 Which school holidays?
A Ah, the big one, from, like between the two, between year 8 and 9. Like the summer holidays.
Q371 Oh, the summer holidays?
A Yeah, yeah.
Q372 What makes you remember it was then?
A I think that's just like um, like when we spent like the most time together, so I'm just, I'm just guessing.
Q417 Do you remember when this happened?
A I don't remember, I'm sorry.
Q418 That's O.K.
DETECTIVE SENIOR CONSTABLE MURRAY
Q419 She said in the summer holidays.
A It would have been summertime, yeah.
…
Q422 What were you doing before staying on this occasion?
A I don't remember this occasion.
CL had earlier told police that “the first time anything like happened [between her and the applicant] was the 6th of November”, and “he like asked me to be his girlfriend on the 28th” of November. The school holidays presumably commenced sometime in early to mid December 2020.
CL said she had told her friend AR the next time she saw her that she had had anal sex with the applicant. AR also told the police that CL had told her this, saying she thought the conversation had occurred in the holidays, and adding “I think it was before term 1 started”. CL also eventually told her mother in May 2021 that the applicant and she had had anal intercourse, although she did not say when.
There was thus evidence from CL and from AR that the alleged occasion of anal intercourse took place over the summer holidays. However, CL did express some uncertainty as to timing: “I think it was in school holidays”; “that's just like um, like when we spent like the most time together, so I'm just, I'm just guessing”; “I don't remember [when this happened]”; “I don't remember this occasion”.
Counsel for the applicant at the trial began her closing address by reference to count 1. She gave four reasons the jury should have a doubt about that count. The third was as follows (emphasis added):
The third reason as to why you would have doubt as to count 1 is because of the unlikelihood of anal sex happening so early in the relationship. [CL] said that the anal sex happened in the school summer holidays on a night when she slept over in [A’s] room afterwards. If the jury could be shown a document on the overhead projector.
HIS HONOUR: Sure.
HUTCHINSON: If that might be zoomed in. The seven dates beginning with 28 November 2020 and ending with 7 May 2021 are all of the dates on which [CL’s mother] told you that [CL] slept over at [A’s] house. You see there in red italics the start date for count 1 being 1 December 2020 which occurs before the first of the sleepovers and the end date for count 1 being 7 February 2021 which is after the third of the sleepovers. Only three of those sleepovers happened within the indictment period for count 1. 28 November, 7 December 2020, 22 January 2021. The first of those sleepovers on 28 November 2021 was the night of the national cheer competition and the night Connor and [CL] became boyfriend and girlfriend. [CL] was clear that the anal sex didn't happen on that night.
The last of those three sleepovers within the indictment period, 22 January 2021, is the night on which count 2 is alleged to have happened. That's the night on which [ES] stayed over. [CL] is also clear that the anal sex didn't happen on that night. That leaves only 7 December 2020. I submit that you would expect a believable progression of sexual activity for a 14 year old to go something along the lines of kissing, touching, nudity, digital penetration, masturbation maybe, then oral sex, before anal sex. Consistent with that [CL] explained to the police that the sexual activity started off with kissing and then, to use her words, as she got more comfortable more happened. She said it was not at the start but a few months into the relationship before she and Connor were regularly naked together.
But on the evidence the anal sex could only have happened on 7 December 2020. That is the very next sleepover after they became boyfriend and girlfriend. It is highly unlikely, I submit to you, that in the space of only nine days [CL] would become comfortable enough to do something as sexually adventurous and serious as anal sex.
Thus the applicant’s counsel made a clear attack on the Crown case on count 1 – in terms which might readily be considered persuasive – which focused upon the particular dates identified in the indictment.
In this Court counsel for the applicant submitted that no direction had been sought or given that time was of the essence. The Crown fairly said in response that “there was no legal discussion about time being of the essence, which is what one might expect if it was to become an element that had to be proved beyond reasonable doubt”. That no such direction was sought or given meant that the Crown did not have to prove that the offence had occurred within the particular time frame alleged in this case: note Criminal Procedure Act 1986 (NSW), s 16(1)(g); R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198 at [20]-[21]; Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52 at [83]-[84]. But there is no reason to infer that the jury knew that technical legal point. The fact remains that one of the four key reasons for having a doubt about count 1 that was given by the applicant’s counsel depended upon taking a strict approach to the dates identified in the indictment.
