Background
The appellant was tried on two counts of sexual assault. At trial in August 2025, a jury convicted him on count 1 (sexual assault) but acquitted on count 2 (sexual assault with aggravation). The alleged offending occurred in September 2011. The complainant went to police the morning after the incident and made an oral statement to Officer Sanderson. He did not proceed with a formal written complaint at that time, citing shame and concerns about his recent promotion to foreman. Approximately eight months later, the complainant told his ex-wife about the incident. A formal written statement was given to police only in 2022—over a decade later—which formed the basis of the charges and the Crown’s case at trial.
The allegations involved sexual contact while the complainant was heavily intoxicated at his home after a barbecue. The complainant testified that the appellant performed oral sex on him after he woke to camera flashes, and then placed the complainant’s hand on the appellant’s penis before lying beside him. The appellant then left the following morning, and the complainant drove to the police station to report the incident.
The sole evidence of the alleged offending came from the complainant’s testimony. The court allowed the appellant’s appeal on the ground that the verdict was unreasonable and unsupported by the evidence as a whole, citing material inconsistencies between the complainant’s trial account and his preliminary complaints.
The Court’s Holding
The Court of Appeal, comprising Brown JA, Bradley JA, and Doyle JA, held that the conviction must be set aside. The court identified significant inconsistencies between what the complainant told Officer Sanderson the morning after the incident and what he testified to at trial. Officer Sanderson’s contemporaneous notes recorded the complainant describing the appellant “fondling” or “wanking” the complainant’s penis and inserting his finger into the complainant’s anus. By contrast, at trial the complainant described the appellant performing oral sex on him. Additionally, the complainant’s account at trial included the detail that the appellant placed the complainant’s hand on the appellant’s penis—an act not mentioned in any preliminary complaint.
Critically, the complainant himself acknowledged during cross-examination that his memory of events was better the morning after the incident (when he spoke to Officer Sanderson) than it was in 2022 or at trial. The court found this created an internal logical inconsistency: the jury had accepted the complainant as credible and reliable, yet in doing so they necessarily rejected the account he gave when his memory was fresher and more reliable. The court concluded that even allowing for the jury’s advantages in observing the complainant and assessing his credibility, this material inconsistency created a significant possibility that an innocent person had been convicted.
The court acknowledged that preliminary complaint evidence is admissible only to test a complainant’s credibility and reliability, not as independent proof of the offending. It also recognized that inconsistencies in sexual assault complaints are common and expected, given trauma, the passage of time, and differences in how complainants confide in different people. However, the court found that the inconsistencies here were sufficiently material—particularly given the complainant’s express concession that his 2011 memory was superior to his later recollections—that they undermined the reasonableness of the guilty verdict as a whole.
Key Takeaways
- An appellate court may overturn a jury conviction as unreasonable if material inconsistencies in the evidence, considered as a whole, create a significant possibility of wrongful conviction, even where the jury found the complainant credible.
- A complainant’s own concession that their memory was fresher and more reliable at an earlier date can render later inconsistent accounts dispositive when those inconsistencies concern material facts about the alleged offending.
- Preliminary complaint evidence serves a limited purpose—assessing credibility and reliability—and does not independently prove offending; however, when it directly contradicts a complainant’s trial evidence, particularly where the complainant acknowledges their memory was superior at the time of the complaint, it can support appellate intervention.
- The appellate court applies the test from *R v ZT* (2025) 281 CLR 137: even making full allowance for jury advantages in assessing witness credibility, the court must ask whether it would be dangerous to allow the verdict to stand.
Why It Matters
This decision clarifies the appellate standard for reviewing jury verdicts in sexual assault cases based on evidentiary grounds. While inconsistencies between a complainant’s various accounts are common and expected in sexual assault prosecutions, courts will intervene when those inconsistencies are sufficiently material and when the complainant’s own evidence establishes that their account at an earlier time was more reliable. The case reflects tension between respecting jury verdicts on credibility determinations and the logical demands of common sense—here, that fresher memories are generally more trustworthy than memories from over a decade later.
For practitioners, the decision reinforces that complainants’ acknowledgments about the reliability of their own recollections at different points in time can have significant evidentiary weight on appeal. It also demonstrates that appellate courts remain willing to set aside jury verdicts in sexual assault cases when the evidentiary foundation—inconsistencies between preliminary complaints and trial testimony—combined with the complainant’s own admissions about memory degradation, creates a significant possibility of wrongful conviction, notwithstanding the jury’s assessment of the complainant’s general credibility.