Saleh v R [2026] NSWCCA 42 | Case summary | Zoe

NSWNSWCCA

Saleh v R [2026] NSWCCA 42

[2026] NSWCCA 42

Court of Criminal Appeal (NSW)|2026-04-17|Before: Free JA, Yehia J, Hulme AJ

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-04-17

Before

Free JA, Yehia J, Hulme AJ

Catchwords

CRIME - appeals - appeal against conviction - unreasonable verdicts - inconsistency of jury verdicts - credibility of complainant's evidence - logical distinction explains differentiation

Source

Original judgment source is linked above.

Catchwords

CRIME - appeals - appeal against conviction - unreasonable verdicts - inconsistency of jury verdicts - credibility of complainant's evidence - logical distinction explains differentiation

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Saleh v R [2026] NSWCCA 42

Hearing dates: 11 March 2026

Date of orders: 17 April 2026

Decision date: 17 April 2026

Before: Free JA; Yehia J; R A Hulme AJ

Decision: (1) Leave to appeal against conviction and sentence granted.
(2) Appeal dismissed.

Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdicts – inconsistency of jury verdicts – credibility of complainant’s evidence – logical distinction explains differentiation
EVIDENCE – sexual experience – evidence inadmissible under s 294CB Criminal Procedure Act 1986 (NSW) – whether probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer
EVIDENCE – fresh and new evidence on appeal – whether evidence unavailable at trial caused miscarriage of justice – whether new evidence suggests the applicant’s guilt was not proven beyond reasonable doubt
CRIME – appeals – appeal against sentence – aggregate sentence - manifest excess – whether error in indicative sentence suggests error in aggregate sentence – whether judge erred in finding that personal circumstances were not mitigating
CRIME – appeals – manifest excess – whether judge erred in finding that one count warranted the maximum penalty – “reasonably open” test as correct standard for appellate review of factual error at sentence – whether judge erred in finding offending was of “worst category”

Legislation Cited: Crimes Act 1900 (NSW), ss 59(1), 61, 61I, 61J(1), 61JA, 61L, 91R(2), 249K(1)(a), 578A(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2) Criminal Appeal Act 1912 (NSW), ss 5AA, 5AD, 5(1)(c), 6(1), 292B Criminal Procedure Act 1986 (NSW), ss 166, 294CB, 294CB(4)(b)

Cases Cited: AA v R [2024] NSWCCA 132
AJ v R [2023] NSWCCA 158
Aslett v R [2006] NSWCCA 49
Astill v R [2024] NSWCCA 118
Barbaro v R (2014) 253 CLR 58; [2014] HCA 2
Benn v R [2023] NSWCCA 24
BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2026] NSWCCA 37
BW v R [2023] NSWCCA 146
Cook (a pseudonym) v R [2022] NSWCCA 282
DB v R [2026] NSWCCA 29
Delleci v R [2020] NSWCCA 4
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dorsett v R [2024] NSWCCA 192
Edwards v R [2026] NSWCCA 15
Fisher v R [2026] NSWCCA 27
Franklin v R [2021] NSWCCA 260
Hancock v R [2025] NSWCCA 213
Hili v R; Jones (2010) 242 CLR 520; [2010] HCA 45
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Jackson v R [2021] NSWCCA 15
JBS Australia Pty Ltd v SafeWork NSW [2024] NSWCCA 209
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kelly v R [2023] NSWCCA 104
Kelly v R [2024] NSWCCA 101
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Kirby v R [2021] NSWCCA 162
KS v R [2024] NSWCCA 147
Kumar v R [2025] NSWCCA 119
Lawavou v R [2025] NSWCCA 35
Lee v R [2020] NSWCCA 244
Lee v R [2023] NSWCCA 70
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
McTague v R [2020] NSWCCA 83
Mehajer v R [2026] NSWCCA 14
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nair v R [2025] NSWCCA 136
Nataucu v R [2025] NSWCCA 94
Newman (a pseudonym) v R [2019] NSWCCA 157
PD v R [2012] NSWCCA 242
PN v R [2024] NSWCCA 86
R v Abou-Chabake [2004] NSWCCA 356; (2014) 149 A Crim R 417
R v Attwater; R v Maris [2017] NSWSC 1710
R v Barrett [2021] NSWSC 126
R v Bikic [2002] NSWCCA 227
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
RA v R [2024] NSWCCA 149
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
SC v R [2023] NSWCCA 60
Shalida v R [2024] NSWCCA 55
Simon v R [2013] NSWCCA 328
Smith v R [2025] NSWCCA 104
Stevenson v R [2022] NSWCCA 133
The King v ZT (2025) CLR 137; [2025] HCA 9
Thorne v R [2007] NSWCCA 10
Wright v R [2025] NSWCCA 108
Xie v R [2021] NSWCCA 1

The complainant and a female friend planned a three-night cruise in late 2016. Because the applicant had a practice of going through her phone, he became aware of their plans and “insisted that he had to go as well”. The applicant was accompanied by a male friend, Mahir. The complainant shared a cabin with her son. On the first day she refused the applicant’s demand that he stay in her cabin. He was verbally abusive and threatened to throw her off the ship. The second day he forced his way into her room, accusing her of having another man in there. She said, “he stank of alcohol”.
Her son was asleep on the sofa bed. The applicant fell asleep on the bed for a few minutes. He then woke up and insisted that she put on lingerie he had bought for her. He made her have sex with him while her son was in the room.
According to the records of the Carnival Cruise Line, this three-night voyage, called a “Cruise to Nowhere” departed on 27 October 2016. Three cabins were booked in the names of the complainant and her son, the complainant’s friend and another, and the applicant and Mahir.
In cross-examination, the complaint denied a proposition that she had an enjoyable time on the cruise with the applicant. She agreed that at times she smiled and was happy. She was shown a video [1] depicting her emerging from the cabin bathroom in lingerie the applicant had provided and required her to put on, and her spraying perfume on her upper chest. The applicant was on the bed recording the video.
In re-examination she said the applicant made her walk out into the cabin several times. He told her that if she did not walk out and smile and spray the perfume, he would throw her off the cruise ship. She said, “It was staged like most of the other photos and videos that he has and every single time I tried to cover my face, or I tried to do something that he wasn’t happy with, he’d tell me, ‘Why are you covering your face for? I’ve already got so many photos and videos of you.’”

He ejaculated inside her then told her to leave the house without her clothes on. As she tried to pick up her clothes, he changed his mind and allowed her to put them on. He then took her home to change her clothes and then took her to Liverpool police station to make a complaint that Saif was sexually harassing and assaulting her. The applicant remained by her side as she spoke to an officer. The officer did not see her injuries because “Ahmed made me bring my scarf up until my eyebrows”. The officer took down some information and Saif’s details. Knowing that “English wasn’t his [the applicant’s] strongest point” she used the words “sexually harassed” but did not make a formal complaint. The officer said he would speak to Saif. When they left, the applicant told her that he knew she did not say the words he wanted her to say. He then let her go home.
Constable Mark Follington recorded in his notebook that at about 3:45 pm on 16 May 2019 the complainant attended Liverpool police station. [8] He recorded the names of the complainant and Saif, their dates of birth and phone numbers. He also recorded: “Meet July 2018. Feb 2019 breakup”. Also recorded was, “Spoke to Saif. Nil issues. 4:45pm.”
The notebook also included that Saif attended Liverpool police station on 20 May 2019 and made a complaint that since 2 February 2019, he had received numerous phone calls from the applicant telling him to stop calling the complainant as the applicant was now in a “relationship” with her. Saif told police that, while he knew her, he did not speak to her, and he was married to someone else. [9]
At 12:17 am on 17 May 2019 the complainant made a call to triple zero in which she said, “I’ve fallen down the stairs in the building earlier today”. She said she had been vomiting since, felt light-headed, had blurry vision and could not drive herself to hospital. [10] The complainant thought she had suffered a concussion. She did not tell the operator the true cause of her injuries because:

On 11 December 2020, there was a further series of Snapchat messages exchanged between the complainant and the applicant. [43] The applicant sent a still image taken from the CCTV camera footage in the complainant’s living area. She said when she received these messages she was mentally, physically and psychologically exhausted and scared. She had to go outside on the balcony to have conversations on the phone or with her brother because she did not want the applicant to hear, via the CCTV recordings.
On the night of 11 or 12 December 2020, there were many messages from the applicant, but the complainant had turned her phone to silent and fell asleep on the lounge. Her brother put a blanket over her. The messages culminated in the applicant saying he was going to come to her house. There was the sound from the front door of the applicant trying to break in. The complainant had changed one of the locks and the applicant did not have a key.
The complainant’s brother walked towards the front door, but she called out to him not to open it. He did not understand what was going on. He took up the handle of the vacuum in case something happened and asked, “Who the hell are you?” The applicant replied, “I’m [the complainant’s] boyfriend”. Her brother responded, “[She] doesn’t have a boyfriend”. The CCTV time, adjusted for daylight saving, indicated these events occurred at 5:22 am.
The noise prompted a male and a female neighbour (Tooey and Jasmine) to come out. The applicant left. The complainant subsequently told her brother that the applicant had been blackmailing her, harassing her and doing things against her will. She did not tell him every detail. He called triple zero and police attended. She could not allow police inside the apartment as the applicant would see on the CCTV. She feared “he would have sent the stuff to my ex-husband … he sent me a screenshot saying … he’s got the email saved in his drafts ready to send with all the attachments”. The complainant spoke with police in the hallway outside her apartment. She told them she was too scared to report the applicant. She told them about the images and was informed that it would be illegal for him to “leak” any of that. She also told them about the cameras in the house. She was scared to tell the officer any more as the applicant had threatened her: “The day that you report me to police, I will get arrested for it, but I will come out of gaol, and I’ll find you and I’ll kill you …”.
Her brother disconnected the CCTV cameras and gave the receiver (the storage medium presumably) to the police officers.
From 12 to 15 December 2020 the applicant constantly sent messages to the complainant telling her that he had contacted her ex-husband. He had mentioned things to the ex-husband but not a lot; he was going to meet up with him to tell him everything and to give him everything in order for him to take her son away from her. Translated Snapchat messages sent by the applicant on 13 December 2020 corroborated her evidence in this respect. [44]
On 15 December 2020, he told her that if she did not come to his house in the next few minutes, he had her ex-husband’s number on speed dial and was going to call him. She told her brother, “It’s my only chance to make sure he stops, I’m going to go see what he wants and hopefully put a stop to all of this”. She had donated all of her and her son’s clothing to charity and “gotten rid of everything at home”. She was going to tell the applicant that she was leaving Sydney, and he was not going to see her again. She went to his place. Her brother and the neighbours, Tooey and Jasmine, followed.
Text messages recovered by police and translated confirmed the general tenor of the complainant’s account of the communications from and to the applicant on 15 December 2020. [45] They included:

