DS v The The Queen - [2022] NSWCCA 55

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DS v R [2022] NSWCCA 55
Hearing dates: 15 October 2021
Date of orders: 21 March 2022
Decision date: 21 March 2022
Before: Meagher JA at [1];
Fullerton J at [94];
Adamson J at [123]
Decision:
Application to extend time to appeal refused.

Catchwords:
CRIMINAL LAW – appeals – application for leave to appeal against conviction – proposed appeal on mixed questions of fact and law – trial by judge alone – where applicant convicted on 21 counts of sexual intercourse without consent and two related offences – where offences committed against wife as “punishment” for alleged infidelity – whether trial judge misdirected himself as to element of consent under Crimes Act 1900 (NSW), s 61HA – whether trial judge erred in admitting evidence as to relationship or in using it to engage in tendency reasoning – whether verdict unreasonable or cannot be supported
CRIMINAL LAW – appeals – application for extension of time in which to appeal – whether merit in any proposed ground of appeal – extension of time refused

Legislation Cited:
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 Cited:
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

Category: Principal judgment
Parties: DS (Applicant)
Regina (Respondent)
Representation:
Counsel:
Applicant (In person)
G Newton (Respondent)
Solicitors:
Applicant (In person)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/110707; 2015/30628
Publication restriction:
An order was made at Parramatta District Court on 28 March 2017 pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), s 7(a) as follows: That the names AS, WS, JS and ES be suppressed on the grounds that it is necessary to avoid causing undue distress or embarrassment to a party or witness in criminal proceedings involving offences of a sexual nature. AS is to be referred to by the pseudonym AS, WS to by the pseudonym WS, JS to by the pseudonym JS and ES to by the pseudonym ES.
Publication of any matter which could identify the victim is prohibited under Crimes Act 1900 (NSW), s 578A.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 207; [2017] NSWDC 358

Date of Decision:

04 August 2017

Before:

Hatzistergos DCJ

File Number(s):

2015/110707; 2015/30628

Judgment

MEAGHER JA: The applicant (DS) seeks leave under Criminal Appeal Act 1912 (NSW), s 5(1)(b) to appeal against his conviction on 21 counts of sexual intercourse without consent, and two related offences, following a judge alone trial in the District Court before Hatzistergos DCJ. That trial, including oral submissions, occupied 26 days between February and July 2017. The judgment was delivered on 4 August 2017 (R v DS [2017] NSWDC 207).

Overview

The complainant is a woman of Fijian-Indian background. At the time the relevant offences were committed in January 2015, she was 51 years of age and had been married to DS for approximately 17 years. She came to Australia in 1996 and they married in 1998. DS is also of Fijian-Indian descent and had a daughter from an earlier relationship, ES. Their first child, a son WS, was born in 2001 and diagnosed with autism at age 2 and a half, and with cancer in 2011. In 2003 they had a daughter, JS. From around November 2011 the family – the complainant, DS and their two children – lived in their home in south-west Sydney.
By mid-2014, DS had stated to the complainant that he wanted to divorce her and sell the house. Evidence as to their relationship showed that from the outset of the marriage, DS had at times been violent towards the complainant. For instance, a complaint made in July 2001 in support of an Interim Apprehended Violence Order recorded:

There has been a history of domestic violence in the relationship over the past three months however the victim has not reported this to police. The victim states that in the past the defendant has said, ‘I am going to kill you and cut your head off. I will leave the baby beside your body and go to the airport fly back to Fiji.’

The Crown case was that DS sexually assaulted the complainant on more than 15 occasions (resulting in 23 separately charged sexual assault offences) commencing in mid-January 2015, in each case as a “punishment” arising out of DS’s (erroneous but fixated) belief that the complainant had had an affair with a Mr Glen Kelly. All but one of the offences were alleged to have occurred at the family home. The allegations included fellatio, fellatio with urination in the complainant’s mouth, digital/vaginal penetration, vaginal penetration with a “sex toy”, and attempted anal penetration with that toy. Attached to these reasons and marked Schedule 1 is a document prepared by the Crown as part of its written submissions. That document contains a brief description of each count (except count 24 – recklessly cause grievous bodily harm), as well as extracts from the complainant’s evidence in relation to each count which the trial judge accepted as true.

The indictment

The indictment contained the following 24 counts:

Counts 1-7 and 9-23: Sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW)

Counts 1-7 and 9-13: Between 13 January 2015 and 31 January 2015
Count 14: On 27 January 2015
Counts 15-17: On 29 January 2015
Counts 18-23: On or about 31 January 2015

Count 8: Attempt sexual intercourse without consent, contrary to ss 61I and 344A(1) of the Crimes Act

Between 13 January 2015 and 31 January 2015

Count 24: Recklessly cause grievous bodily harm, contrary to s 35(2) of the Crimes Act

On or about 31 January 2015

DS’s case was that counts 1, 2 and 3 did not happen and that whilst there was consensual fellatio in relation to the incidents addressed by counts 4 and 6, there was no urination involved (J[593]). Count 5 was not formally denied. In relation to counts 7 and 9 to 23, DS did not dispute that the physical acts involving the sexual intercourse occurred. However, he maintained that she consented to the intercourse and that he did not know that she was not consenting.

The verdict and sentence

The trial judge found DS guilty of counts 1 to 4 and 6 to 24, and not guilty of count 5.
On 8 December 2017 the trial judge imposed an aggregate sentence of 22 years imprisonment with a non-parole period of 15 years 4 months, to commence on 19 February 2015 (R v DS (No 2) [2017] NSWDC 358). There is no appeal from that sentence.

The grounds of appeal

DS seeks leave to appeal against his conviction on each of the 23 counts on the following grounds:

1. Unreasonable, or cannot be supported by the evidence.
2. His Honour misdirected himself on the elements of the offences (negation of consent).
3. Relationship evidence had no probative force on the question of consent.

