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Court of Criminal Appeal 21 March 2022

DS v R

[2022] NSWCCA 55

Sexual offencesDomestic & family violence
CRIMINAL LAW APPEALS TRIAL BY JUDGE ALONE APPEALS EXTENSION OF TIME REFUSED

Citation: DS v R [2022] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 21 March 2022
Judge(s): Meagher JA; Fullerton J; Adamson J

Background

The applicant (DS) was convicted after a 26-day judge-alone trial in the District Court on 21 counts of sexual intercourse without consent and two related offences. The offences were committed against the applicant's wife, a woman of Fijian-Indian background, across a period in January 2015. The trial judge, Hatzistergos DCJ, found that DS perpetrated the assaults as "punishment" arising from his erroneous but fixed belief that his wife had been having an affair.

The complainant and DS had been married for approximately 17 years at the time of the offences. The Crown led extensive evidence of a history of domestic violence throughout the marriage. The trial judge delivered detailed reasons spanning 935 paragraphs and imposed an aggregate sentence of 22 years imprisonment with a non-parole period of 15 years and 4 months.

DS filed a notice of intention to appeal in December 2017, but his formal application for leave to appeal was not filed until March 2021, almost three years out of time. He also applied for an extension of time in which to appeal, citing delays in obtaining a Legal Aid merit assessment and his eventual decision to represent himself.

  • Whether the application for an extension of time to file the appeal should be granted
  • Whether the trial judge misdirected himself on the element of consent under s 61HA of the Crimes Act 1900 (NSW)
  • Whether the trial judge erred in admitting relationship evidence or in using that evidence to engage in tendency reasoning
  • Whether the verdicts were unreasonable or could not be supported by the evidence

Decision

The Court refused the extension of time application on the basis that none of the proposed grounds of appeal had sufficient merit to warrant the extension. The Court examined each ground in detail and found that none could succeed, making it futile to grant additional time.

On the unreasonable verdict ground, the Court applied the test from Filippou v The Queen (2015) 256 CLR 47, treating the trial judge's findings as equivalent to a jury verdict. The complainant's evidence was found to be credible and reliable, and much of it was corroborated by contemporaneous police records, hospital records, and the evidence of neighbours, family members, and others. The Court found no basis on which a rational fact-finder, accepting that evidence, ought to have entertained a reasonable doubt as to guilt. DS did not contest the physical acts underlying the majority of the counts, confining his challenge largely to the question of consent and the complainant's delay in reporting.

On the misdirection ground, the Court concluded that the trial judge had correctly directed himself on the elements of consent under s 61HA of the Crimes Act 1900 (NSW). No error in the judge's self-direction was established. Similarly, the Court rejected the argument concerning relationship evidence, finding that the evidence was properly admitted and that the trial judge's use of it was not erroneous.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on an unreasonable verdict appeal from a judge-alone trial, a finding of guilt is treated equivalently to a jury verdict, and will not be disturbed unless there is no or insufficient evidence to support it, or the finding is otherwise unreasonable.

  • Where a trial judge has assessed the complainant's evidence as credible and reliable, the appellate court examines the record to determine whether inconsistencies, discrepancies, or other inadequacies ought nonetheless to have generated a reasonable doubt, applying Pell v The Queen (2020) 268 CLR 123.

  • No corroboration of a complainant's evidence is required before a judge in a judge-alone trial may return a verdict of guilty on a sexual assault charge.

  • In refusing an extension of time to appeal, the Court undertook a merits assessment of each proposed ground and declined to grant additional time where no ground demonstrated sufficient prospects of success to justify the extension.

  • Relationship evidence spanning many years of a marriage, corroborated by contemporaneous police records and other witnesses, was properly admitted and used by the trial judge to contextualise the complainant's conduct, including her submissions to the offending and her delay in reporting.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 61H, 61HA, 61I, 61J, 61JA, 61K, 61KA, 344
- Crimes (Sexual Assault) Amendment Act 1981 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 10
- Criminal Appeal Rules (NSW), r 3.1(3)
- Criminal Procedure Act 1986 (NSW), s 294

Cases:
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Franklin v R [2021] NSWCCA 260
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Olivieri v R [2016] NSWCCA 169
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21
- Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12
- TA v R [2015] NSWCCA 151
- Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17