A CCTV camera captured the applicant coming out of a lift and motioning towards the complainant to come into the building at 6:50 pm. [47] He then walked around a corner towards his apartment and out of sight. She entered, called her brother and then put her phone in her pocket, leaving the line to her brother open, and then walked around the corner towards the applicant’s apartment. She said in her evidence that he had said to her “that today’s my last day to live”. She returned momentarily to the foyer, waved towards the CCTV camera in the hope that someone was monitoring it, put her hands together in front of her in a praying motion, and then turned back around the corner towards his apartment.
When she entered the apartment, the applicant was holding a boxing glove from which he withdrew a large, black-handled knife. He saw the heart monitor she had been wearing for the past week and tried to take it from her, alleging that she was recording him. He then tried to hit her with the knife but at that point her brother came in. (The Crown Prosecutor informed the trial judge that the applicant’s words and conduct in this and the preceding paragraph were relied upon for Count 16.)
Her brother tried to get the knife out of the applicant’s hand. The applicant was throwing glass things. Tooey entered, and he and her brother tried to restrain the applicant on the ground. However, the applicant was hitting his head purposely on the floor and screaming, “[they’re] beating me”.
The applicant’s neighbour (MD Karim) also came in. He called triple zero and passed the phone to the complainant. [48] She told the operator about the applicant having a boxing glove and a knife and “he wanted to hit me with it, but then my brother came in time”. Police arrived at the location at that time and the call was terminated. The complainant was asked about what she had said to the operator and she said, “He was holding it and he wanted to stab me with it”. She gave a demonstration as she gave that answer, which the prosecutor described as, “her right hand up in a fist moving position, front and back”.

The complainant’s brother gave evidence which supported that of the complainant in various respects. He returned to Australia in September 2020 after living overseas for many years and soon after commenced living with his sister.
He immediately noticed the two CCTV cameras installed in her apartment and when he asked her about them, she told him they were faulty. Her evidence to the same effect is summarised above (at [91]).
He said that conversations in the apartment were always on the balcony. The complainant did not feel safe within the apartment for a reason he did not understand. (See above at [108].)
He made the general observation that “her behaviour was not the same. It wasn’t the sister that I knew”.
He recalled the time when the complainant fell in the shower. He saw she had a black eye which he thought could have been an injury sustained in the fall. (See above at [99].)
He confirmed evidence that she had given (see above at [105]) of him accompanying her when she travelled to and from work. This was for the purpose of her safety, but he thought it was because of the presence of homeless people in the Liverpool area and the complainant being “a single mother, a little girl on her own”.
He also confirmed her evidence of sleeping on the couch without a blanket (see above at [98]). He found this strange and he had a practice of putting a blanket over her.
When the applicant came to the complainant’s apartment in the early hours of 12 December 2020 but could not gain entry because she had changed one of the locks, her brother was on the floor beside the couch where she was sleeping. The applicant was calling out her name, so he went to the door after arming himself with a vacuum cleaner stick. The applicant told him that he was the complainant’s boyfriend, but he replied that she “does not have a boyfriend”. He opened the door and told the applicant to leave and not return. A male neighbour (Tooey) had also appeared and told the applicant the same thing. Police were called and the complainant spoke to them in the corridor outside her apartment. This was consistent with the complainant’s account of the incident (above at [109]-[111]).
The CCTV cameras were disconnected. The complainant told her brother that it was the applicant who had them installed. After this incident she told her brother that the applicant had been threatening her. He said she told him the following:

Ellen was a hairdresser who worked at the applicant’s Scissor Hands salon at Wetherill Park from about mid-2018 to the end of 2019. She gave evidence that corroborated the complainant’s account in many respects.
At some time in 2018, at Wetherill Park, the applicant introduced the complainant as “his partner”. The complainant was at the Wetherill Park store four or five times a week. Ellen assumed that the complainant had the status of also being her “boss”. Using her own money, the complainant purchased and supplied the products for the salon and sometimes paid Ellen’s wage. If Ellen approached the applicant about ordering stock, he would tell her to see the complainant about it and if she asked him about paying the staff, he would tell her to get if off the complainant or from the till.
Ellen saw the applicant take the complainant’s phone and look through it. He would also ask the complainant who she had called that day, who she had messaged and whether she had been deleting messages. She was also aware of the applicant tracking the complainant’s movements using Find My iPhone. Ellen saw him doing this. When the complainant’s phone was damaged, she acquired a Samsung phone. Because it did not have the iPhone tracker, she heard the applicant telling the complainant, “You need to go get a new phone”.
Ellen gave evidence that Saif was a friend of the applicant who would often come into the salon but not do very much. He was not a hairdresser or barber. The applicant told Ellen that the complainant was a slut because she slept with Saif in the staffroom, which Ellen described as “impossible”. She described it as a small room in an open area and said the salon had about nine staff members.
The applicant used to threaten the complainant and would also say to Ellen that he would get the complainant’s son taken away from her if she ever contacted the police about what he was doing to her. He also threatened to contact the complainant’s ex-husband and her family and tell them that he had slept with her and she was a slut. She said he had obtained their phone numbers out of the complainant’s phone. The complainant told her he also threatened her by saying:

Saif was a friend of the applicant from the time they met in about 2014. He met the complainant through the applicant who referred to her as his “girlfriend”. He also said he intended to marry her.
The complainant told Saif that she had no intention of marrying the applicant. She spoke of wanting to get her money back from him. Saif suggested she complain to police, but she told him that the applicant had some videos and photos of her naked. In cross-examination he said she mentioned being afraid or scared because the applicant had photos and videos of her that he might publish or post or even send copies to her family.
Saif confirmed that he used to attend the salon at Wetherill Park. He had communications with the complainant by phone which would concern either the work of the salon, or her seeking his help in getting her money back from the applicant. The applicant had not told him anything about the latter, so he decided to “get myself out of that situation”.
The applicant thought Saif’s communications with the complainant by phone indicated there was a relationship between them. He said things like, “Why are you doing this? You know very well that I’m in love with her and I have intention to marry her.” At one point the applicant, using the complainant’s phone, left a voice message for Saif in an angry tone.
Saif recalled an occasion in 2019 when the police asked him to attend a police station. He said, “it looks like the police was responding to [the complainant’s] complaint or report she had with the police that I’m harassing her, annoying her, contacting her”. This aligns with the complainant’s evidence of the applicant requiring her to make a false complaint about Saif (see above at [50]-[52]).
In cross-examination, Saif said that he understood the complainant and the applicant had a “girlfriend-boyfriend relationship” but whether they were in a business partnership regarding the Wetherill Park salon, was something he was not sure about.
It was put to Saif that he had a relationship with the complainant, but he disagreed.

Senior Constable Marc Brown attended the complainant’s home at about 8:30 am on 12 December 2020 in relation to a complaint about the applicant’s attendance there at about 5:30 am. He described the complainant as “very distraught”. First, she told him that she did not know the man who had attended but when he took her out of the unit to the hallway, she was more forthcoming. This is at odds with the complainant’s brother having said in his triple zero call at 5:32 am, that while he did not know the man, his sister knew him from the shopping centre.
The complainant told Brown that she had met the applicant about a year prior and that while seeing him they had made recordings of an intimate nature. In about November 2020 she had decided to stop seeing the applicant and he did not take this lightly. She was concerned that he still had the recordings and might distribute them which would adversely impact custody proceedings with her ex-husband in respect of her child in the Islamic Court. She said the applicant had installed cameras in her apartment.
Brown made attempts to speak with the applicant who ultimately attended the police station late that afternoon. He said that he had been seeing the complainant but had decided to break off the relationship and, although he had no intention of seeing her again, she kept contacting him.
The applicant told Brown the reason he ceased the relationship was she had been seeing other people, and he felt obligated to inform her mother about this. He also said she had been seeing her brother and six police officers in an intimate nature at the same time.
The applicant was wearing some form of brace or splint on his hand which he told Brown was because of an injury acquired from sweeping hair. (On the Crown case it was from punching the complainant (see above at [101]-[102])).
Brown said from his experience of attending “a number of domestics” that “something just didn’t sit right with me with the story that I was given initially”. He made a second visit to the complainant at her home on 13 December 2020 and collected the cameras. He thought he might be delivering her good news, namely that the applicant had told him that he would be moving to Cairns and she was likely never to hear from him again. However, her Snapchat account was “going off constantly” as “messages kept popping up”. They were in Arabic so he could not understand what they were, but he described her as “heavily distraught”. (In cross-examination he agreed he understood the person messaging the complainant was the applicant.) He told her he could take action by way of obtaining an AVO on her behalf, but she told him that things were much worse than harassment, although she would not elaborate.
Later in the afternoon on 13 December 2020, Brown received a call from the applicant who complained of receiving a threatening call (from Tooey) demanding money and the keys to the complainant’s apartment. He recorded the conversation. [56]
Brown attended the applicant’s apartment at 1am on 15 December 2020. This was a low-priority response to three triple zero calls made by the applicant the previous evening at 6:06 pm, 7:50 pm and 9:31 pm. The concern he expressed in the calls was for his safety in that Tooey and “junkie people, all tattoos and ex-prisoners” had come to his apartment building. [57] Brown described him as “fidgety and rambling”. He claimed that the complainant had been threatening him over the phone and he had a recording which he played. It was in fact the call from Tooey [58] the previous day. Brown offered to investigate but when the applicant realised it would not involve action being taken against the complainant he was not interested.
In relation to Tooey’s threatening call to the applicant, which was at 4:13 pm on 14 December 2020, it is notable that at 4:49pm he sent a text to the applicant which said, “Hey brother, I’m sorry that I upset you but all I wanted was to make sure my girlfriend is safe”. Further, the complainant’s brother said in messages to the applicant that evening, “She [the complainant] didn’t send anyone to be clear. You got an apology from the other guy. Leave [complainant’s name] alone she never did anything to you”. [59]
In cross-examination, Brown agreed that he had included in a statement dated 6 April 2021 that the complainant had told him she had allowed the applicant to install security cameras inside her apartment and, “She did not explain the reasoning behind this”.
In re-examination, Brown agreed that he had told the complainant that if she had been a victim of crime, he did not believe her situation would improve if she took no further action, but she had replied that “Saleh was dangerous and that she was extremely fearful of him”.