DS filed a notice of intention to appeal from conviction and sentence on 19 December 2017. His notice of appeal and application for leave to appeal from conviction was filed on 3 March 2021, almost 3 years out of time. On the same day, he filed a notice of application for an extension of time with respect to the filing of a notice of appeal and application for leave to appeal. That notice records as the reasons for an extension of time:

There were Legal Aid lawyers on the case until 28/7/20. There was no recorded merit assessment after two and a half years. The appellant decided to appeal on his own.
-No recorded merit assessment till 28/7/20.
-Applicant waited for two and a half years to appeal
-Applicant decided to represent himself.
-Notice of intention to appeal was lodged in December 2017

The trial

The trial judge’s reasons for the findings of guilt on 23 of the 24 counts occupy 935 paragraphs. The complainant gave her evidence over 17 days. That evidence was given by audio-visual link and an intermediary, asking questions formulated by DS, conducted the cross-examination of the complainant for DS. DS did not give evidence.
Whilst the trial judge found that the complainant’s recollection of some events was not accurate, he did not find her to be either “dishonest or generally unreliable in her account” (J[74]). In relation to each count, he accepted the complainant’s version of events. The remaining witnesses to give oral evidence included four police officers, four neighbours of the complainant and DS, two cousins and a sister-in-law of the complainant, Mr Kelly, a social worker and a child protection case worker (J[107]). The documents tendered included numerous statements of police officers, COPS (Computerised Operational Policing System) database entries, including as made in relation to earlier non-charged incidents, as well as various hospital records.

Sequence of non-charged incidents and charged offences

The first in time of the charged offences, count 1, occurred around 16 January 2015. It was followed sequentially, according to the trial judge’s findings, by counts 2, 3, 7, 8 (the attempted sexual assault), 4, 6, 9, with the remaining counts 10 to 21 occurring in that sequence. Thereafter counts 18, 19, 20, 21, 23 and 22 occurred in the evening of 31 January 2015. Finally, count 24, which involved the complainant jumping off a garage roof and breaking her leg, occurred in the circumstances described below. The trial judge’s findings in relation to those charged offences commence at J[482] and conclude at J[935].
The Crown led evidence as to the relationship between DS and the complainant spanning the period from 2001 until mid-January 2015. In all, the trial judge identified 41 incidents, some of which (incident 25 and following) are recorded as having occurred after count 1 or as part of one or more of the counts charged. DS challenged the happening of many of those incidents. The trial judge’s findings in relation to incidents 1 to 24 are between J[128] and [404]. His summary of the relevant incidents and his findings as to what they demonstrate concerning the complainant’s relationship with DS and the insights that evidence provides for her conduct in submitting to DS’s punishments and delaying in reporting much of his conduct, are between J[405] and [481].

Events from December 2014

Incident 18 (J[261]-[309]) was found to have occurred in mid-December 2014. By that time, a decision had been made to sell the family home, and DS had raised with the complainant that he proposed “getting a new partner” and that although he and the complainant might divorce “they would be good friends because of the children” (J[263]). The complainant’s evidence as to their relationship at this time was that although she felt “isolated most of the time”, she “loved the accused and wanted to have a family, so she committed and stayed” (J[265]).
At some point before mid-December 2014, the complainant had been introduced to Mr Kelly, who at that time was in a relationship with one of her cousins. Over time, he helped her with odd jobs around the house, and occasionally brought her eggs from his farm. In connection with the sale of the home, the complainant arranged for Mr Kelly to shift dirt from the garage area. At this point, DS had not met Mr Kelly. When DS discovered that the work had been done and at a time when he was not at home, he accused the complainant of having an affair with Mr Kelly.
There followed incident 18, which involved an altercation on the front lawn, and then an incident inside the house. The former involved DS striking the complainant’s face with his fist and trying to kick her as she ran across the front lawn (J[268]). Shortly afterwards and inside the house, DS wrestled with the complainant to obtain her phone, and in the course of doing so, in the words of the complainant, “tried to rip my finger off and as soon as my finger cracked, I let the phone go”. DS then removed the SIM card, kept it and smashed the phone on the floor (J[268]). Hospital records corroborated the fact of the injuries described by the complainant as having occurred on 12 December 2014 (J[271]).
The following day, DS called Mr Kelly and asserted that he knew that he was having an affair with the complainant. Mr Kelly, who was aware of the incident which had occurred on the previous day, reported it to the police. As a result DS was arrested, and on 15 December 2014 he was interviewed in relation to the alleged assault. He did not deny that an incident had occurred involving him grabbing her phone. In that interview, he also accepted that he had accused the complainant of cheating with a “handyman”.
An Interim Apprehended Violence Order was made on 16 December 2014 and listed at Campbelltown Local Court on 13 January 2015. DS was next interviewed by the police on the evening of 31 December 2014 following incident 20 described below. In that interview, DS denied ever having assaulted the complainant.
There is no incident 19. Incident 20 happened in the evening of 31 December 2014. The complainant picked DS up from the train station in their car. On the way home, he taunted her about whether she had been sleeping with Mr Kelly. Her evidence was that he described her as “good for a slave”, as not having a “good mentality” and not being a “good person”, and as being a “prostitute” and “like [her] mother, a bitch”. DS continued to ask her how many times she had slept with Mr Kelly (J[311]).
There was then an altercation in the house. DS “struck the complainant on the head with a closed fist” and “subsequently hit [her] on her shoulder” (J[312], [444], [453]). The two children and the complainant then left the house. There followed interactions with two sets of neighbours, one of whom called the police. The police attended at a time when the complainant and DS were sitting at the front of their home. When asked by the police, the complainant denied that DS had hit her. In her evidence in chief, she accepted that was not true, that she had wanted to “save him” because if he was charged then he would “lose his job” and she would not be able to “put the mortgage for the house, not able to pay bills, I was not working, children, food and pay for the car” (J[317]).
A police statement in evidence confirmed that the police had attended, that the complaint was that the “husband has assaulted wife” and that JS had said her mother “had been pushed violently into the microwave by her father which resulted in an injury to her right elbow”. As a result of this incident, DS was again arrested and taken to Campbelltown Police Station.
By late December 2014, DS had opened his first bank account and was taking driving lessons, each in preparation for ending the relationship. Up to this point, DS’s salary had been paid into the complainant’s bank account. That changed from early 2015 (J[454]). The complainant had also driven the family car, as incident 22 revealed.
It was suggested to the complainant that at this time DS had “moved from upstairs to downstairs in the house” (J[382]). She did not accept that, but did accept that “he was sleeping downstairs” on the lounge. This being the position has some relevance to the likelihood that consensual sexual activity (even involving physical acts of the kind described by the complainant) would have occurred in that state of affairs, as DS contended.
Incident 21 occurred on 13 January 2015 following the further adjournment of the Apprehended Violence Order proceeding to 6 March 2015. It involved abusive language in the vehicle concerning that court attendance (J[454]). There followed incident 22, which occurred shortly after the couple had visited an Indian shop in a fruit market at Minto. While the complainant was driving, DS asked her to pull over. She did so, and he then started peppering her with questions about Mr Kelly. He then struck her before she exited the car and attempted to run away. DS followed and there was a physical altercation on the side of the road. A bystander (Mr Overall, who gave evidence) intervened in the physical altercation between the complainant and DS (see J[365]-[373]).

