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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: Court of Criminal Appeal
Date: 21 March 2022
Judge(s): Meagher JA at [1]; Fullerton J at [94]; Adamson J at [123]

Background

The applicant was convicted following a 26-day judge-alone trial in the District Court on 21 counts of sexual intercourse without consent and two related offences against his wife of approximately 17 years. The trial judge accepted the complainant's evidence that the applicant subjected her to a series of sexual assaults in mid-to-late January 2015, which the applicant framed as "punishments" arising from his erroneous and fixated belief that she had been unfaithful with a man named Mr Glen Kelly.

The applicant filed a notice of intention to appeal in December 2017 but did not file his formal notice of appeal and application for leave until March 2021, almost three years out of time. He was self-represented both at trial and on appeal. He received a Legal Aid merit assessment in August 2020 advising that an appeal against conviction had no merit, after which he chose to proceed without legal representation.

The Court of Criminal Appeal considered three proposed grounds of appeal alongside the application for an extension of time in which to bring the appeal.

Legal Issues

  • Whether the Court should grant an extension of time to file the notice of appeal out of time
  • Whether the trial judge misdirected himself on the element of consent under the Crimes Act 1900 (NSW), s 61HA (Ground 2)
  • Whether the trial judge erred in admitting and using relationship and context evidence, including whether it was improperly used for tendency reasoning (Ground 3)
  • Whether the verdicts were unreasonable or could not be supported having regard to the evidence (Ground 1)

Decision

Extension of Time

The Court divided on the appropriate procedural pathway. Meagher JA, in a detailed assessment of the merits, reached the firm view that the unreasonable verdict ground was without merit and concluded that the interests of justice, viewed especially from the perspective of the complainant and the community, were served by dealing with that ground on its merits. His Honour accordingly granted the extension of time (at [49]-[50]). Fullerton J and Adamson J took a different approach: having independently concluded that none of the three grounds had any merit, they refused the extension of time on the basis that the prospects of success on any ground were nil (at [111]-[112], [123]).

Ground 2: Misdirection on Consent

The Court found no error in the trial judge's self-directions on consent. The trial judge correctly identified that the Crown must positively prove the complainant did not freely and voluntarily agree to sexual intercourse under s 61HA(2), and found consent negated both on that basis and under s 61HA(4)(c), which addresses agreement procured by threats of force or terror (at [56]-[58]). In oral argument, the applicant clarified that his true challenge was to the factual finding that the punishments were imposed by him rather than freely undertaken by the complainant. That factual challenge fell outside the scope of Ground 2 (at [59]). Leave to appeal on Ground 2 was refused.

Ground 3: Relationship and Context Evidence

The Court found no error in the admission or use of the relationship and context evidence. The trial judge admitted evidence of more than 40 incidents spanning the marriage to explain the relationship between the parties and place the charged offences in context, relying on established authority permitting such evidence (at [63]-[65]). The trial judge gave himself clear directions that the evidence could not be used for tendency reasoning, and the Court was satisfied those limitations were observed (at [66]-[67]). The Court also rejected the submission that the complainant gave no evidence of specific conduct influencing her delay in complaining, noting the Crown was entitled to draw inferences from the nature of the relationship as a whole (at [72]). Leave to appeal on Ground 3 was granted but the appeal was dismissed (at [78]).

Ground 1: Unreasonable Verdict

The Court applied the test from Filippou v The Queen (2015) and Pell v The Queen (2020): whether the evidence, assessed as a whole, was such that the trial judge, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt. The complainant's evidence was found to be credible and reliable, corroborated in significant respects by contemporaneous hospital records, police records, and the evidence of neighbours and family members (at [84]). The applicant's central argument, that the complainant consented because she wished to remain in the relationship, was rejected. The Court found her own evidence demonstrated she did not regard herself as having any choice but to submit to conduct framed as punishment, and that this did not constitute free and voluntary consent (at [88]). The description of the sexual activity as "dangerous," "brutal," "painful," and "unbearable," together with the complainant's leap from a carport roof to escape the applicant, was inconsistent with any sensible account of consensual conduct (at [89]). The Court was satisfied that it was well open to the trial judge to be satisfied beyond reasonable doubt as to the applicant's guilt on each count (at [91]). Ground 1 was not made out.

Orders Made

  • Application to extend time to appeal refused.

Key Takeaways

  • A conviction for sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) is not barred by the fact that the complainant and the accused were married. Section 61KA expressly removes the marital exemption, and the Court of Criminal Appeal confirmed that a belief in a right to intercourse with one's spouse regardless of consent is legally wrong (at [124]).

  • Relationship and context evidence spanning a long marriage is properly admissible to explain the parties' relationship, place charged offences in context, and illuminate why a complainant may have delayed reporting sexual assaults, provided the trial judge gives clear directions that it cannot be used for tendency reasoning (at [63]-[67]).

  • Where a complainant agrees to sexual activity framed as "punishment" because she believes she has no choice, given threats of further violence and the need to protect her children, that submission does not constitute free and voluntary consent under s 61HA(2) of the Crimes Act (at [88]).

  • In an unreasonable verdict appeal from a judge-alone trial, the appellate court examines whether the evidence, including any inconsistencies, discrepancies, or inadequacies, was such that the trial judge acting rationally ought to have entertained a reasonable doubt. Where the trial judge's assessment of the complainant as credible and reliable is supported by contemporaneous corroborating material, that standard is a demanding one to meet (at [82], [84], [91]).

  • On an application for extension of time to appeal out of time, the prospects of success on the proposed grounds of appeal are the principal consideration. Where all proposed grounds are devoid of merit, the extension will be refused regardless of the applicant's reasons for the delay (at [109], [111]-[112]).

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), s 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