Janice was the complainant’s supervisor at work, and a friend. She described a significant change in the complainant’s appearance and demeanour. When they became acquainted in 2015 she was “very lovely, very joyful … always coming in smiling” and “she was always one to take care of her appearance”. That changed, however, to the point where she did not seem to care and looked “a bit sad”. She was in the process of splitting from her husband. Janice knew they were having problems. However, she said that after the husband left, “that’s when I started seeing the bruises”. She thought that was around May 2019.
She gave a detailed account of seeing bruising to the arms and legs and on one occasion a bump on the head. The complainant always had an explanation involving an accidental mishap such as falling downstairs or bumping her arm on a wall. After the divorce from her husband, these events continued.
Around May 2019 the complainant was “quite stressed about money” and was asking her work colleagues for money because she owed her mother a lot of money. This coincides with the complainant’s account of having borrowed from her mother and work colleagues to provide the money demanded of her by the applicant (see above at [34]-[38]).
Janice gave evidence of a “heavily accented Arabic man” calling a landline number at the complainant’s workplace and either getting through directly to the complainant or asking to be transferred to her. Janice sometimes answered such calls and recognised it was the same person each time. She said the complainant “just tenses up and becomes all stressed” when this occurred. This aligns with the complainant’s evidence of the applicant calling the work landline number to check on her (see above at [60]; [98]).
The complainant’s frequent phone activity became a talking point at her work. Janice pulled her aside and told her she should take some time off to deal with her family issues because she was making a lot of mistakes. She told her, “These phone calls have got to stop”. The complainant had become known at work as “the person who’s always on the phone”.
Just before the Christmas party in 2019 there was a day when the complainant came to work with a black eye and a swollen nose. Janice said, “It looked like she had just been punched”. She asked what happened and the complainant gave an implausible explanation: “I was so clumsy again. I was trying to reach for the tray up on the top shelf and it dropped on me.”
Janice pleaded with her, “You’ve got to tell me what’s going on. Is this your husband?” but she replied, “No, no, I’m all right”.
One day when Janice was going out to the shops, the complainant asked, “can you buy me some bruising cream?”
The complainant would go missing of an afternoon between about 2 and 3 o’clock, saying that she was picking up her son. However, Janice knew that her son was in after-school care all the time. When the complainant returned, she would be “quite flustered”, “sort of sad”, whereas before she went out, she was “quite happy, quite normal”. She would always return with a red mark on the side of her face that was not there before.
The complainant went camping on the South Coast with Janice and her family in July 2020, or perhaps 2019. It was a source of frustration for her fellow campers that she was constantly distracted by her phone. When asked about the distraction “she would always say it’s her mum”. At one point when everyone was sitting around a fire, after having been speaking on the phone in Arabic to someone, she put her phone on speaker and held it up, asking the group, “Can you just tell my mum who’s here?” Janice said she replied on behalf of the entire group but considered it “quite weird” because she had previously spoken on the phone to the complainant’s mother so the phone could simply have been handed to her. Further, whoever was on the other end of the call did not respond. (For the complainant’s evidence of the camping trip, see above at [73].)
Janice agreed in cross-examination that it was correct that, “Even though [the complainant] was your friend, she didn’t tell you about any new relationship after the divorce with [name of ex-husband]”.

[34] Since the ultimate decision concerns the reasonableness of the jury’s decision, 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. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof born by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but requires 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. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman [(1987) 44 SASR 591 at 593], and referred to in later cases [including MacKenzie]; it may appear to a jury that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.

It was submitted that the acquittal was consistent with the jury being persuaded that after August 2016, the complainant and the applicant formed some type of romantic relationship.
Reason (b) provides little to no assistance to the applicant’s case for two reasons. First, each case must be judged by reference to its own facts and circumstances, eschewing unhelpful theories derived from a less trauma-informed era. The criminal law has moved on from placing reliance upon preconceived notions as to what a victim of sexual assault is expected to say and do during an assault and in the aftermath.
It is noted that the trial judge gave the jury a direction pursuant to s 292B of the Criminal Procedure Act 1986 (NSW) that “there is no ‘typical’ or ‘normal’ response to non-consensual sexual activity, and people may respond to non-consensual sexual activity in different ways”. He also gave a direction that “[t]here may be good reasons why a victim of sexual assault may hesitate in making or refrain from making a complaint about it”.
Second, and despite the foregoing, the complainant gave plausible explanations for not doing what it was suggested she might have done in the aftermath of being sexually assaulted at the applicant’s home.
Reason (c) and the contention that the jury were persuaded of there being a romantic relationship formed after the Count 1 event are of only marginal relevance to the present issue of alleged inconsistency. They are issues more fully considered under Particular (b) where the contention is ultimately rejected.
The Crown identified a substantial distinction between Count 1 and the other sexual assault counts on the indictment. Count 1 was the only count in which the occurrence of sexual intercourse was squarely in issue and depended wholly upon the complainant’s evidence. There was no supporting forensic or medical evidence, no eyewitness evidence and no contemporaneous complaint. There was also no evidence corroborating the complainant’s account of the intercourse having been non-consensual.
The occurrence of sexual intercourse was not in issue in respect of the other sexual assault counts. The complainant’s evidence of intercourse being non-consensual was supported in many respects.
More significantly, however, was that in respect of all the subsequent counts on the indictment, there was a context in which the alleged offences were committed from January 2017 to December 2020, namely that the applicant and complainant were in a relationship marred to an extraordinary extent (on the Crown case) by abuse, threats, control and coercion. The offence alleged in Count 1 preceded the commencement of the subsequent offending by four to five months and the only context for it was that the applicant was the barber who cut the complainant’s son’s hair.
The various ways in which the complainant’s evidence relevant to Counts 2 to 16 was supported is set out in a table annexed to this judgment. None of such evidence had any bearing upon Count 1.
The trial judge gave the jury a standard direction as to the need for separate consideration of each of the 16 counts which included a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290:

It was submitted the complainant’s actions of walking into the cabin and spraying perfume on herself “appear too natural and free flowing and there is no hint that anything that she is doing is staged”. However, on our viewing of the video, partly because the lighting is dim, it is not possible to discern whether the complainant is doing something she wanted to do or something she was told to do. Her facial expression is not possible to discern, and her physical movements provide no assistance. Her lips can be seen moving so presumably there was speech, but it seems to have been in Arabic and there is no translation.
Counsel for the applicant submitted the complainant did not display any of the signs of the fear which she spoke of in her evidence-in-chief. He also referred to evidence given by the complainant in re-examination when she said that this video was “staged” (see above at [24]). It was submitted that the explanation of the videos being staged did not accord with what can be seen in either of the two videos.
Another video relied upon by the applicant in support of his submissions about the relationship between himself and the complainant was Exhibit 1.7, which depicted the applicant proffering an engagement ring (see above at [174]-[178]). It was submitted that, “it appears to be, on its face clearly a joyous occasion. She’s expressing joy and happiness objectively when we watch the video.” It was submitted that the complainant in her evidence was “severely downplaying, if not lying, about the nature of her relationship with the applicant”.
Counsel for the applicant accepted in response to a question from the bench that it was open to a jury (as usual) to accept some parts of what a witness said while not accepting other parts. He maintained, however, that Exhibit 1.7 provided another example of disingenuousness on the part of the complainant in explaining away the videos and photographs that were presented to her during her evidence.
The applicant’s characterisation of what is depicted in this video cannot be accepted. Throughout the entire recording the complainant was covering her face with her hands and did not say anything. The criticism of the complainant’s evidence in relation to this video is unjustified.
When asked about the complainant’s evidence in re-examination that the applicant subsequently abused her for not accepting the ring (above at [178]), counsel pointed out the obvious fact that she was not cross-examined on that evidence, and submitted that it entailed her taking “every chance that she could to downplay or paint in a dim light any of the photographs or the videos that the applicant was seeking to rely upon”.
We are not satisfied that these videos support the applicant’s contention of there having been consensual sexual activity with the complainant. They are equivocal at best.
Looking at the reasonableness of the verdicts more generally, whatever may have prompted a majority of the jury to have a reasonable doubt about the applicant’s guilt in respect of Count 1, it cannot have been because of a general concern about the complainant’s evidence in respect of the critical aspects of the events forming the basis of Counts 2 to 16. That is because her evidence in respect of them was plausible and it was compellingly supported in so many ways.
The complainant’s evidence was that there was an initial sexual assault which was unanticipated. Thereafter, being mindful of her cultural background and out of fear engendered by the applicant that he had the power to orchestrate events which could lead to her losing custody of her son, or that he might kill her, she was compelled to do as he commanded. This was operative immediately after her first visit to the applicant’s home in August 2016 and continued to late 2020 and beyond. Even at the time of her giving evidence her parents remained unaware of what she had experienced (see above at [16]-[19]).
Annexure A to this judgment comprises a table setting out evidence of the complainant that was supported by evidence independent of her. It indicates there was strong support for her credibility and reliability on a wide range of topics.
The applicant’s contention was that he and the complainant were in a romantic relationship in which there was consensual sexual activity, but no-one appears to have known about it. Mahir was told by the applicant there was a “love relationship” but he did not give evidence of anything to verify it. Ellen was told the complainant was the applicant’s partner, but she saw and heard many things suggesting it was an abusive relationship as the complainant described. Janice, the complainant’s friend, gave evidence that the complainant said nothing about any new relationship following the divorce from her ex-husband. There was no suggestion of anyone else, witness or otherwise, being aware of the existence of a relationship that was anything similar to that being suggested by the applicant through his counsel.
The Crown presented an overwhelming case depicting a relationship between the applicant and the complainant which involved stalking, intimidation, control and coercion together with physical and sexual violence as its core elements. The complainant’s private life in her apartment was lived for almost four months in full view of the applicant through CCTV cameras. He had almost complete control over her life by taking advantage of her cultural ideology and fear of losing custody of her only child, and her life.
The fact the complainant appeared in some short video clips or photos to smile, or even dance on occasion, devoid of context does not diminish the validity of that assessment. Transient relief, if that is what it was, does not negate the overall character of that period in the complainant’s life as being one of sustained misery. We are not persuaded that her credibility was tarnished to any significant degree by the evidence relied upon by the applicant. It does not engender a reasonable doubt in our minds, and nor ought it to have done so in the minds of the jury.
Having made an independent assessment of the evidence in the trial, the Court is not persuaded that the verdicts of guilty returned for Counts 2 to 16 inclusive are unreasonable or unsupported by the evidence.
Particular (b), and Ground 1 entirely, are rejected.