The imposition of the “punishments”

In mid-January 2015, DS imposed the “18 punishments” on the complainant, explained as being one for each year of their marriage. He did so in response to the complainant’s saying that she had had sex with Mr Kelly, even though she maintained that was not true (as did Mr Kelly). The trial judge summarised her evidence as to her thinking in deciding to do so at J[375]-[378]:

[375] The complainant’s evidence was that from that point forward, when the accused was at work, he would contact her regularly, ten or eleven times, asking her whether she had slept with Mr Kelly. She stated that the accused told her that he was going to take the television to Raymond Reddy, to take the satellite from the television and this would show the complainant and Mr Kelly having sex. She stated that the accused said that “it should be in the TV because these days the TVs are recording everything in the house.” She stated that she was upset as she did not do anything like that and did not have sex with Mr Kelly, but the accused kept saying it and confusing her. She stated that at one point she got “fed up of all the questions all the time, every night and day …” and thought that she would “just say yes [and] I’ll see what he does.”
…

The complainant was asked what she meant by describing DS’s behaviour at this time as “torture”, and she replied (J[377]):

Because he was hitting me all the time. He was verbally abuse. It was just too much for me. I stopped eating, I couldn’t sleep because I was ..(not transcribable).. to look after the children, driving I couldn’t concentrate, everything on me. Finally I thought if I say “Yes” maybe he’ll spare me and we’ll be back together, him forgive me.

She then explained how she thought she might bring the matter to a head:

[377] … She stated that she believed that the accused would “just [have] to come to terms and just say that ‘Okay you have done it. You have told me that you have done it. I forgive you.’ She stated that she thought in her mind that by telling a lie that she had sex with Mr Kelly, the accused would smile and look at her, and thought that he would forgive her, and that they would “move on as a family.”
[378] The complainant stated she lied to the accused, and admitted to having an affair with Mr Kelly. In response, the accused told her that she must have a “punishment” for every year that they had spent together. This was a total of eighteen years. She said that she was “scared” and did not know what was coming. She stated that she “stayed there for [her] children” and because she loved the accused, and she thought that he would understand her. She continued by stating that it was “heartbreaking, it was very upsetting” and that she had “stood beside [the accused] no matter what.” She further stated that she “took everything on [herself] to save him, to be together because [she] loved him” and she was prepared to take the punishments because she loved him. She also stated that another reason why she was prepared to take the punishments was because of her children, and in particular her sick son. She stated that she needed support as she was not working. She stayed with the accused because she had nothing and had nowhere to go. She further stated that people would talk about her, and suggest that she was not a good person, that it was her fault and that she must have done something wrong, and people would try to blame her.

DS denied that the punishments were imposed by him. He submitted that, in circumstances where on his case the sexual conduct did occur, she had made the punishment story up, presumably after the event and in order to have DS dealt with by the police (J[380]).
There followed incidents 23 and 24, on or shortly after 16 January 2015. Incident 23 involved DS demanding that the complainant shave her head before he came home from work and on the same day as the demand was made. She did not do so. After arriving home, she went upstairs. The trial judge recorded the complainant’s evidence as to what happened next at J[394]:

The accused is alleged to have proceeded to pull the complainant down from upstairs by her hair. She stated that she then sat downstairs in the lounge room, next to the accused. The accused then asked her how many times she had slept with Mr Kelly. The accused stated that the complainant had slept with Mr Kelly thirteen times, to which she responded that it was eighteen, as there were eighteen punishments.

The complainant eventually locked herself in the bathroom and cut her hair into a small pony tail (J[395]). In cross-examination it was put to her that she had lied about this incident. She rejected that suggestion (J[397]). In her electronic record of interview given on 29 May 2015, JS gave evidence of being aware that the complainant had been asked to shave her hair off, and stated that her mother “cut a bit of it off” (J[399]).
Incident 24 followed on from incident 23. DS continued to ask questions about Mr Kelly, and in particular about how many times she had slept with him. The complainant’s evidence was that she responded, “maybe… three or four times” because she thought if she said that, DS would forgive her (J[400]). Her evidence was that DS hit the complainant on the head and shoulder “many times” (J[401]). The complainant then went upstairs to calm WS, and on her return DS stated that there was a “punishment” she had to do and that if she continued with the punishment then he would “let her stay with him” (J[403]). The trial judge accepted her account of incident 24 (J[459]).