The trial judge provided the jury with a written directions document which identified the elements of the offences. It said of the sexual intercourse offences that there were two elements, the first of which was said to be: “That, at the time and place alleged, the accused had sexual intercourse with the complainant”. The document then expanded on the elements, reiterating the point with respect to the first element: “To satisfy this element, the Crown must prove beyond a reasonable doubt that at the time and place alleged, the accused had sexual intercourse with the complainant”. The point was reiterated – again, twice – in his Honour’s summing up. And when his Honour was summarising the submissions of the two sides he reminded the jury that counsel for the applicant had submitted in relation to count 1 that “you’d also be really concerned about the dating of that, whether it could have even logistically occurred within the concept of the timing of that relationship”.
It is true that the Crown Prosecutor said in closing, having noted that there was no dispute about the complainants’ ages, that: “The only issue is did the sexual acts take place”. That statement was not sufficient to tell the jury that the specific timing of any anal intercourse did not matter. And, of course, that statement was made prior to what was said by counsel for the applicant and prior to his Honour’s summing up.
The trial judge did also say this in explaining the first element of the sexual intercourse counts: “Of course, the issue in this trial is not whether as a matter of law sexual intercourse occurred, it’s whether the crown can prove factually on the evidence that those sexual intercourse allegations occurred.” That was said in a context where he was addressing what was “sexual intercourse at law”. It was made just after the statements he had made about proving the time and place of the intercourse beyond reasonable doubt. In context, it cannot be understood as communicating that the time identified in the indictment did not matter.
In this setting it would have been eminently reasonable for the jury to consider that it did matter whether any anal intercourse had occurred in the summer holiday period identified in the indictment. As noted, the evidence of CL on the point was somewhat equivocal. And the timing issue for count 1 was in marked contrast to the evidence relating to counts 2, 3 and 4. Each of those charges related to particular nights when CL stayed at the applicant’s home where the fact that she had done so on those nights was established by reference to other events. Count 1 related to a period of over two months, not tied to any other particular event or occurrence, and where CL said she was “just guessing” as to the timing.
Naturally enough, the trial judge also gave the usual directions about considering each count separately and not compromising or negotiating as to the different counts.
In the context outlined it is entirely plausible that the jury in fact believed CL’s evidence about the anal intercourse but considered that they should acquit the applicant on count 1 on the basis that they were not satisfied – given CL’s own evidence – that it occurred in the period identified in the indictment. There is thus a rational explanation for the acquittal on count 1 and the guilty verdicts on counts 3 and 4. It is not the case that the acquittal is attributable only, or principally, to doubt about CL’s credibility. Ground 1 is not made out.
Count 2 related to an allegation that the applicant had engaged in sexual touching of CL on an occasion whilst she was lying back against his chest on the couch, watching a movie on television, at the applicant’s home. CL’s friends A and ES were also in the room. A’s evidence was that she had fallen asleep on the couch whilst watching the movie. A friend of the applicant, Nathan, was also there for at least some of the time. He did not give evidence.
The applicant’s complaint is that an extended unanimity direction should have been sought by his representative below, and should have been given in any event by the trial judge, given the difference in the accounts given by CL and ES with respect to the event which was the subject of count 2.
The applicant’s written submissions on this issue were concise:
CL’s evidence with respect to count 2 was that the applicant, “wasn’t like fingering or anything” but that his hand was in contact with “the front bit of [her] stomach and then down a little bit”. CL said (clearly) that the applicant was not touching her vagina (“It wasn’t like my vagina”). She said that he was touching her “stomach and inner thigh” and under cross-examination said further that he “was touching, like, under my pants [but] above my vagina”. She said she was wearing underpants. The applicant’s hand was low enough to be touching her underneath those.
ES’s evidence with respect to count 2 was that the applicant was “fingering [CL] in the vagina”. She said CL was not wearing underpants. She could see the applicant’s finger or fingers inside CL’s vagina from the front, with her vagina visible.
The prosecution put its case on count 2 imprecisely in submitting, “the Crown case is that the accused touched [CL’s] vaginal area” but made it clear that it was the prosecution case that the evidence of CL “who says she wasn’t fingered” should be preferred “to what [ES] says she saw”. Despite the prosecution urging the jury to prefer CL’s evidence to that of ES, acceptance of either CL or ES’s evidence would entitle the jury to convict on count 2. Either the act of touching described by CL or the discrete act observed by ES went to proof of an essential ingredient of the offence charged i.e., that any touching the jury found proved was sexual touching.