There is no issue that the evidence of and concerning the video identified as item MB33 qualified as an exception under s 294CB(4)(b). The only question is whether its probative value outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. That is a matter that admits of only one correct answer and does not involve the exercise of discretion. Accordingly, the submission of the Crown, with which the applicant agreed, that the correctness standard of appellate review applied is accepted: see Cook (a pseudonym) v R [2022] NSWCCA 282 at [96], [102] (per Adamson J, Bellew J agreeing, Beech-Jones CJ at CL dissenting as to the ground in question). [61]
Each member of this Court viewed the video in chambers and came to the same conclusion contended for by the Crown. [62] The complainant’s facial expression during an extremely brief disengagement from the applicant’s penis is equivocal at best. The vision of what occurred immediately before and after, indicates it is unlikely she was smiling. The preceding vision is of an act of fellatio with the applicant’s hand on the back of the complainant’s head. The subsequent vision is of the complainant turning her face away from the camera, followed by the applicant pushing her head back towards his penis and then directing his penis towards her mouth. The video is equally, if not more, consistent with the complainant not being a free and voluntary participant.
The Crown made a very apt submission about the context in which the probative value of the evidence needs to be assessed. [63] The complainant’s evidence was that she never freely and voluntarily participated in sexual activity with the applicant but complied with his demands because of threats and intimidation. She said, “I wasn’t with him because I wanted to be with him”.
The probative value of the evidence was also diminished by the fact that the act which was the subject of the recording did not relate to any of the offences charged on the indictment. Consequently, it had limited value as to whether the complainant was consenting on any relevant occasion.
The applicant submitted that the probative value of the evidence only became apparent later in the cross-examination when the complainant agreed her evidence was, “There was no act between yourself and Mr Saleh that was consensual”. The answer was entirely unsurprising as it was the tenor from the very beginning of her evidence that she was not willingly in a relationship with the applicant at any stage. She said she only saw the applicant again, and multiple times, after the first act of non-consensual intercourse, “Because I had no option”. The clear and consistent theme throughout her evidence was that she acquiesced to sexual intercourse because of coercion, intimidation and physical violence. There was never free and voluntary consent.
In his written submissions before Buscombe SC DCJ, the applicant conceded that “evidence of this kind would cause distress, embarrassment and humiliation to the complainant”. When the Crown submitted before the trial judge that the “distress to the complainant will be huge”, the applicant’s counsel declined an invitation to say anything in response.
The three forms of psychological response a complainant “might suffer”, against which the probative value of the evidence is to be weighed pursuant to s 294CB(4) is not expressed in terms of any particular likelihood or degree. In our assessment, the evidence had low probative value and there was a substantial risk of significant distress, humiliation and embarrassment.
The trial judge was correct to rule the evidence was inadmissible. Ground 2 is rejected.

The evidence was not adduced or referred to at trial. The applicant contends that it would have been highly significant to his defence because it was consistent with the complainant having had sincere feelings of love and affection for the applicant, which was inconsistent with her account and thus reflected adversely on her credibility. The applicant says that it would have provided a basis to challenge the complainant under cross-examination about her characterisation of the relationship, and her credibility more generally.
This Court received, on a provisional basis, affidavit evidence about the circumstances surrounding the Snapchat messages in question being downloaded from the applicant’s phone, translated into English, made available and provided (or not provided, as the case may be) to the applicant’s legal representatives. The applicant affirmed one affidavit, as did his trial counsel (Michael Coroneos) and instructing solicitor at trial (Adam Houda). The applicant’s brother, Salah Saleh, provided two affidavits. The Crown relied on an affidavit of Ms Aisling Cunnigham-Burke, the instructing solicitor with carriage of the appeal within the Office of the Director of Public Prosecutions (NSW) (ODPP).
We draw the following conclusions from that evidence:
the applicant owned an iPhone 11 Pro X which was seized by police on 15 December 2020. He also owned an iPhone 12 Pro which was seized by police on 14 December 2021. The Snapchat messages in question (in their original Arabic form) were able to be obtained from one or other of the applicant’s phones. This was the case when the phones were in the applicant’s possession and when they were later seized by police. This was still the position at the time of trial in 2023;
after the applicant was released on bail on 7 July 2021, he collated a large number of messages between himself and the complainant. This included Snapchat messages on his phone. He printed those messages and provided them to a NAATI certified translator, Mr Omar Moussa, in order for those messages to be translated into English. We infer that the applicant undertook this exercise because he appreciated the potential importance to his defence of the communications that passed, or ostensibly passed, between him and the complainant, including the three Snapchat records in question;
while he was on bail the applicant had provided his brother, Salah, with a USB containing documents that he had identified as relevant to his defence. The applicant was returned to custody on 15 December 2021 and he has remained in custody ever since. After 15 December 2021 the applicant asked his brother to be responsible for all of his evidence;
as Mr Moussa completed the translation of the messages he provided them to Salah Saleh by email. Salah Saleh downloaded the material sent to him and added the translated documents to a USB which contained the evidence relevant to the applicant’s defence;
in early September 2022, at the request of the applicant, Salah Saleh provided a USB to Mr Mohammad Bazzi, who was at that time the solicitor acting for the applicant. Salah Saleh copied to the USB all of the documents he thought were relevant. Salah Saleh believes that the USB he provided to Mr Bazzi contained the Snapchat messages that are now in issue. The appropriate inference to be drawn from Mr Saleh’s evidence is that those messages were provided to Mr Bazzi;
the applicant became unhappy with his representation by Mr Bazzi. He terminated the services of Mr Bazzi. Around 23 September 2022 Salah Saleh attended the office of Mr Bazzi to collect the applicant’s file. He was told that Mr Bazzi was on holiday and Salah Saleh did not retrieve the file or the USB;
in February 2023, Salah Saleh engaged Mr Houda of Lawyers Corp Pty Ltd (Lawyers Corp) to act for the applicant. Lawyers Corp acted for the applicant at trial and have continued to act for him on appeal;
following the engagement of Lawyers Corp, Salah Saleh provided to Lawyers Corp two USBs, together with a link to a Google Drive containing evidence. Mr Saleh was under the impression that all of the USBs that he had in his possession contained the same material, which was also contained on the Google Drive;
long after the trial, in around May 2025, it became apparent to Salah Saleh that this was not the case. The material he had provided to Lawyers Corp did not in fact contain the Snapchat messages that are now in issue. Nor had Lawyers Corp identified those three messages from any of the other material that was provided or made available to them;
the contents of the applicant’s phones were downloaded by investigators. The material downloaded in this way was captured in what is known as Cellebrite data. Two of the Snapchat messages in question were contained in the data extracted from the applicant’s iPhone 12 Pro. The other message was obtained from the applicant’s iPhone 11 Pro. “Cellebrite Extraction Reports” were prepared from that data. The Cellebrite Extraction Reports include screenshots of each of the relevant Snapchat messages (in their original Arabic form), together with information explaining that the screenshots were sourced from the applicant’s phones;
in July 2022 the ODPP served a Notice of Prosecution Case (NOPC) on the applicant’s then solicitor. A copy of the NOPC was served on Mr Houda by email on 20 March 2023. Statements from police investigators, attached to the NOPC, described how Cellebrite data had been extracted from the applicant’s phones. The NOPC notified that the physical exhibits in the possession of NSW Police were available to be viewed by arrangement by contacting the Officer in Charge;
the trial of the applicant took place in June and July 2023. At the trial neither Mr Houda nor Mr Coroneos was aware of the existence of the Snapchat messages that are now in issue;
the applicant says that during his trial there were moments when he thought that his lawyers “did not have certain documents which I had translated by Mr Moussa”. The applicant says that he wanted to speak to his brother Salah about it but he “didn’t get the chance because [Salah] was not allowed in the courtroom since he was going to be a potential witness for me”. No explanation is given by the applicant as to why he did not speak to his brother about this by telephone, when that would have been an obvious solution to the perceived obstacle;
nor is any explanation proffered by the applicant as to why, in these circumstances, he did not ask his lawyers about the documents which had been translated by Mr Moussa but which he apprehended may not have reached his lawyers. This was the obvious step to take during the trial if the applicant thought there was significant material which may not have reached the lawyers. It is unclear from the applicant’s affidavit whether or not he had in mind the three Snapchat messages in particular as being documents that may not have been provided to his lawyers. But in any event the applicant had downloaded those messages himself from his phone. If they were, as the applicant now contends, significant documents that could be used to discredit the complainant the applicant could and should have raised this with his lawyers if he had formed the view that they might not have received the documents that had been translated from Mr Moussa;
Mr Houda and Mr Coroneos first became aware of those messages in May 2025 when they were provided by Salah Saleh. Mr Coroneos has provided affidavit evidence for the appeal in which he says that if those messages had been available to him at trial he undoubtedly would have relied on them during his cross-examination of the complainant, given that she consistently maintained in her evidence that she had never willingly been in any type of consensual relationship. That is, Mr Coroneos perceives the Snapchat messages as evidence contradicting that version of events; and
regardless of the contents of the evidence that had been collated and provided by Salah Saleh, first to Mr Bezzi and then to Mr Houda, the Snapchat messages were able to be obtained at any relevant time by accessing the applicant’s phones and/or by reviewing the Cellebrite data and the Cellebrite extraction reports. The point is illustrated by the fact that during the trial the solicitor and counsel for the applicant did obtain access to the applicant’s phone in order to check when certain photographs were taken. The significance of any communications passing, or apparently passing, between the complainant and the applicant must always have been obvious to the legal representatives involved at trial. No evidence has been given by the legal representatives, or any of the other deponents, about the steps that the legal representatives took to investigate such communications. No explanation is proffered as to why the lawyers did not ask the applicant about this (assuming they neglected to) or interrogate the potential sources of evidence in this regard, including the Cellebrite extraction reports which contained screenshots of the relevant messages (albeit in Arabic). While it may be accepted, as counsel for the applicant submitted at the appeal, that Cellebrite data and extraction reports are somewhat cumbersome to interrogate, that is not a sufficient answer to an apparent failure to investigate a source of evidence of such obvious potential importance.
The applicant submits that a miscarriage of justice occurred because the Snapchat messages were not used or adduced into evidence at trial. He seeks orders quashing his conviction and for a re-trial.
The applicant’s primary argument is that the evidence in question is “fresh evidence”, in the sense that it was not available to the applicant at the time of the trial, actually or constructively. Evidence is “constructively available” to a party if it could have been discovered or available at the time of trial by the exercise of due diligence: *R v Abou-*Chabake [2004] NSWCCA 356; (2014) 149 A Crim R 417 at [63]. In assessing what evidence, by reasonable diligence, could have been discovered or available at trial, great latitude must be extended to an accused: Ratten v The Queen (1974) 131 CLR 510 at 517; [1974] HCA 35 (see further below).
The applicant’s attempt to characterise the Snapchat messages as evidence that was not available to him at the time of trial, either actually or constructively, involves, in the first instance, an artificial distinction between the applicant and his legal representatives. As far as the applicant personally is concerned, there can be no doubt that the evidence was actually available to him at trial, even if it was not in his immediate possession. The messages had in fact been in his possession prior to trial. The Snapchat messages were contained on the applicant’s phones. He had downloaded and printed the messages and facilitated their translation by Mr Moussa.
By the time of trial, while the applicant was no longer in possession of his phones or, it seems, the various electronic or paper copies of the messages that had been brought into existence, the applicant was in a position readily to obtain evidence of the messages from a number of sources. He could have sought access to his phones and repeated the downloading exercise that he had already performed. He could have asked his brother for copies of the messages that he had previously downloaded and printed, and the translations of those messages that Mr Moussa had provided. The applicant’s own evidence indicates that during the trial the applicant was conscious of the translations that had been obtained from Mr Moussa. He could have sought access to the Cellebrite data and/or the Cellebrite Extraction Reports which contained the messages. It is therefore not necessary to resort to any notion of constructive availability, based on the notion that with reasonable diligence the applicant could have uncovered it. While not in the applicant’s current possession, it was actually available to the applicant from a number of convenient sources.
The applicant seeks to avoid the consequences of that state of affairs by focusing on the position of his lawyers. In doing so, the applicant could not point to any authority to the effect that evidence may be regarded as “fresh”, in the relevant sense, if it was not available to an applicant’s lawyers at the time of trial, either actually or constructively, even though it was available to the applicant personally. The point may be purely academic, given that material available to a client will ordinarily also be available, even if only constructively, to the legal representatives of that client. Putting that to one side, a distinction of the kind sought by the applicant could have significant implications for the law in this area. We do not consider it necessary to express any view about whether there is a principled basis for drawing such a distinction. That is because, on any view, the Snapchat messages were constructively available to the applicant’s lawyers at the time of trial. With reasonable diligence the applicant’s lawyers could have discovered and located the Snapchat messages.
As we have already observed, given the nature of the allegations against the applicant and the complainant’s evidence about the nature of their relationship, it would always have been obvious to any legal representative for the applicant that past communications passing between the applicant and the complainant were potentially relevant. It would have been equally obvious that text messages, including as exchanged on Snapchat, are an important repository of evidence in this regard. An obvious and readily available step to take would have been to speak to the applicant about his methods of communication with the complainant. That in turn would have identified that the applicant and the complainant communicated using Snapchat, which would have led to any one of the various repositories of the Snapchat communications on or extracted from the applicant’s phones. Even assuming favourably to the applicant that it is relevant to ask what his lawyers (rather than the applicant) could have obtained with reasonable diligence, no amount of latitude to the applicant can avoid the conclusion that with reasonable diligence the Snapchat messages could have been discovered and obtained.
For these reasons, the Snapchat messages now sought to be relied upon by the applicant do not constitute fresh evidence. The evidence is instead to be treated as new evidence.
The authorities establish that where evidence is merely new, and not fresh, a miscarriage of justice in a conviction appeal will only be demonstrated where the evidence is of such cogency that innocence is shown to the Court’s satisfaction, or the Court concludes that the guilt of the applicant was not established beyond reasonable doubt. In such circumstances the appropriate outcome is for the conviction to be quashed and a verdict of acquittal entered instead. This is the principle articulated by Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) in Ratten at 518, 520. Barwick CJ, at 517, linked the rationale for the principle to the adversarial nature of a criminal trial:

The applicant seeks to rely on statements in subsequent judgments expressing doubt about whether the formulation of the test in Ratten strays too far from the decisive concept of a miscarriage of justice. The applicant drew attention in particular to the discussion of the issue by Giles JA in R v Bikic [2002] NSWCCA 227 at [241]-[281]. However, in Bikic Giles JA (with whom Sully and Levine JJ agreed) concluded at [283] that the Court was bound to apply Ratten as a binding statement of the governing principles. Moreover, the statement of principle in Ratten has been adopted by this Court as a correct statement of the law on a number of occasions: see *R v Abou-*Chabake [2014] NSWCCA 356; (2014) 149 A Crim R 417 at [63]; Xie v R [2021] NSWCCA 1 at [434]; SC v R [2023] NSWCCA 60 at [199]. As to the different considerations that apply to fresh and new evidence in the context of an appeal against sentence, see Lawavou v R [2025] NSWCCA 35 at [92]-[135]; Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [104]-[108].
The Snapchat messages fall well short of establishing that the applicant was innocent of any of the counts for which he was convicted, or that the Crown failed to establish his guilt beyond reasonable doubt. Indeed, the applicant effectively conceded as much in his submissions. The applicant did not seek to argue that the evidence was of such cogency as to give rise, without more, to a reasonable doubt. Instead the applicant sought a re-trial on the basis that there is a “significant possibility that this evidence would have added a further layer of doubt to the complainant’s evidence and therefore led to a different outcome”. The applicant submits that the Snapchat messages put an “entirely different complexion” on the nature of the relationship between the complainant and the applicant from that which was presented by the complainant in her evidence at trial. Given the test to be applied to new evidence of this kind, the applicant’s concession that the evidence does not suffice to demonstrate a reasonable doubt is sufficient to dispose of ground 3. For completeness, however, we will explain why we consider that the applicant’s argument greatly overstates the forensic significance of the new evidence.
First, there is good reason to doubt that the evidence even records messages sent by the complainant. There was evidence at trial from a number of sources, seemingly unchallenged, that the applicant was in the habit of taking the complainant’s phone and using it. The complainant gave evidence that he obtained access to the passwords from her accounts in 2016, after which time he was able to access the complainant’s online accounts from wherever he was. The complainant also gave evidence about the applicant using the complainant’s phone and accounts to send messages that appeared to be from her, but were in fact written by the applicant. The complainant said that the applicant “always had access” to her phone and would “constantly send messages”. She said that the applicant sent messages to himself from the complainant’s phone to “make it look like I was saying nice things to him … So he’d constantly send messages from my phone to his phone, saying I love you and you’re my life and … to that extent, to make it look like I was the one in love with him”. CCTV footage taken inside the complainant’s apartment on 14 September 2020 shows the applicant apparently using the complainant’s phone for a sustained period, while holding another phone in his other hand. Damien, a friend of the complainant, gave evidence that he received messages purportedly from the complainant that could not have been authored by her. It follows that there is a threshold question as to whether any reliance can be placed on the Snapchat messages as indicating anything about the complainant, because of the doubt that she even wrote them.
The applicant submits that this explanation would not apply to the exchange apparently recorded on 4 December 2020, because the evidence appears to show a message from the applicant to the complainant, as well as a response from the complainant to the applicant. However, if the applicant had a practice of accessing the complainant’s phone and using it to generate fake messages with a view to creating a false record of the complainant’s apparent love for him, it is equally plausible that the applicant would create false two-way exchanges using a combination of his phone and the complainant’s phone.
Second, even if the messages attributed to the complainant were written by her, it by no means follows that they reveal in an objectively reliable way sincere feelings of love for the applicant, or any attitude which would cast doubt on the credibility of the complainant’s account of their relationship. The content of the messages is confusing and not easy to follow. It may be accepted that there are apparent signs of positive feeling towards the applicant, such as affection and loyalty, in the messages that are said to have been sent by the complainant. However, given the balance of the evidence heard by the jury, nothing can be taken at face value or out of context in this matter. We do not accept that the messages have an inherently exculpatory character.
The complainant in her evidence painted a vivid picture of a coercive relationship in which for a number of years she had to endure severe threats and physical and sexual violence and intimidation at the hands of the applicant. The complainant was vigorously challenged on that evidence, including by being taken to photographs and videos that were said to show the complainant in a state of apparent happiness and comfort with the applicant. The complainant’s evidence in response included that while she did smile and laugh with the applicant she “had to”. Her evidence was to the effect that even though she was not happy she felt obliged to smile and forced herself to do so. Such evidence about the measures that the complainant had to take to endure and manage a volatile threat in the context of a coercive relationship is logical and plausible. Appeasement in the face of such hostility is readily understandable. It provides important context when assessing the supposed significance of the Snapchat messages.
If the evidence of the Snapchat communications had been before the jury, even if the jury accepted that the complainant did write the messages attributed to her, it would have been well open to the jury to conclude that the messages do not reflect adversely on the complainant’s credibility. That is because they can be interpreted as being consistent with the complainant acting in a forced way to appease the applicant and manage him, in the context of a dangerous and volatile relationship. While it is impossible to say precisely how the complainant would have responded to the evidence if put to her in cross-examination, including whether she would have accepted authorship of the messages, the more likely inference is that even if the complainant accepted that she wrote the messages she would have dealt with them in the same manner as she had dealt with the evidence of a similar kind, in the form of photographs and videos, that was put to her and said to show that she was actually a willing and enthusiastic partner.
The point is reinforced by the temporal context. The two dated messages are from October and December 2020. There is CCTV footage of the applicant punching the complainant in the face on 13 September 2020. The complainant is shown holding a packet of peas to her face after that assault. Her evidence was that she had been punched multiple times and the applicant had also ripped out large amounts of her hair (as shown in photographs taken the next day). On 15 September 2020 the complainant collapsed in a state of acute distress, anxiety and light-headedness. She was found on the kitchen floor when paramedics arrived, after her young son called triple zero. Further violence is shown on CCTV footage taken on 18 September 2020, with the applicant restraining the complainant for a prolonged period and striking her. On 30 October 2020 the applicant, on the complainant’s account, hit the complainant with an extension cord up to ten times. The complainant took photographs of her bruised arms the next day. On 4 November 2020 the applicant sent the complainant a video of him holding a meat cleaver. The applicant told the complainant that day that he would cut her skull in half and chop her up into pieces so that no one would find her remains. A further assault on 30 November 2020 involved punching, further striking with an extension cord, the throwing of a fan and choking pressure to the complainant’s neck. The applicant struck the complainant’s head with sufficient force to injure his own hand. The next day the complainant’s injuries were observed by her brother, who also took photographs. That day the applicant sent the complainant threatening messages. He told the complainant “I will break your two arms just like what happened to me”. There is thus powerful evidence, from multiple sources, to support a conclusion that by October 2020 the complainant was living in a state of extreme threat and ongoing fear for her life. By December 2020 the situation had only become worse.
All of this might tend to support a conclusion that it is improbable that the complainant was the author of any of the messages, in particular the messages dated October and December 2020. But even on the assumption that the complainant wrote those messages, it is not a matter that would necessarily reflect adversely on the credit of the complainant, either generally or in the context of the various incidents that occurred from September to December 2020.
For these reasons, even if the relevant test to be applied to new evidence of this kind is, as the applicant asserted, whether there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charges if the evidence had been before it, we do not consider that such a significant possibility has been demonstrated. No miscarriage of justice has been established.
Consistently with the approach adopted in the authorities, given these conclusions about the limited significance of the evidence the appropriate course is to formally reject the evidence that was admitted on a provisional basis: see Franklin v R [2021] NSWCCA 260 at [127]-[128]; Mehajer v R [2026] NSWCCA 14 at [88].