Counts 1 to 23

There followed count 1 which happened in the morning of 15 or 16 January 2015 before DS left for work. As is already noted, summaries of sexual assault counts 1 to 23 are contained in Schedule 1.

Count 24 and the complainant’s delay

The complainant’s allegations with respect to the charged offences were not reported to the police until late February 2015, which was more than three weeks after the occurrence of the last charged offence (count 24). That offence occurred in the late evening on 31 January 2015, when the complainant jumped from the top of the carport whilst pursued by DS and following the series of sexual assaults (counts 18 to 23) which occurred on that day. DS relies on that delay as confirming that the complainant’s allegations as to the sexual assaults were false. In addition to addressing count 24 at this point, it is convenient also to deal with the sequence of events which led to the alleged offending being communicated to the police.
The trial judge considers count 24 at J[780]-[935]. The Crown case was that the accused’s conduct (described below) caused the complainant to jump off the carport roof. In doing so, the complainant broke her tibia and several bones in her foot.
DS’s case was that there were variations in the complainant’s accounts of what had happened, and that she did not run away. According to his argument (but not evidence), they had finished having sex and talked for a while before the complainant went upstairs (J[850]).
The trial judge accepted the complainant’s account of what occurred, as summarised at J[780]-[781]:

[780] … The complainant stated that she thought she was going to die. The complainant stated that when she ran upstairs, she picked up her mobile phone and called the police. The complainant stated that when she was upstairs she sat beside her children, put on her joggers and looked at them, knowing that this was the end. The complainant then stated that she did not call the police because she did not have time. According to the complainant, she could hear the accused coming up the stairs, and heard him saying: “Finish, finish.” She feared for her life. She stated that he was “just raging” and she was thinking to herself that the accused was coming to get her and if he did, that he would kill her.
[781] The complainant stated that as soon as she heard the accused take one step upstairs, she made her way onto the balcony. The balcony was located in front of the bedroom, and she had gotten there from her bedroom. As soon as she made her way onto the balcony, she was scared because the accused was following her. The complainant felt that if the accused grabbed her from the balcony, he would throw her from it and she would not survive the fall. The complainant quickly went onto the carport, and heard the accused telling her: “Do it or if you don’t do it I’ll do it, just do it.” The complainant asserted that the accused then tried to put his leg from the balcony towards the carport. At that point, she was standing on the edge, in the corner of the carport, facing towards the street. The complainant stated that she was “very scared” and feared that if the accused “did it” that she was not going to survive. She stated that the accused would have “throw[n]” her “hard” or if he grabbed her, he would take her inside or into the backyard to strangle her. She stated that she wanted to live, so she jumped. However, as she jumped, she slipped on the gutter and fell down.

This version of events was consistent with the records produced as a result of her hospital admission and the immediate investigations of the police. Her hospital presenting history includes “states husband was threatening and abusing her, asking her to jump from balcony otherwise will kill her” (J[789]). Sergeant Smith’s statement recorded that the complainant had told her that she had “jumped” in order to get away from her husband who was chasing her. It also recorded that the complainant’s daughter JS had said there were occasions when DS pulled the complainant by her hair and told her he would “cut off her lips and cut off her nose” (J[795], [796]). The complainant was also interviewed by Detective Cole, but did not tell him of any possible sexual offences on the evening of or before 31 January 2015. He had asked her if she had been sexually assaulted. She later said in evidence the trial judge accepted that she was “very ashamed” to tell “a man” about what had happened (J[805], [852]). She did, however, communicate to him that DS demanded that she physically harm herself, that she declined to do so, and that he stated that if she did not do it, he would do it for her (J[804]).
In the period following these events, the complainant saw a social worker, Ms Sheehan, on 2 February and 10 February 2015. Ms Sheehan’s note records that the complainant stated “that she jumped from 2^nd storey to avoid husband throwing her off the balcony” (J[813]). She described the complainant’s demeanour on each of these occasions as “very emotional and upset” and “very distraught and terrified” (J[814], [816]). The complainant disclosed to Ms Sheehan that there had been “various issues in the marriage over many years”, but did not mention any sexual offences (J[817], [818]). She did, however, mention “sexual abuse”, which Ms Sheehan described as the complainant talking at times about how often she “didn’t have a say in their sexual relationships” (J[819]).
The complainant also saw a child protection case worker, Ms Nahas, on 4 February and then at her home on either 24 or 25 February. On the second occasion, the complainant explained that she was “physically, emotionally and sexually abused, and was controlled by the accused” (J[823]).
On 25 February, the complainant met Detective Fiona Duncan at Campbelltown Police Station accompanied by her brother and the two children, who were separately interviewed. Detective Duncan had not met the complainant before. The complainant told her that she was “ready to talk… about everything that had happened”; Detective Duncan’s evidence was that the complainant was “very nervous” and “non-specific” (J[828]).
In cross-examination, the complainant was asked why she did not tell the police about the sexual assaults until the end of February 2015. The trial judge records her answer being that she was “crippled at that time”, could not move and was more concerned about the welfare of her children (J[832]).

The findings as to count 24 and reasons for delay in complaint

The trial judge made the following observations and findings as to count 24 and the reasons for the complainant’s delay in complaint. He accepted the complainant’s evidence as to the reasons for her reluctance to discuss the sexual assaults with Detective Cole (J[852]); accepted Ms Sheehan’s evidence as showing the complainant was reluctant to press charges against DS until convinced by her family that it was “okay” and that she had support (J[853]); accepted that the clinical notes on admission and Sergeant Smith’s note recorded the complainant as having stated that her husband was threatening and abusing her and asking her to jump off the balcony otherwise he would kill her, and that she had jumped in order to get away from him (J[856], [857]); and accepted that on 24 February the complainant told Ms Nahas of her fall from the garage roof that “if she did not jump, [DS] would have pushed her off and so she jumped in order to save herself” (J[859]).