The trial judge described CL’s evidence as the “primary basis” on which the prosecution sought to establish count 2, but did not direct the jury that it was the only factual basis on which count 2 could be established. Implicit in the directions to the jury on count 2 was that the jury could reject CL’s evidence and accept ES’s evidence as to the act of touching being a penetrative sexual act, and still find the offence proved. Given the nature of the defence case on count 2 (i.e., that CL was being touched but not under her pants), how CL was in fact being touched was a live issue for the jury to determine.
The trial judge told the jury they had “determine the facts” but it was necessary in the circumstances of this case to tell them that they could not convict the applicant on count 2 unless they agreed unanimously upon the factual foundation for the verdict. In other words, if six jurors accepted CL’s evidence and six jurors accepted ES’s evidence, then they would not be unanimous as to the factual foundation against which to consider the essential element of sexual touching. The failure to give the jury an extended unanimity direction was erroneous. The applicant’s conviction on count 2 should be quashed. The appropriate order under Ground 2 is an order that there be a re-trial of count 2.
The argument focuses on the fact that CL’s evidence was that the applicant had touched above her vagina but that his finger did not go inside her vagina, whilst ES’s evidence was that the applicant had been “fingering” CL. The applicant’s own evidence was that his hand would have been around the middle part of her stomach, “like, on the belly button”; that his hand had been sliding down in the direction of CL’s vagina, and that he pulled it back up; and that he never touched her vagina, nor had his hand down her pants.
As to the version the applicant gave, counsel for the applicant suggested that some jurors might have regarded that version as sufficient to make out the count. However, as he accepted, no suggestion was made at the trial that that account was enough of itself to lead to a finding of guilt. On the contrary, as the Crown pointed out, the trial judge gave a Liberato direction, which included his Honour saying that “if you believe [the applicant] was a truthful and reliable witness then that would be the end of these proceedings”. That account can therefore be set aside.
The applicant’s argument about the somewhat differing accounts of CL and ES is unpersuasive. An extended unanimity direction was not required. The issue was discussed in some detail in AKB v R [2024] NSWCCA 169 at [57]-[80] (Gleeson JA) and [124]-[130] (Dhanji J). Both parties here relied on the frequently cited summary of principle, distinguishing two types of case, expressed by Phillips and Buchanan JJ, with the agreement of Ormiston JA, in R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 (emphasis added):
[57] To sum up the foregoing, it seems that the cases give rise to two situations at least … The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on “unanimity” about one or other or more of those bases, at least if they do not “involve materially different issues or consequences”. … The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence”.
[84] … where the potential causes of the fatal injury were part of one continuous episode, and were not discrete acts or events, a direction is not required to be given to the jury that it must be unanimously satisfied beyond reasonable doubt as to the precise act that caused death. Such a direction is only necessary where, in the context of the facts, the separate potential causes of death could be described as discrete, whether separated as a matter of time or circumstance.
[260] In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation.
[261] In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree.
This case was not one where the Crown relied on discrete acts, proof of any one of which independently would entitle the jury to convict. The Crown relied on one act – of the same nature, but more confined than, the sort of continuous episode or conduct discussed in the two passages just quoted. The fact that there was somewhat different evidence between the witnesses as to precisely what occurred in the course of that act is a not uncommon occurrence in the course of a trial. This was not a case where the slightly different evidence involved alternative bases that were “mutually destructive”: cf R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177 at [3]-[5] (Kourakis CJ) and [306] (Peek J). Nor, given the nature of the single charge the applicant faced with respect to this event, is this a case where there were “materially different issues or consequences” depending on which version was accepted (quoting Walsh at [57]). If the acts had occurred as alleged by ES that was enough to establish the sexual touching charge, as the applicant accepted. That conclusion is not altered by the fact that on ES’s version the more serious offence of sexual intercourse – not charged by the Crown – would have been committed.
The case falls within the first broad category identified in Walsh and not the second. The jury was not required to be unanimous as to the precise evidentiary route or pathway by which they concluded that the applicant had intentionally engaged in touching where that touching was sexual.
In any event, the Crown made it clear that it was only relying on CL’s version as the basis for the charge, expressly recognising that ES’s account involved a more serious allegation which it was not making. The charge was summarised in the written directions document as being an allegation that the applicant “sexually touched the complainant by putting his hand on her stomach and inner thigh and his hand was going underneath her underwear (the lounge room incident)”. The Crown said in closing address that count 2 was a sexual touching and not a sexual intercourse charge, saying:
if fingering happened it would be a sexual intercourse count. The Crown relies on the account given by [CL], who says she wasn't fingered, in preference to what [ES] says she saw.
