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Court of Criminal Appeal 23 June 2023

DS v R

[2023] NSWCCA 151

Sexual offencesAssault & violence

Citation: DS v R [2023] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 23 June 2023
Judge(s): Beech-Jones CJ at CL, Yehia J (primary judgment), Weinstein J

Background

The applicant was tried in the District Court at Tamworth before Payne DCJ on nine counts of physical and sexual assault against his former de facto partner, spanning conduct alleged to have occurred between November 1992 and November 2018. The counts included assault occasioning actual bodily harm, use of offensive weapons with intent to assault, and multiple counts of sexual intercourse without consent. The relationship had lasted several decades, and the Crown case relied primarily on the complainant's evidence.

Among the counts was count 5, which alleged attempted sexual intercourse without consent and which involved allegations of bestiality. In his opening address, the Crown Prosecutor described the allegation as involving the applicant attempting to insert their dog's penis into the complainant's vagina. When the complainant gave evidence, she said she was actually penetrated rather than subjected only to an attempt. The Crown sought to amend count 5 to reflect that evidence, but the amendment was refused. The Crown then directed no further proceedings on count 5.

The applicant had sought, before trial, to have counts 4 and 5 severed from the indictment. He also applied to have the jury discharged once count 5 was no-billed, on the basis that the bestiality evidence had irrevocably prejudiced the jury against him. Both applications were refused by the trial judge. The jury ultimately returned guilty verdicts on four counts and the statutory alternative to a fifth, returning not guilty verdicts on two counts, and receiving a directed not guilty verdict on a seventh.

  • Whether the trial judge erred in refusing to sever counts 4 and 5 from the indictment before trial commenced, on the basis that those counts were so prejudicial as to prevent a fair trial on the remaining counts.
  • Whether the trial judge erred in refusing to discharge the jury after count 5 was no-billed, given that evidence of the bestiality allegation had already been placed before the jury.
  • Whether either refusal, individually or cumulatively, occasioned a miscarriage of justice.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, with Yehia J delivering the principal judgment and Beech-Jones CJ at CL and Weinstein J agreeing.

On the first ground, the Court found the applicant had not demonstrated any error by the trial judge in refusing to sever counts 4 and 5. The trial judge correctly identified that the other counts on the indictment themselves involved serious and extremely violent conduct. Some degree of prejudice from multiple counts on a single indictment is inherent in any such trial, and the applicant did not establish that the particular prejudice from counts 4 and 5 crossed the threshold warranting severance.

On the second ground, the Court found no miscarriage of justice arose from the refusal to discharge the jury after count 5 was no-billed. The jury's verdicts demonstrated that it had approached the evidence carefully and conscientiously, treating each count separately. The jury acquitted on two counts and returned a directed not guilty on a third, which was inconsistent with the applicant's argument that the bestiality evidence had caused the jury to simply reject all of his denials and accept the complainant wholesale.

Beech-Jones CJ at CL agreed that the trial judge's decisions on severance and discharge were neither errors nor irregularities in the trial. Even accepting that those decisions could have provided a foundation for a miscarriage of justice argument, the overall conduct and outcome of the trial did not bear that argument out. The applicant had not lost a chance of acquittal that was fairly open to him.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that some degree of prejudice arising from multiple counts on an indictment is an inherent feature of multi-count trials and does not, of itself, warrant severance.
  • The ultimate question on both grounds of appeal was whether a miscarriage of justice was occasioned, a concession the applicant's counsel made during oral argument and which the Court treated as the governing test.
  • Where a jury returns a mixed verdict, including acquittals and directed not guilty findings, that pattern of verdicts can demonstrate that the jury conscientiously compartmentalised the evidence rather than being overwhelmed by prejudicial material.
  • No miscarriage of justice was established merely because highly distressing or depraved evidence was placed before the jury, where that evidence related to a count that was ultimately no-billed, provided the jury's verdicts otherwise reflected careful and independent consideration.
  • Refusing to discharge a jury after a no-bill direction does not automatically constitute error, particularly where the remaining counts themselves involved serious allegations and the jury demonstrated a discriminating approach to the evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5(1)(b), 6(1)
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 61I, 61J(1), 344A(1)
- Criminal Procedure Act 1986 (NSW), ss 21(2), 21(2)(a), 29, 29(1), 29(3)

Cases:
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Nudd v R [2006] HCA 9; (2006) 80 ALJR 614
- Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5
- De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Roach v R [2019] NSWCCA 160
- DR v R [2019] NSWCCA 320
- Allen v R [2020] NSWCCA 173
- AK v R [2022] NSWCCA 175
- BQ v R [2023] NSWCCA 34
- Sunders v R [2022] NSWCCA 273
- Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
- Castagna v R [2012] NSWCCA 181
- Osman v R [2006] NSWCCA 196
- R v BD (1997) 94 A Crim R 131
- Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
- R v Verma (1987) 30 A Crim R 441
- Khazaal v R [2011] NSWCCA 129
- Maric v R (1978) 20 ALR 513