Disposition of application for extension of time

At this point I should set out briefly my reasons for concluding that the extension of time sought by DS should be granted, and the principal ground of appeal (the unreasonable verdict ground) dealt with in accordance with its merits.
In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32], French CJ, Hayne, Bell and Keane JJ said of the provisions of the Criminal Appeal Act 1912 (NSW) conferring a right to appeal against conviction and sentence:

[32] … These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding.

Their Honours went on at [33]: “Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted.”

In certain cases where an extension of time is required and the Court must assess the prospects of success of a proposed appeal, it may not be possible to undertake that assessment without effectively determining the applicant’s ground of appeal on its merits. In Franklin v R [2021] NSWCCA 260, which concerned an appeal against conviction on the ground (among others) of unreasonable verdict which had been brought out of time and required leave, this Court (McCallum JA, Beech-Jones and Hamill JJ) said at [4]-[5]:

[4] The Crown acknowledged that the Court has a wide discretion to extend the period for which a notice of intention to apply for leave to appeal has effect: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [12]-[13]. In particular, the Crown accepted that the determination as to whether it is in the interests of justice to grant the extension sought requires the Court to consider the prospects of success of the appeal. As in many cases, it is not possible to undertake that assessment without in effect conducting the substantive appeal and determining the applicant’s grounds of appeal on their merits.
[5] The applicant, who is legally trained, provided detailed submissions and also sought to rely on fresh evidence in the appeal. In order to determine whether to grant the extension of time sought, it has been necessary for the Court to consider and assess the entirety of that material. Having done so, we have reached the conclusion that the appeal should be dismissed. Having regard to the seriousness of the charges and the detail in which the issues in the appeal have been addressed by both parties, the appropriate course is to grant the extension of time needed to commence the appeal and to deal with each ground on its merits. Our reasons for concluding that the appeal must be dismissed are as follows. [emphasis added]

In Olivieri v R [2016] NSWCCA 169, which involved an appeal from a murder conviction brought out of time and requiring leave, Leeming JA (Johnson and Harrison JJ agreeing) stated at [7]-[8]:

[7] Given the nature of the offence for which Mr Olivieri has been convicted, and the significant sentence that was imposed (the bulk of which is yet to be served, despite the substantial delay in filing a notice of appeal), the comprehensiveness of the submissions exchanged, and the attitude of the Crown, there should be an extension of time.
[8] Most of the matters which Mr Olivieri wishes to raise are not questions of law, and therefore require leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). Once again, there should to the extent necessary be a grant of leave, so that these matters may be addressed on their merits.

In TA v R [2015] NSWCCA 151, where both an extension of time and leave to appeal against conviction were required, Ward JA (Johnson and Garling JJ agreeing) resolved at [5] to “consider the application for leave to appeal and for an extension of time for the filing of the requisite notice after addressing the merits of the appeal”. Having done so and concluded that she would dismiss the appeal in the event that leave were granted, her Honour stated at [42]:

[42] That brings me back to the application for an extension of time for the filing of the notice of application for leave to appeal. There was no satisfactory explanation for the overall delay in commencing the proceedings, although a partial explanation was proffered. An application for such an extension must of course be determined by reference to the interests of justice (O’Grady v R [2014] HCA 38; (2014) 254 CLR 621). In circumstances where the sole ground of appeal now sought to be pressed (if leave to appeal is granted) has been shown to have no merit, refusal of the application for an extension could not be said to occasion any injustice. That said, the merits of the proposed appeal have been argued and considered. I consider the appropriate course is to grant the extension of time for the filing of the application for leave to appeal and to dismiss the application for leave to appeal. [emphasis added]

In order to understand and form a view as to the prospects of success of DS’s appeal, it has been necessary to consider and assess the entirety of the materials which, in the context of a judge-alone trial occupying 26 days and involving a substantial number of charged counts, were voluminous. In doing so I have reached the firm view, for the reasons I give below, that the proposed unreasonable verdict appeal is without merit. Having done so, I consider that the interests of justice, viewed especially from the perspective of the complainant and the community more generally, are served by DS’s appeal on that ground being dealt with and dismissed on its merits.
Accordingly, I regard the appropriate course to be to grant the requisite extension of time.

Disposition of applications for leave and grounds of appeal

It remains to deal with DS’s applications for leave to appeal and any appeal, if leave be granted. It is convenient first to deal with ground 2 and then ground 3, before addressing the unreasonable verdict ground 1.

Disposition of ground 2: misdirection as to what necessary to prove absence of consent

The offence charged by counts 1 to 7 and 9 to 23 was having “sexual intercourse with another person without the consent of the other person” knowing “that the other person does not consent to the sexual intercourse” (Crimes Act, s 61I).
At the time the offences were committed, s 61HA relevantly provided in relation to consent:

61HA Consent in relation to sexual assault offences
…
(2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
…
(4) Negation of consent A person does not consent to sexual intercourse:
…
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or

…
(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:
…
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or

…

DS’s written submissions contend that the trial judge “misdirected himself as to the elements of the offences, namely sexual intercourse without consent”.
In directing himself as to the meaning of consent and what must be proved to negate it, the trial judge observed at J[17]:

The law provides that a person does not consent to sexual intercourse if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person). In considering whether the Crown has proved beyond reasonable doubt that the complainant did not consent regard may be had to whether that the complainant had sexual intercourse because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force. It does not follow simply because I find that fact proved that I should be satisfied beyond reasonable doubt that the complainant did not consent… but it is a relevant fact that you should consider in deciding whether the Crown has proved this element of the offence as it must do so before I can convict the accused. [italicised part emphasised in DS’s written submissions]