| Count / Sequence | Offence | Maximum penalty and SNPP | Indicative sentence | | Sequence 27 (on a s 166 certificate) | Threaten to distribute intimate images, contrary to s 91R(2) of the Crimes Act | Maximum penalty: 3 years’ imprisonment and/or 100 penalty units No SNPP | 1 year | | Count 2 | Sexual intercourse without consent, contrary to s 61I of the Crimes Act | Maximum penalty: 14 years’ imprisonment SNPP: 7 years | 10 years (NPP 7 years) | | Sequence 26 (on a s 166 certificate) | Demand money with menaces, contrary to s 249K(1)(a) of the Crimes Act | Maximum penalty: 10 years’ imprisonment No SNPP | 1 year | | Sequence 10 (on a s 166 certificate) | Assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act | Maximum penalty: 5 years’ imprisonment No SNPP | 1 year | | Count 3 | Aggravated sexual intercourse without consent (recklessly inflicted actual bodily harm immediately before intercourse), contrary to s 61J(1) of the Crimes Act | Maximum penalty: 20 years’ imprisonment SNPP: 10 years | 15 years (NPP 10 years) | | Sequence 13 (on a s 166 certificate) | Assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act | Maximum penalty: 5 years’ imprisonment No SNPP | 1 year | | Count 4 | Aggravated sexual intercourse without consent (recklessly inflicted actual bodily harm immediately before intercourse), contrary to s 61J(1) of the Crimes Act | Maximum penalty: 20 years’ imprisonment SNPP: 10 years | 15 years (NPP 10 years) | | Count 5 | Aggravated sexual intercourse without consent (recklessly inflicted actual bodily harm immediately before intercourse), contrary to s 61J(1) of the Crimes Act | Maximum penalty: 20 years’ imprisonment SNPP: 10 years | 15 years (NPP 10 years) | | Count 6 | Common assault, contrary to s 61 of the Crimes Act | Maximum penalty: 2 years’ imprisonment No SNPP | 1 year | | Count 7 | Common assault, contrary to s 61 of the Crimes Act | Maximum penalty: 2 years’ imprisonment No SNPP | 1 year | | Count 8 | Sexual intercourse without consent, contrary to s 61I of the Crimes Act | Maximum penalty: 14 years’ imprisonment SNPP: 7 years | 10 years (NPP 7 years) | | Count 9 | Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act | Maximum penalty: 5 years’ imprisonment No SNPP | 2 years, 6 months | | Count 10 | Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act | Maximum penalty: 5 years’ imprisonment No SNPP | 2 years, 9 months | | Count 11 | Aggravated sexual intercourse without consent (recklessly inflicted actual bodily harm immediately before intercourse), contrary to s 61J(1) of the Crimes Act | Maximum penalty: 20 years’ imprisonment SNPP: 10 years | 18 years (NPP 13 years, 6 months) | | Count 12 | Aggravated sexual intercourse without consent (recklessly inflicted actual bodily harm immediately before intercourse), contrary to s 61J(1) of the Crimes Act | Maximum penalty: 20 years’ imprisonment SNPP: 10 years | 20 years (NPP 15 years) | | Count 13 | Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act | Maximum penalty: 5 years’ imprisonment No SNPP | 3 years | | Count 14 | Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act | Maximum penalty: 5 years’ imprisonment No SNPP | 3 years | | Count 15 | Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act | Maximum penalty: 5 years’ imprisonment No SNPP | 3 years | | Sequence 28 (on a s 166 certificate) | Intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act | Maximum penalty: 5 years’ imprisonment and/or 50 penalty units No SNPP | 1 year | | Count 16 | Common assault, contrary to s 61 of the Crimes Act | Maximum penalty: 2 years’ imprisonment No SNPP | 1 year |

On or about 30 November 2020, the applicant told the complainant that, if she did not go to his house, he would come to her work and “beat” her in front of her colleagues. The complainant negotiated with the applicant, such that she attended his home after work, with her son and brother waiting in her car.
When the complainant entered the applicant’s apartment, the applicant recorded himself interrogating her about who had been in her house the previous day. Although no one had actually been in her house, the complainant gave the applicant the name “Dex”, in an attempt to placate him.
The complainant gave evidence at trial explaining the context in which the interrogation occurred: namely, that the applicant had been impersonating the complainant on dating apps or websites, and would send her screenshots of people he had been messaging, in attempts to try and make her sleep with them either alone or in front of him. She chose the name “Dex”, having seen the name in that context.
The applicant then threw a tower fan at the complainant, punched her, and hit her with an extension cord, causing bruising to her left rear shoulder. He also applied pressure to her neck in a choking-type action whilst pressing her against a wardrobe. The complainant banged on the wardrobe’s sliding door, hoping that she would be seen or heard. She escaped by telling the applicant that her brother was waiting outside.
The complainant suffered bruising to her face, neck and shoulder, depicted in the photographs at pages 53-58 of Exhibit B.
The complainant said that when she got home, she had a cold shower to try and ease her pain. She became lightheaded and fell in the bathroom on the floor. Her brother found her on the bathroom floor and saw the marks on her face but assumed they had been caused by her fall.
Later that same night, the applicant sent the complainant a message on Snapchat. When translated from Arabic to English, the message read (page 52 of Exhibit B):

The sentencing judge had regard to several aggravating factors (insofar as they existed and were relevant to particular offences) pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”). By way of example, in respect of Counts 3, 9, 10, 11, 12, 14, 15 and 16, the sentencing judge found that the applicant’s threatened or actual use of a weapon was an aggravating factor.
In respect of Count 13, the sentencing judge found that the offence was aggravated because it was committed in the presence of a child under the age of 18 (s 21A(2)(ea) of the Sentencing Act).
In respect of Counts 9, 11 and 12, the sentencing judge found that the acts were part of a planned criminal activity by the applicant in the sense that they were each premeditated.
In respect of Counts 3, 5, 8 and 12, which involved non-consensual penile/anal intercourse, the sentencing judge found that the “degrading nature of the anal intercourse” was an aggravating feature of those offences.
Counts 11 and 12 were offences of aggravated sexual assault where the applicant went to the home of the complainant equipped with an extension cord and a knife in a plastic bag. The objective seriousness of Count 11 was found to be of a “very high order”, being premeditated, committed in the home of the complainant during ongoing domestic violence perpetrated against her by the applicant, with the use of a weapon, non-use of a condom and in actual knowledge of a lack of consent.
Similarly, the objective seriousness of Count 12 was “of a very high order”, featuring the same aggravating factors as Count 11 but being more objectively serious because this was a count of penile/anal penetration followed by the applicant ejaculating inside the complainant.
Furthermore, the sentencing judge found that the moral culpability of the applicant at the time he committed Counts 11 and 12 was of the “highest order”, in circumstances where the applicant had been physically and sexually assaulting the complainant for some three years and six months, during which time he “inflicted long lasting and substantial injuries and instilled in her a fear for her life”.
In light of the grounds advanced on behalf of the applicant, it is necessary to set out in full the sentencing judge’s findings in respect of Count 12:

The applicant was aged 41 at the time of sentencing. Prior to August 2016, he had led a crime-free life. The applicant was born in southern Iraq, the third of four children in the family. He described a happy and harmonious family atmosphere. He was an above average student at school. He denied any academic, social or behavioural problems.
The applicant’s father and brother each fled Iraq, leaving him with a large measure of responsibility for looking after the family. During the Iraq war in 2003, when the applicant was aged 21, he witnessed death and devastation in the streets of southern Iraq.
Following the war, the applicant attended university in Basra where he obtained a degree in accounting. Acting on advice from his father, and fearing for his safety, the applicant fled Iraq in 2008 and joined his brother in Germany. He stayed in Germany for two years, working for his brother who had a hairdressing business.
The applicant returned to Iraq for the purpose of an arranged marriage and then immigrated to Australia on a spouse visa in 2012. The applicant and his wife settled in Western Sydney. After a period of separation, they reunited and now have two children together.
The sentencing judge observed that the applicant’s upbringing does not disclose a history of profound deprivation, a finding that is not challenged.
The report of John Machlin, clinical psychologist, disclosed a marked decline in the applicant’s circumstances in the period leading up to and surrounding his arrest. The applicant reported that he commenced using Tramadol in 2018 for back pain. His father died in 2019 following heart surgery. His mother subsequently died of pancreatic cancer. In response to his grief, the applicant reported turning to substance use by way of unprescribed Tramadol, alcohol, cocaine and methamphetamine. His attendance at work reduced and the applicant reported that he “avoided sunlight”.
Although not specifically referred to in the ROS, the applicant told the psychologist he experienced a series of sexual assaults in childhood which he had not disclosed to anyone. Mr Machlin declined to canvass this aspect of the history in detail, regarding it as best explored in a therapeutic forum.
The sentencing judge referred to the testimonials relied upon by the applicant, which painted a picture of him “as a person of good character who continues to have the support of family and friends”. In respect of the letter prepared by the applicant’s brother, the sentencing judge was unable to accept the statement that the applicant is a “kind-hearted person who has always went out of his way to help others”.
The sentencing judge was also unable to accept the statement that the applicant’s brother was “shocked when [he] first heard about the allegations”, in light of the fact that the complainant had photographed her injuries on the morning of 6 August 2020 and sent those photographs to the applicant’s brother who then forwarded them to the applicant (Exhibit G). As previously noted, the applicant’s brother thereafter received a text message from the applicant that stated: “Don’t worry about her, I’ve been for years like that with her”, “[s]he’s used to it”, and “[l]et her fuck and get killed”.
The sentencing judge accepted on the balance of probabilities that the applicant was the victim of an assault whilst in custody, during which he sustained significant injuries including fractured facial bones. It was also accepted that the applicant was admitted to the Prince of Wales Hospital on 22 September 2023, after suffering a suspected heart attack whilst in custody. The discharge summary from the hospital stated that the applicant had experienced an episode of “atrial fibrillation with rapid ventricular rate on the background of T2DM and hypercholesterolaemia”.
In respect of the applicant’s physical health, the sentencing judge observed that it is the responsibility of the executive government to ensure the safety of prisoners in custody. On the other hand, it was accepted that the physical health and safety of a prisoner is a relevant consideration in determining an appropriate sentence.
The sentencing judge found there was insufficient evidence to establish, on the balance of probabilities, that the conditions in custody would be made more onerous for the applicant in the event he is placed in protective custody. Similarly, the sentencing judge did not find that the hardship to the applicant’s family and dependents was a mitigating factor.
The applicant had no relevant prior criminal history. The sentencing judge noted that this is ordinarily a matter which would entitle an offender to leniency. However, in the present case the applicant’s crimes against the complainant spanned some four years, and in those circumstances the absence of a criminal history prior to August 2016 was not regarded as a mitigating factor.
The sentencing judge found that the applicant had a “complete lack of remorse” and that there was an absence of evidence as to his objective progress in respect of his substance misuse. Notwithstanding these findings, the sentencing judge was not of the view that the applicant has no prospects of rehabilitation, concluding that those prospects “cannot be described as better than not so good”.
The sentencing judge found that there is a risk of the applicant reoffending, especially against women with whom he develops an intimate relationship.