Though, in order to be fingered you have to have your hand on the vagina, you might think. So, what [ES] says, that’s the position of the hand fingering, you as a jury don’t have to be satisfied beyond reasonable doubt what [ES] says she saw, that is, fingering. As that is not the charge the subject of count 2. But what you have to be satisfied beyond reasonable doubt is that the accused intentionally, that is, not accidentally, sexually touched [CL], which on the Crown case is that the accused touched her vaginal area.
You’d be well aware that [ES] gave a version of where she claims that she saw Connor Lind with his right hand, being the one with the cast on – even though she did not give any evidence of seeing the cast – and then he was using that down – in [ES’s] opinion – around her vagina, and [ES], at least, believing that he was penetrating her, even though [CL] does not give that evidence at all. As I said, that is not what the Crown have relied on. The Crown have not charged him with sexual intercourse for this incident. They have charged him with sexually touch.
The requirements of the rule do “not constitute some mere technicality which may simply be brushed aside”: R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]. The absence of objection to directions can be taken into account as an indication that there was no injustice to the accused in the atmosphere of the trial: ARS v R [2011] NSWCCA 266 at [148]; Beattie v R [2021] NSWCCA 291 at [23]; GBF v R (2020) 271 CLR 537; [2020] HCA 40 at [25]. The discretion to grant leave will be exercised in the applicant’s favour where there has been a miscarriage of justice such that they have lost a real chance of acquittal: ARS v R at [147]-[148]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24].
The lack of objection here does not appear to have manifested a choice made for some forensic advantage. But that is not the only consideration relevant to r 4.15. The transcript suggests that the applicant was well represented at the trial. The applicant’s counsel now appearing did not suggest otherwise. He did argue that whether or not to seek an extended unanimity direction was a “nuanced issue that arises on the facts of particular cases where one has to have an eye for it when it comes up”. Yet it is apparent that the parties and the trial judge fully appreciated that that the accounts of CL and ES were somewhat different and that the Crown was putting its case in a particular way, relying on CL’s version. If the trial judge’s remark about “primary basis” had unduly muddied the waters about the case being put, that would not have been a subtle issue which might readily have been overlooked. In all the circumstances, there is no reason to conclude that there was an injustice to the applicant in the atmosphere of the trial.
Leave to appeal on ground 2 should be refused pursuant to r 4.15.
Leave to appeal should be granted on ground 1 but not ground 2. The appeal should be dismissed.
The trial judge noted in his sentencing judgment that the applicant had served no time in custody with respect to the three counts in question as at the day of sentencing (13 December 2024) and thus ordered that the applicant’s term of imprisonment was to commence on that day. As noted above, appeal bail was granted by the trial judge on the same day the applicant’s sentence was imposed. The appeal bail was revoked on the day this appeal was heard (9 March 2026) on, in effect, the mutual application of the parties. Reasons for that decision were delivered on the day. That application was made because the applicant had been arrested on other charges subsequent to the appeal bail being granted and bail had been refused on those charges. The effect of revoking the appeal bail was that the applicant immediately began serving the sentence that had been imposed.
In these circumstances, it is appropriate to make orders directed to the dates of the applicant’s sentence. The sentence imposed was an aggregate sentence of two years imprisonment with a non-parole period of 11 months. The orders of the Court should be as follows:
Grant leave to appeal on ground 1.
Refuse leave to appeal on ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Appeal dismissed.
The two year term of imprisonment imposed by the District Court on 13 December 2024, with a non-parole period of 11 months, is taken to have commenced on 9 March 2026 such that the applicant will be eligible for parole on 8 February 2027.
McNAUGHTON J: I agree with Kirk JA.
McGUIRE J: I agree with Kirk JA.
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Lind
R
(2015) 124 SASR 190
(2009) 74 NSWLR 299
(2019) 134 SASR 328
(2017) 53 VR 256
(1996) 190 CLR 348
(2002) 213 CLR 606
(2001) 52 NSWLR 82
(1987) 44 SASR 591
(1997) 191 CLR 439
(2007) 70 NSWLR 467
(2020) 271 CLR 537
(2017) 96 NSWLR 155