A careful reading of J[16] and [17] does not suggest that the trial judge misdirected himself in relation to the element of consent or the discharge of the Crown’s onus of proving beyond reasonable doubt that the complainant did not consent. The relevant parts of J[17] are extracted above.
First, at J[16] his Honour notes that the Crown must positively negate consent by proving that the complainant did not “freely and voluntarily” agree to the sexual intercourse (s 61HA(2)). Secondly, his Honour notes (in the first sentence extracted above) that s 61HA(4)(c) describes circumstances in which a person “does not consent”, namely where the agreement to intercourse is “because of threats of force or terror”. Thirdly, his Honour directs attention to s 61HA(6)(b), which provides that the grounds on which an absence of consent “may be established” include if a person has agreed to sexual intercourse “because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force”. Whether or not such grounds prove the absence of consent, there being no “threats of force or terror”, depends on whether the evidence justified a conclusion beyond reasonable doubt that any agreement of the complainant was not “freely and voluntarily” given.
Addressing count 1, the trial judge’s findings were in accordance with the directions recorded at J[17]. The complainant’s agreement to sexual intercourse was not freely and voluntarily given in circumstances where she was “subjecting herself to the punishment he had imposed” (J[494]). The trial judge also found that consent was negated under s 61HA(4)(c) where the complainant had been “assaulted multiple times and was scared that this would occur again” (J[494]). With respect to each of the other counts of sexual intercourse without consent, his Honour made similar findings beyond reasonable doubt as to an absence of free and voluntary agreement (s 61HA(2)) and as to the satisfaction of the circumstances in s 61HA(4)(c).

In oral argument, when it was pointed out to DS that in relation to each of the counts the trial judge had made findings as to an absence of consent on each of these bases, DS said as to the findings that the complainant was not freely and voluntarily consenting “but rather submitting to a punishment” (see e.g. J[512] in relation to count 2) that his challenge was to the factual finding underlying that holding, namely that the punishment was imposed by him rather than freely undertaken by her.
Such a factual challenge is not raised by ground 2 and accordingly does not arise for consideration in relation to it. However, in his oral argument in support of ground 1, DS contended that the complainant agreed to participate in the various sexual acts to “manipulate” him so that he would stay in the relationship against his wishes. Putting it slightly differently, he also suggested that she participated because she was prepared to do whatever was necessary to remain in the relationship with him. This argument is dealt with below in relation to ground 1.
As there is no substance to the argument made in support of ground 2, leave to appeal on that ground should be refused.

Disposition of ground 3: probative value of relationship evidence to issue of consent

DS makes two submissions in support of this ground. First it is said that the “relationship and context evidence did not have any probative force to the issue of consent”. Secondly, it is contended that the trial judge erred in admitting this evidence “to find the applicant guilty on all charges on the indictment” because it was used to support tendency reasoning.
In response, the Crown submits that the evidence with respect to the more than 40 incidents identified by the trial judge was relevant as explaining the relationship between the complainant and DS as it had been over time, so as to place in context the issues raised with respect to the 24 charged offences. As is already noted, the trial judge’s summaries of the evidence with respect to those incidents and his relevant findings are set out at J[405]-[481].
In ruling on the admission of that evidence, before the commencement of the trial, the trial judge considered it likely to be relevant in permitting the jury (at a time when it was believed there would be a jury trial) to understand the following matters:

… (a) the Complainant remained with the Accused, notwithstanding various acts of physical and other violence during the period of the relationship, (b) concern about the Accused’s temper and her submission to his demands to avoid that escalating, (c) the Complainant’s vulnerability to, in particular, in terms of her financial dependence on the Accused and concern for her and her children’s welfare, (d) her reluctance to engage with police or authorities for fear of the Accused losing his job and the associated impact upon her and her children.

The authorities supporting the admission of such evidence for that purpose include Wilson v The Queen (1970) 123 CLR 334 at 337, 344; [1970] HCA 17; and Roach v The Queen (2011) 242 CLR 610 at 624; [2011] HCA 12 at [42], [44].
Having admitted the evidence, the trial judge gave himself a very clear direction that it could not be used: first, to establish a tendency on the part of DS to commit offences of the type charged; secondly, as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt; and thirdly, as evidence from which it could be inferred that as DS may have done something wrong on one occasion, he must have or was more likely to have done so on the other similar occasions alleged in the indictment (J[118]-[120]).
The trial judge’s critical findings as to the relationship evidence are at J[479]-[481]. Those findings demonstrate the probative value of the evidence in relation to the issues of consent and delay in making any complaint. At the same time they do not involve or include any tendency reasoning:

[479] The incidents overall demonstrate that the complainant had reason to fear violence from the accused when she did not accede to his wishes. This included: demands for money, demands to accompany him to various locations, speaking out or doing other things against his wishes, and conceding to an affair with Mr Kelly notwithstanding that she denied that it had occurred...
[480] On the evidence I am satisfied beyond reasonable doubt that:
(1) the circumstances in which the charged acts are alleged were not isolated and follow what involved a history of other acts of domestic violence during the course of the marriage;
(2) the acts involved demonstrate an escalation of violence and an elevated fear by the complainant towards the accused;
(3) the complainant was dependent and saw herself as vulnerable within the relationship resulting in her being submissive and acquiescing to the accused’s wishes. Accordingly I bear this in mind in accounting for her actions and reactions; and
(4) the complainant was reluctant to report and cooperate with law enforcement processes because of concerns that included of the potential consequences for her and her family in light of the economic dependence on the accused and limited other support.

