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District Court 4 August 2017

R v DS

[2017] NSWDC 207

Sexual offencesAssault & violence
CRIMINAL LAW TRIAL BY JUDGE ALONE DIRECTIONS UNREPRESENTED ACCUSED PRESCRIBED SEXUAL OFFENCES WITNESS INTERMEDIARY

Citation: R v DS [2017] NSWDC 207
Court: District Court of New South Wales
Date: 4 August 2017
Judge: Hatzistergos DCJ

Background

The accused was charged on a 24-count indictment arising from a series of alleged sexual and physical assaults against his wife (the complainant) at Leumeah in January 2015. The charges included 22 counts of sexual intercourse without consent, one count of attempted sexual intercourse without consent, and one count of recklessly causing grievous bodily harm. The alleged conduct occurred over a concentrated period between 13 January 2015 and 31 January 2015, with several counts specifically dated to 27, 29, and 31 January 2015.

This was the third trial in the matter. The accused appeared unrepresented in each trial, and the two previous trials had ended with juries being discharged by consent. For the third trial, the accused applied for and was granted a judge-alone trial under s 132A(1) of the Criminal Procedure Act 1986 (NSW), with the Crown's consent.

The complainant gave evidence via audiovisual link, with the assistance of both a support person and a witness intermediary. The accused exercised his right not to give evidence at trial, though records of interview (ERISPs) conducted on 1 February 2015 were before the court.

  • Whether the elements of sexual intercourse without consent under ss 61I, 61H, and 61HA of the Crimes Act 1900 (NSW) were established on each count, including whether the accused knew the complainant was not consenting
  • Whether the element of attempted sexual intercourse without consent under s 61P was made out
  • Whether the accused recklessly caused grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW) in relation to an incident in which the complainant fell from a balcony
  • How to approach the complainant's credit as an unrepresented accused's witness, including the significance of delay in complaint and alleged motive to fabricate
  • The proper use of context and relationship evidence, including the complainant's account of a history of coercive and violent conduct during the marriage, and the limits on using such evidence as tendency evidence
  • The procedural requirements for conducting a judge-alone trial involving an unrepresented accused and a vulnerable complainant, including the use of special witness measures

Decision

Hatzistergos DCJ found the accused guilty on 23 of the 24 counts. The sole acquittal was on Count 5, one of the sexual intercourse without consent charges. The court was satisfied beyond reasonable doubt on each of the remaining counts that sexual intercourse had occurred, that the complainant had not consented, and that the accused knew she was not consenting. In a number of counts, consent was found to have been negated by threats of force or terror.

On the grievous bodily harm count (Count 24), the court found that the accused had chased the complainant, causing her to fall from a balcony and sustain multiple injuries. The court was satisfied the accused was reckless as to causing actual bodily harm, and that the harm suffered amounted to grievous bodily harm within the meaning of the Crimes Act.

The complainant's credit was carefully assessed. The court considered the delay in making a complaint, potential motive to lie, and inconsistencies across accounts. It concluded the complainant was a credible witness whose evidence was reliable in its essential particulars. The court accepted that the complainant's vulnerability during the relationship, and the coercive dynamic it involved, provided a rational explanation for the delay in complaint.

Context and relationship evidence, covering the history of the accused's conduct during the marriage, was admitted to show that the charged acts were not isolated and to assist in evaluating the accused's knowledge that the complainant was not consenting. The court was careful to direct itself that this material could not be used as tendency evidence, drawing on authority including DVJ v R and KJS v R. The accused's election not to give evidence was treated in accordance with s 89(1) of the Evidence Act 1995 (NSW) and the principles in Petty v The Queen, meaning no adverse inference was drawn from his silence.

Orders Made

The accused was found:

  • Guilty of Count 1 (sexual intercourse without consent)
  • Guilty of Count 2 (sexual intercourse without consent)
  • Guilty of Count 3 (sexual intercourse without consent)
  • Guilty of Count 4 (sexual intercourse without consent)
  • Not Guilty of Count 5 (sexual intercourse without consent)
  • Guilty of Counts 6 through 23 (sexual intercourse without consent, except Count 8 which was attempted sexual intercourse without consent)
  • Guilty of Count 24 (recklessly cause grievous bodily harm)

Key Takeaways

  • Context and relationship evidence of prior conduct within a marriage is admissible to establish that charged sexual acts were not isolated incidents and to support an inference about the accused's knowledge of the complainant's lack of consent, but the court must direct itself that such evidence cannot be used as tendency evidence.
  • Delay in complaint by a complainant in an alleged domestic sexual violence context does not automatically undermine credibility; the court assessed the complainant's vulnerability within the relationship as a rational explanation for the delay, consistent with principles established in cases such as R v AH and Wilson v The Queen.
  • Under s 89(1) of the Evidence Act 1995 (NSW), an accused's election not to give evidence at trial carries no adverse inference; the court applied this direction carefully despite the accused being unrepresented.
  • A judge-alone trial is available to an unrepresented accused under s 132A(1) of the Criminal Procedure Act 1986 (NSW), provided the accused receives the requisite advice and a certificate is provided under s 132(6), and the Crown consents.
  • Special witness measures, including evidence by audiovisual link, use of a support person, and appointment of a witness intermediary, are available cumulatively for complainants in prescribed sexual offence proceedings under the Criminal Procedure Act 1986 (NSW).

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 35(2), 61H, 61HA, 61I, 61P
  • Criminal Procedure Act 1986 (NSW), ss 132, 132A(1), 133, 166
  • Evidence Act 1995 (NSW), ss 89(1), 177

Cases

  • AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
  • DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272
  • Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
  • Fleming v R (1998) 197 CLR 250
  • KJS v R [2014] NSWCCA 27
  • MJW v The Queen (2005) 80 ALJR 329; [2005] HCA 74
  • Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34
  • R v AH (1997) 42 NSWLR 702
  • R v AN (2000) 117 A Crim R 176
  • R v Anastasiou (1991) 21 NSWLR 394
  • R v Jovanovic (1997) 98 A Crim R 1
  • R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998)
  • R v Markuleski (2001) 52 NSWLR 82
  • R v Matthews (1990) 58 SASR 19
  • R v Zorad (1990) 19 NSWLR 91
  • Wilson v The Queen (1970) 123 CLR 334