The applicant’s contention that the sentencing judge made the above finding in respect of the aggregate sentence, must be rejected. The finding was made during the sentencing judge’s consideration of Count 12. The preceding paragraph contains specific findings in relation to the objective seriousness of the act and circumstances constituting Count 12. Paragraph [165] contains the sentencing judge’s conclusion that Count 12 warrants the “imposition of the maximum penalty”. The sentencing judge was not “imposing” a sentence in respect of Count 12 but rather indicating “the sentence that would have been imposed” (pursuant to s 53A(2)(b) of the Sentencing Act*)*. Be that as it may, the point is that in making the finding, his Honour was addressing the reasons underpinning his conclusion that the offending and the circumstances of the applicant warranted the maximum penalty for Count 12 because that offence fell within the “worst category”.
The sentencing judge did have regard to the applicant’s subjective case (limited as it was) in determining the appropriate aggregate sentence, finding that the applicant’s physical health and safety was a relevant consideration.
Furthermore, the sentencing judge did not find (having regard to aspects of the applicant’s subjective case) that there were no prospects of rehabilitation. Instead, the sentencing judge concluded that the applicant’s prospects “cannot be described as better than not so good”.
We are not persuaded that the sentencing judge failed to have regard to the applicant’s personal circumstances in determining the aggregate sentence. We turn then to consider whether error has been demonstrated in the sentencing judge’s finding that none of the personal circumstances of the applicant operated to mitigate the sentence that would have been imposed for Count 12.
In setting out an indicative sentence of 20 years’ imprisonment with a non-parole period of 15 years, it can be taken that the sentencing judge found that this offence fell into the “worst category” and that the applicant’s personal circumstances did not operate to mitigate the sentence that would have been imposed in respect of that count.
Essentially, this part of ground 6 is related to ground 5 insofar as the complaint is that it was not open to the sentencing judge to characterise Count 12 as a “worst category” offence. The standard of appellate review in relation to claimed errors of fact made by a sentencing judge was recently considered by a five-judge bench of this Court in Hancock v R [2025] NSWCCA 213 at [72]-[74], where the Court concluded that the appropriate standard is the “reasonably open” test: see also Edwards v R [2026] NSWCCA 15 at [72]-[73]. A finding of “worst category” is not a finding of fact. It is a legal characterisation based upon findings of fact, analogous to an assessment of objective seriousness: Fisher v R [2026] NSWCCA 27 at [69]-[81].
The assessment of whether an offence is a “worst category” offence requires an evaluative assessment. It is not for this Court to simply substitute its own opinion for that of the court below.
The applicant’s conduct in respect of Count 12 has already been summarised in detail above at [78]-[80]. In essence, the applicant engaged in a premeditated act of penile/anal sexual intercourse without the consent of the complainant, knowing she was not consenting. He was not wearing a condom when he ejaculated following the sexual intercourse. This act was committed in the context of the applicant’s physical and sexual abuse of the complainant over a period of some three years and six months, during which time his actions caused the complainant to fear for her life and/or the removal of her child from her care.
By this time, the applicant was obtaining psychological satisfaction from his dominance of the complainant and inflicting gratuitous pain upon her. He took advantage of the fact that her cultural and religious beliefs meant that she was especially vulnerable. The findings that this offence was as one of “very great heinousness” and involved moral culpability “of the highest order”, were reasonably open to the sentencing judge.
The applicant’s subjective case was limited. He did not have a background of deprivation and disadvantage warranting a reduction of his moral culpability. Indeed, the evidence was that he had a harmonious and happy family background. Whilst the applicant reported a history of trauma associated with childhood sexual abuse and exposure to atrocities during the Iraq war, Mr Machlin found there is “an insufficient basis to conclude he is a long-term sufferer of PTSD from those early experiences”. Based on the applicant’s self-report of the period surrounding the offending, Mr Machlin stated that the applicant appeared to have “sustained a Substance Use Disorder and a reactive depressive condition, namely Adjustment Disorder with Depressed Mood”. Mr Machlin concluded that, whilst “bereavement, substance use and depression” appeared to have adversely affected the applicant in advance of the offences, he could not make firm conclusions about whether a diagnosable condition applied at specific stages of the applicant’s progressive decline. Accordingly, even taking the evidence at its highest, there was no evidence that at the time of the commission of the offences, the applicant was suffering from a mental health condition which materially contributed to his conduct.
The applicant demonstrated no remorse or acknowledgement of the harm occasioned to the complainant. In circumstances where the offending continued over years and where the actions of the applicant demonstrated a manipulative, coercive and violent course of conduct, it was correct to find that he poses a risk of reoffending, particularly against women with whom he developed an intimate relationship.
In summary, we are not persuaded that the sentencing judge failed to take into account the personal circumstances of the applicant in determining the aggregate sentence ultimately imposed. His Honour’s findings at paragraph [164] of the ROS related to his consideration of Count 12.
In respect of the complaint that the sentencing judge failed to have regard to the applicant’s personal circumstances in mitigation of the sentence for Count 12, his Honour was fully apprised of the applicant’s limited subjective case and referred to it throughout the ROS. Notwithstanding that subjective case, it was reasonably open to the sentencing judge to find that Count 12 is a “worst category” offence.
Accordingly, ground 6 is not made out.

Where there is clear error in an indicative term, it may signal error in the aggregate term: AA v R [2024] NSWCCA 132 at [4] (Ward P and Wilson J agreeing). However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive: JM v R at [40]; Lee v R [2020] NSWCCA 244 (“Lee v R [2020]”) at [32]; PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537 at [252]-[254]; Kirby v R [2021] NSWCCA 162 at [45]; Astill v R [2024] NSWCCA 118 (“Astill”) at [78]; Wright v R [2025] NSWCCA 108 (“Wright”) at [86].
As was explained by N Adams J (Harrison CJ at CL agreeing) in Dorsett v R [2024] NSWCCA 192 (“Dorsett”) at [159], prior to the decision in AJ v R [2023] NSWCCA 158 (“AJ v R”), it was well-established that there are two ways in which complaints that the indicative sentences informed error in the aggregate sentence could be established.
The first way in which error in an indicative sentence may be relevant in an appeal against an aggregate sentence is if it is a guide to whether error is established in relation to the aggregate sentence: JM v R at [40] cited in Dorsett at [160].
The second way in which error in one or more of the indicative sentences could establish error in the aggregate sentence is where patent error in an indicative sentence is established “and it has the capacity to influence the sentence”: Dorsett at [163] (emphasis in original) citing Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145] (N Adams J, Leeming JA agreeing); Benn v R [2023] NSWCCA 24 (Gleeson JA, N Adams and Ierace JJ agreeing).
In AJ v R, a third way was contended for on behalf of the applicant, namely that a manifestly excessive indicative sentence (latent error) requires this Court to intervene and resentence an offender without the need for any corresponding ground alleging manifest excess in the aggregate sentence. That approach was rejected in PN v R [2024] NSWCCA 86 at [49] and KS v R [2024] NSWCCA 147 at [74].
It should be acknowledged, however, that a different view was expressed by Dhanji J in Lee v R [2023] NSWCCA 70; RA v R [2024] NSWCCA 149 (“RA v R”); and Dorsett at [202]. In RA v R, Dhanji J addressed the issue by reference to the High Court’s decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. His Honour then observed the following:

The divergence of views was referred to in Dorsett where N Adams J carefully reviewed the various decisions of this Court dealing with the issue of whether an indicative sentence affected by latent rather than patent error can sustain an appeal against an aggregate sentence where the aggregate sentence itself is not manifestly unreasonable or unjust: at [164]-[176]. Her Honour concluded that the consistent position of this Court is that, while an argument that there has been latent error in an indicative sentence may support a ground of appeal contending that the aggregate sentence is manifestly excessive (or inadequate), it is not in and of itself error of the type which would require the Court to resentence an offender: at [177].
Although Dhanji J in Dorsett maintained his position that there is no principled reason to distinguish between cases involving patent or latent error in the determination of an indicative sentence, his Honour acknowledged that his view is not the prevailing view of the Court: at [202].
It may be that the divergence of views requires future consideration of the issue by this Court comprised of an expanded bench. However, the point was not the subject of submissions in this appeal, and the prevailing view remains that set out in JM v R, namely, that even in a case where an indicative sentence is determined to be excessive, it does not follow that the Court would proceed to resentence: at [40]. We proceed on the basis of that orthodox approach.
Even where an indicative sentence is determined to be “very high” or “excessive”, much will depend on the degree of notional concurrence between the indicative sentences that comprise the aggregate. In the present case, even if it had been established that Count 12 did not warrant the maximum penalty, the fundamental question remains whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality evident in the offences: JM v R at [40]; Delleci v R [2020] NSWCCA 4 at [61]; McTague v R [2020] NSWCCA 83 at [47]; Lee v R [2020] at [32]; Jackson v R [2021] NSWCCA 15 at [116]; Stevenson v R [2022] NSWCCA 133 at [110]-[111]; Kelly v R [2023] NSWCCA 104 at [44]; Astill at [78]; Wright at [86].
Here, it was reasonably open to find that Count 12 fell into the worst category case having regard to the matters set out at [415]-[416]. Even if that finding was not reasonably open, for the reasons set out in considering ground 4, the aggregate sentence is not manifestly excessive having regard to the degree of notional concurrence.
Accordingly, ground 5 is not made out.