[481] The evidence further satisfies me that the complainant was submissive to the accused’s demands due to a fear that in not doing so would result in violence towards her. That evidence included apologising for things for which she was not responsible, telling others not to report the accused to the police, agreeing to the accused’s proposal for the sale of property and signing of relevant paper work, giving him money when he asked for it, conceding to an affair with Mr Kelly that she did not have, not answering him back and otherwise agreeing to the punishments and submitting to his wishes. I am satisfied that the evidence relevantly assists:
(1) To demonstrate on the part of the accused, his knowledge that the complainant was not consenting, or was reckless as to that consent, or had no reasonable belief in that regard, because he knew the complainant was vulnerable and was in fear of him; and
(2) That the complainant did not consent to the sexual acts due to her being in fear and forming a belief that further violence would be inflicted upon her.

In support of this ground, DS also argues that the trial judge erred in the approach he took to the issue of delay in complaint, and the relevance of the context and relationship evidence to that issue.
The trial judge introduced this subject at J[100]-[102] in the context of considering the complainant’s credit, noting that in response to DS’s argument that her delay raised questions about her credibility, the Crown relied on the relationship evidence.
At J[102] his Honour then directed himself in accordance with Criminal Procedure Act 1986 (NSW), s 294, recording:

…. absence or delay in complaining does not necessarily indicate that that the allegation that the offence was committed is false. There may be good reasons why a victim of a sexual assault may hesitate or refrain from making a complaint about the assault.

The trial judge’s particular findings as to why, in the light of the relationship evidence, the complainant delayed in reporting the sexual assaults to law enforcement are made at J[480(3)-(4)] and [481], which are extracted above. Those findings were open on the evidence and provide ample reasons why, from the complainant’s perspective and in her state of mind, she did not on 1 February 2015 or before report the assaults to the police.
Finally, DS submits that the complainant did not give evidence of specific conduct on his part which “influenced her in any way not to make a contemporaneous complaint”. That is not correct, and in any event it was not necessary that she point to or attribute any particular conduct as having that consequence. The Crown was entitled to rely on inferences drawn from the nature of the relationship.
In responding in cross-examination to the observation that after count 1 had occurred she did not go to or report the matter to the police, the complainant responded that she complained when “the time was right”. In response to the further question that she had not complained after that “first punishment”, the complainant said: “I was scared. I didn’t want to live without a nose and mouth. No one wants to live without a nose and mouth”.
This reference to cutting off her “nose, mouth and vagina” was, at least in part, to a tradition of female circumcision. In her evidence in chief, the complainant first recalled that tradition having been mentioned by DS in December 2014. Her evidence was that DS said that “in his past and in his family that if woman has an affair with a man their rules is to chop off her nose and her mouth and destroy her so she can’t have another man”.
In the course of the commission of each of the offences after count 1, the complainant’s evidence is that DS told her that if she did not submit to the punishment he required, she would receive another punishment or “lose her nose, mouth and her vagina”. There was express or implicit reference to that threat in the context of (at least) counts 2, 3, 4, 9, 13, 14, 16, 17 and 18 (as appears in Schedule 1).
In relation to count 1, the complainant’s evidence was:

Q. I just want to take you a bit back, when you were travelling with him in the car initially going to the station and then to the tennis club, as you described, are you able to tell me or do you remember the extent of the discussion you had with him? Like what he said and what you said in the car?
A. WITNESS: If I remember that he said that new punishment is coming and I ask him what punishment is that and he told me that I had to circumcise and I didn’t know what was that, I know only men circumcise, but women I didn’t know and I ask him, “What is that? What do you mean by that I have to go into a surgery”, and then he told me that I have to go in and cut off my [clit] that all the Muslim girls, mostly men do to their daughters, because if they do it, then they never get any feelings towards any men, so if I do that then I’m not going to have any feelings, so I’m not going to have any men in my life.
Q. When he told you to cut off the, he said for you to cut off your, what did he say, your?
A. WITNESS: [Clit], its--
Q. What did you understand that to be?
A. WITNESS: I understand it’s, I have to cut something close to my vagina that where women get feeling towards men, so he wasn’t me to do that, if I do it it’s going to be okay for him. If I don’t do it then another harsh punishment is when I come or I have to lose my nose, my mouth and my vagina.

The evidence and findings explaining the complainant’s delay in disclosing all of the sexual misconduct to the police and others are summarised above, and earlier in the context of dealing with count 24 and delay.
Leave to appeal on ground 3 should be allowed and that appeal dismissed. There was no error in the admission or use of the relationship evidence, including when resolving the issue of consent; or in providing reasons why the complainant delayed after count 1 and after 1 February 2015, before telling the police about the conduct subsequently charged.

Disposition of ground 1: unreasonable verdict

The question for this Court in considering an unreasonable verdict appeal in a judge-alone trial is whether (Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9]):

…upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge’s finding of guilt is “unreasonable” or “cannot be supported”.

In determining an unreasonable verdict appeal from a jury verdict, the ultimate question for the appellate court is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt. That approach requires the court to undertake two steps. First, to make an independent assessment of the whole of the evidence to determine whether the court itself has a reasonable doubt about the guilt of the accused. Secondly, if the court does have a reasonable doubt, to then consider whether the jury had an advantage capable of resolving the doubt experienced by the court: M v The Queen (1994) 181 CLR 487 at 493-495; [1994] HCA 63.
Returning to Filippou, the majority continued at [11]-[12]:

[11] … for the purposes of an appeal against conviction under s 5 of the Criminal Appeal Act, a judge's finding of guilt is to be treated as if it were the same as a jury's finding of guilt.
[12] … It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced.

