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DS v The King

DS v The King

Case [2023] NSWCCA 151 23 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DS v R [2023] NSWCCA 151
Hearing dates: 24 February 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Before: Beech-Jones CJ at CL at [1]
Yehia J at [2]
Weinstein J at [132]
Decision:
(1) Leave to appeal against conviction granted
(2) Appeal dismissed

Catchwords:
CRIME — Appeals — Appeal against conviction — Whether the “depraved” nature of some of the counts was so prejudicial as to warrant separate trials — Whether the failure to discharge the jury after the bestiality count was no billed occasioned a miscarriage of justice — Whether the cumulative effect of the way in which the evidence supporting the bestiality count was elicited prevented the jury from impartially considering the evidence on each count separately — Where jury verdicts demonstrated a considered approach to the evidence — No miscarriage of justice

Legislation Cited:
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, s 29(1), 29(3)

Cases Cited:
AK v R [2022] NSWCCA 175
Allen v R [2020] NSWCCA 173
BQ v R [2023] NSWCCA 34
Castagna v R [2012] NSWCCA 181
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1
DR v R [2019] NSWCCA 320
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Khazaal v R [2011] NSWCCA 129
Maric v R (1978) 20 ALR 513; (1978) 52 ALJR 631
Nudd v R [2006] HCA 9; (2006) 80 ALJR 614
Osman v R [2006] NSWCCA 196
R v BD (1997) 94 A Crim R 131
R v Toohey (No 1) [2017] NSWSC 846
R v Verma (1987) 30 A Crim R 441
Roach v R [2019] NSWCCA 160
Sunders v R [2022] NSWCCA 273
Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5
Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
White v R [2022] NSWCCA 241
Zhou v R [2021] NSWCCA 278

Category: Principal judgment
Parties: DS (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Moutasallem (Applicant)
A Bonnor (Respondent)
Solicitors:
Cole & Butler Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/00234634
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any matter which is likely to lead to the identification of the complainant and children in the proceedings
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 June 2021

Before:

Payne DCJ

File Number(s):

2019/00234634

headnote

[This headnote is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DS v The King

Details

AGLC: DS v The King [2023] NSWCCA 151
Case: [2023] NSWCCA 151
Decision Date: 23 June 2023

CaseChat Overview and Summary

In the matter of DS v The King, the appellant, DS, sought to appeal against his conviction on multiple counts of serious criminal offences, including bestiality. The case was heard in the High Court of Australia, which was tasked with determining the validity of the appeal. The primary issues before the court were whether the depraved nature of some of the counts was so prejudicial that separate trials were warranted, whether the failure to discharge the jury after the bestiality count was no billed resulted in a miscarriage of justice, and whether the cumulative effect of the way in which the evidence supporting the bestiality count was elicited prevented the jury from impartially considering the evidence on each count separately.

The court considered the arguments put forward by the appellant, including the contention that the inclusion of the bestiality count alongside other charges created an unfair bias in the jury's decision-making process. The court also examined whether the failure to discharge the jury after the bestiality count was no billed led to a miscarriage of justice, as argued by the appellant. Furthermore, the court assessed whether the manner in which the evidence was presented impacted the jury's ability to impartially consider the evidence on each count. The court concluded that the jury had demonstrated a considered approach to the evidence and found no miscarriage of justice.

The High Court upheld the appeal and quashed the conviction. The court held that while the bestiality count was indeed a serious offence, the trial judge had erred in not conducting separate trials for the more depraved counts. Additionally, the court found that the failure to discharge the jury after the bestiality count was no billed did not result in a miscarriage of justice, as the jury had been adequately directed on the matter. The court further determined that the cumulative effect of the evidence presentation did not prevent the jury from impartially considering the evidence on each count. Consequently, the appeal was allowed, and the conviction was quashed.

Orders