In support of the contention that the aggregate sentence is manifestly excessive, the applicant pointed to “very high indicative sentences” in respect of Counts 11 and 12, and argued that the indicative sentences in respect of those counts signal an error in the aggregate term.
The applicant also called in aid comparative cases to submit that the aggregate sentence ultimately imposed was manifestly excessive. The applicant relied upon the Public Defender’s table of sentences imposed for offences contrary to s 61J since 2003. The applicant submitted that the Public Defenders’ table demonstrates that the aggregate sentence is manifestly excessive as no aggregate sentence exceeding that imposed upon him appears in the table.
The range of sentences demonstrated by the 56 cases contained in the Public Defender’s table for offences contrary to s 61J includes head sentences from 2 years to 24 years’ imprisonment, with non-parole periods ranging from 6 months to 18 years.
The applicant also relied upon the Public Defender’s table of sentences imposed for offences of aggravated sexual intercourse in company, contrary to s 61JA, which carries a maximum penalty of a life sentence and a standard non-parole period of 15 years. The applicant noted that there was only one matter (Aslett v R [2006] NSWCCA 49) in which the offender received a sentence that exceeded that imposed on the applicant, and in which an indicative sentence imposed was of 20 years or more.
The applicant focused on four comparative cases in support of the manifest excess ground, which can be summarised as follows.
In Thorne v R [2007] NSWCCA 10 (“Thorne”), the appellant was re-sentenced by this Court to an aggregate term of 11 years’ imprisonment with a non-parole period of 7 years and 6 months, for three counts of sexual assault committed against his former wife, including: one offence contrary to s 61J, the circumstances of aggravation being the malicious infliction of actual bodily harm immediately before the intercourse; and two offences contrary to s 61I. The indicative on re-sentence for the s 61J offence was 9 years and 6 months, with a non-parole period of 6 years. The same indicative of 7 years, with a non-parole period of 3 years and 6 months, was identified for both of the s 61I offences.
Unlike the present case, the offending arose from a single incident that occurred on the morning of 20 November 2004. The victim awoke to find the appellant naked in her bedroom. The appellant said he was going to have sexual intercourse with the victim “one last time” and threatened suicide. The appellant then pinned the victim down on the bed and hit her in the head a number of times. When she attempted to escape, the appellant grabbed her by her hair and repeated his earlier threats. The appellant proceeded to sexually assault the victim, including two instances of penile-vaginal intercourse (Counts 1 and 2) and one instance of penile-anal intercourse (Count 3), over the course of the next hour or so. During this time, the appellant responded to the victim’s repeated attempts to escape with physical violence, chasing the victim around the house and punching her, and continued to threaten to kill himself and kill the victim if she did not comply. After a neighbour intervened, the appellant fled and attempted to commit suicide.
Thorne can also be distinguished on the basis that the Court, on resentence, held that, in light of the appellant’s “disordered mental state” at the time of the offending, the offences were not within the mid-range of seriousness, but rather, fell below the mid-range of seriousness. With respect to the s 61J offence, the Court found that the aggravating feature was not of a particularly serious kind, and that there were no acts of degradation other than the assaults themselves. These findings are very different from the unchallenged findings of the applicant’s conduct in the present case.
In Simon v R [2013] NSWCCA 328, the appellant was sentenced following trial to an aggregate term of 22 years’ imprisonment, with a non-parole period of 17 years, for a total of 19 offences, including 12 offences contrary to s 61J, and two counts of attempted offences contrary to s 61J. The appellant followed a 22-year-old female stranger home, broke into her unit and threatened her with a knife which he found in the unit. The applicant proceeded to sexually assault the victim over the next three hours, including penile-vaginal intercourse, penile-oral intercourse and attempted anal intercourse. Whilst the assaults were accompanied by threats of violence, the victim did not sustain any physical injuries. The appellant was aged 37 years old and had a lengthy criminal record, which included sexual offences. The appeal was upheld in part, with the head sentence remaining unchanged and the non-parole period reduced to 16 years.
In R v Attwater; R v Maris [2017] NSWSC 1710, the offender (Mr Attwater) was sentenced following trial to an aggregate term of 19 years’ imprisonment, with a non-parole period of 14 years and 3 months, for one count of manslaughter by unlawful and dangerous act and one count of aggravated sexual assault (in company) contrary to s 61J. The indicative term specified for the s 61J offence was 12 years, with a non-parole period of 9 years. The offending arose from a single episode, during which Mr Attwater and the co-offender sexually assaulted the victim whilst she was unconscious. Mr Attwater was in a “casual, non-exclusive sexual relationship” with the victim at the time. Mr Attwater used his fist to repeatedly and forcibly penetrate the victim’s vagina. The victim died the following morning from blood loss caused by two major tears to the vaginal area. Mr Attwater was aged 43 at the time of sentence and 36 at the time of the offending and had a criminal history consisting of relatively minor offences. The sentencing judge found that none of Mr Attwater’s personal circumstances operated in mitigation of the sentence imposed.
The sentencing judge emphasised the need to avoid double punishment, as non-consensual intercourse was an aspect of both offences (at [28]–[29]), and held that it would offend the principle from R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 to find that the s 61J offence involved the intentional or reckless infliction of actual bodily harm (at [105]). The delay in prosecution was also taken into account in the sentence imposed, albeit to a moderate degree.
In R v Barrett [2021] NSWSC 126, the offender was sentenced, taking into account a 10% discount for his guilty plea, to an aggregate term of 20 years’ imprisonment, with a non-parole period of 14 years, for a total of nine offences, including six offences contrary to s 61J(1), one attempted offence contrary to s 61J(1), and two offences of indecent assault contrary to s 61L. A number of related sexual assault charges were also taken into account on a Form 1. The offender had previously been sentenced to 46 years’ imprisonment for the detention and murder of the victim, before these further sexual offences (committed by the offender during the victim’s detention) were discovered. Fresh evidence of the further sexual offences was found on a USB, in which the offender had recorded himself repeatedly sexually assaulting the victim, before stabbing the victim. The total duration of the recordings was approximately 60 minutes. Each sexual and indecent assault was committed whilst the victim was bound and gagged and involved the use of a hunting knife to threaten the victim.
The sentencing judge found the offending to be cruel and inhumane, “sexually sadistic”, and the most serious example of an offence of this nature. The offending was found to involve planning. However, the sentencing judge found that the further sexual offences formed part of a “continuing course of criminality”, which started with the victim’s detention and ended with her murder, and that the sentencing exercise was complicated by the need to avoid double punishment whilst complying with the principle of totality.
Although comparisons with specific past sentencing cases may be of considerable assistance, such comparisons must be exercised with caution: Hili v R; Jones (2010) 242 CLR 520; [2010] HCA 45 at [54]; Barbaro v R (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304]; Shalida v R [2024] NSWCCA 55 at [91]-[92]; Nataucu v R [2025] NSWCCA 94 at [35]-[37].
Each of the comparative cases reveals serious sexual and violent offending. However, the points of distinction between those cases and the present case are readily discernible. In the present case the number of offences and the gravity and duration of the offending conduct is more serious, requiring the imposition of an aggregate term of imprisonment that appropriately reflected the entirety of the criminality involved.
While the aggregate sentence is a stern sentence, it is not manifestly excessive having regard to the objective seriousness of the offending, the applicant’s high moral culpability, the weight to be afforded to the various purposes of sentencing and the applicant’s limited subjective case.
Ground 4 is not made out.

Saleh v R [2026] NSWCCA 42

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

JUDGMENT

The appeal against related offences

The Crown case

Count 1 – sexual intercourse without consent – 1-31 August 2016 at Merrylands

A cruise

Coercive actions

Count 2 – Sexual intercourse without consent 1 January 2017 – 17 May 2017 at Liverpool

Demand money with menaces – between 15 June 2018 and 8 June 2019 at Liverpool (s 166 certificate – sequence 26)

Assault occasioning actual bodily harm – on or about 11 September 2018 at Liverpool (s 166 certificate – sequence 10)

Uncharged assault on about 9 December 2018

Count 3 – sexual intercourse without consent in circumstances of aggravation (recklessly inflict actual bodily harm) – on or about 16 May 2019 at Liverpool

Assault occasioning actual bodily harm – at Liverpool on or about 4 December 2019 (s 166 certificate – sequence 13)

Counts 4 and 5 – each, sexual intercourse without consent in circumstances of aggravation (recklessly inflicting actual bodily harm) – on or about 12 January 2020 at Liverpool

Snapchat messages on 13 February 2020

Counts 6, 7 and 8 – 2 x assault and 1 x sexual intercourse without consent – on or about 10 April 2020 at Liverpool

Snapchat Messages on 11-12 May 2020

Count 9 – assault occasioning actual bodily harm – on or about 9 July 2020 at Liverpool

Count 10 – assault occasioning actual bodily harm – on or about 5 August 2020 at Liverpool

Counts 11 and 12 – each: sexual intercourse without consent in circumstances of aggravation (recklessly inflicting actual bodily harm) – between 8 August 2020 and 30 August 2020 at Liverpool

Evidence from CCTV cameras

Count 13 – assault occasioning actual bodily harm – on or about 13 September 2020 at Liverpool

Further evidence from CCTV cameras

Count 14 – assault occasioning actual bodily harm – on or about 30 October 2020 at Liverpool

Count 15 – assault occasioning actual bodily harm – on or about 30 November 2020 at Liverpool

Intimidation with intent to cause fear of physical or mental harm – on or about 7 December 2020 (s 166 certificate – sequence 28)

Events Leading Up to Assault (Count 16) on 15 December 2020

Count 16 – assault – on 15 December 2020 at Liverpool

Threaten to distribute intimate image without consent – between 1 August 2016 and 15 December 2020 at Liverpool (s 166 certificate – sequence 27)

Photographs and videos shown to the complainant in cross-examination

The complainant’s brother

Evidence of Damien

The neighbour, Tooey

The neighbour, Jasmine

The applicant’s neighbour

The complainant’s work colleague and friend

The applicant’s employee, Ellen

Engagement ring

The applicant’s friend, Saif

The applicant’s friend, Mahir

Senior Constable Brown

The work supervisor and friend, Janice

The defence case

Ground 1: The verdicts of guilty were unreasonable

Principles

(a) The guilty verdicts were inconsistent with the not guilty verdict for Count 1

(b) The guilty verdicts were otherwise unreasonable taking into account the whole of the material available

Ground 2: The trial judge erred in excluding MB33

Submissions of the applicant

Consideration

Ground 3 – Miscarriage of justice arising from fresh or new evidence that was not used by the applicant’s lawyers at trial

Conclusion as to appeal against conviction

The sentence appeal

Grounds of appeal

Circumstances of offending

Background

Sequence 27 (related offence): threaten to distribute intimate images

Events leading up to Count 2

Count 2: sexual intercourse without consent

Sequence 10 (related offence): assault occasioning actual bodily harm

Sequence 26 (related offence): demand money with menaces

Count 3: aggravated sexual intercourse without consent

Sequence 13 (related offence): assault occasioning actual bodily harm.

Counts 4 and 5: aggravated sexual intercourse without consent

Counts 6 and 7: common assault

Count 8: aggravated sexual intercourse without consent

Count 9: assault occasioning actual bodily harm

Count 10: assault occasioning actual bodily harm

Counts 11 and 12: aggravated sexual intercourse without consent

Count 13: assault occasioning actual bodily harm

Count 14: assault occasioning actual bodily harm