Where, as in this case, the evidence of the complainant has been assessed by the judge (or is to be taken as having been assessed by the jury) to be credible and reliable, the approach of the appellate court is to examine the record to see whether, notwithstanding that assessment – “by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the Court is satisfied that [the judge or jury], acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (see Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]). In undertaking this exercise, there is no requirement that a complainant’s evidence be corroborated before the jury, or the judge in a judge-alone trial, may return a verdict of guilty (see Pell at [53]).
The trial judge has made detailed findings in relation to each of the counts. The complainant’s evidence supports and justifies those findings. DS’s argument in relation to this ground focussed on two matters, the question of consent and the fact of delay in the making of any complaint. He did not contest the happening of the physical acts which constituted the sexual conduct charged by counts 7 to 23 (J[15]). In relation to the conduct which was the subject of counts 4 and 6, he only contested the finding that each involved urination. He maintained that counts 1 to 3 did not occur.
The trial judge considered the question of the complainant’s credibility and reliability in light of the relationship evidence given by the complainant. Much of that evidence is corroborated by contemporaneous material, and the evidence of others, including the complainant’s neighbours and, in one respect, her daughter JS. Relevantly, there is such material in relation to incidents 2 (dealt with at [3] above), 8, 9, 10, 12, 18 (dealt with at [17] above), 20 (dealt with at [20]-[22] above), 22 (dealt with at [25] above), 23 (dealt with at [30]-[31] above) and 24 (at [32] above).
That body of evidence justifies the trial judge’s conclusions at J[479]-[481], which in turn explain and support his acceptance of the complainant’s evidence with respect to each of the counts.
DS’s argument that the complainant consented to the charged sexual conduct does not identify any inconsistency, discrepancy or other inadequacy in her evidence. On the contrary, the evidence of the complainant which DS submits raises a reasonable doubt as to whether she was consenting confirms the correctness of the trial judge’s conclusions as to the absence of consent. This is sufficiently shown by taking DS’s argument in relation to consent and count 1.
The evidence of the complainant which DS submits shows that she was consenting includes the following extract directed to why she agreed to participate in the sexual activity:

Q. How did you feel about his suggestion of you being punished for every year that you were in a relationship with DS?
A. WITNESS: It was heartbreaking, it was very upsetting and I was just – at times I was just thinking what I have done for 18 years, 18 years punishment but I always saved him, I stood beside him no matter what, I took everything on me to save him, to be together because I loved him and that 18 years punishment I was ready to take because I loved him.
Q. Was there any other reasons why you were ready to take the punishment that he suggested?
A. WITNESS: My children, I’ve got a sick son, I need support, I was not working. I thought of staying with him because I have nothing and I had nowhere to go and people then talk about maybe I’m not good, I’m not a good person because it’s my fault I have done something wrong, people have been pointing finger on me, I was very scared, tried to blame for me.
Q. So when he first raised it with you, this punishment that would happen to you, did you agree to it or disagree?
A. WITNESS: I agreed.
Q. Why did you agree?
A. WITNESS: Because I wanted to keep my family together and I loved him. Because I have not done anything wrong.
Q. At that point in time did you have any concerns about yourself?
A. WITNESS: I thought that I am strong, have everything for my children and myself and for family. Inside me I wanted to be strong and I was staying strong to just put things together. He was having a good job so he’s going to have a good job and then a time will come when we all forget everything and we move on so I just was holding everything tight for family.
Q. In your mind did you have any view or feeling about whether you had a choice of agreeing or disagreeing with the punishment?
A. WITNESS: At that time I didn’t have a choice. Inside me I thought there is no choice, just not to stay, he will come to terms and he will realise that my wife didn’t do anything wrong. I was waiting for him to realise that I have not done anything wrong.

DS submitted that the complainant was being truthful in answering these questions, and that the effect of her answers was that she wanted to stay in the marriage, in her words to “hold on to” it, and was prepared to participate in “consensual” activity to achieve that outcome. The fundamental difficulty for this argument is that on its face, the evidence shows that in response to DS’s proposal of sexual activity which was described as “punishment”, the complainant did not regard herself as having any choice, because of her situation and her need to protect her children, but to accept and “agree” to it. That being the position is revealed by her answer, “I thought there is no choice, just not to stay”. For her, leaving was not an option. However, it did not follow that she thereby gave free and voluntary consent, and the trial judge was correct to so conclude.
Furthermore, in relation to counts 7 to 23, the complainant’s evidence as extracted in Schedule 1 describes her as being “scared” and the sexual activity variously as “dangerous”, “aggressive”, “unbearable”, “brutal”, “painful”, “rough”, “hurting” and “bruising”. The evidence suggests no sensible explanation for why the complainant would have freely and voluntarily subjected herself to that conduct. Finally, the sequence of events leading to the complainant jumping off the carport roof (see [37] above) is consistent with the sexual activity which preceded it not being consensual.
Turning then to the question of delay, the complainant’s evidence, as extracted in Schedule 1, identifies some of the threats to which she was subjected and the fears she had at the time the charged sexual assaults occurred. That evidence provides a reasonable justification for her not making any complaint following the first of the counts. Her agreeing to the punishments necessarily involved her submitting to each of them, which is what she did. The evidence summarised at [38]-[42] above describes the circumstances following count 24 which led to the complainant being prepared and able to talk openly with the police about the earlier sexual abuse to which she had been subjected. Any delay in her doing so did not throw doubt upon the veracity of her complaints when revealed, especially in the circumstances of count 24.

I have read the whole of the evidence and considered the arguments made by DS. Having done so, I am satisfied that this is not a case where there was no or insufficient evidence to support the trial judge’s findings that each of the relevant offences was proved beyond reasonable doubt, or that any of those conclusions is otherwise unreasonable. In relation to each of the counts on which DS was convicted, it was well-open to the trial judge to be satisfied beyond reasonable doubt as to his guilt.
Ground 1 is not made out.

Conclusion

For these reasons, I would make the following orders:

Extend the time for filing the notice of appeal and application for leave to appeal to 3 March 2021.

Refuse leave to appeal on ground 2.

Grant leave to appeal on grounds 1 and 3 and dismiss the appeal on each of those grounds.

FULLERTON J: I have read the draft judgment of Meagher JA and the orders his Honour proposes for the disposition of the appeal.
I have, however, reached a different view on the preliminary question as to whether the applicant should be granted leave pursuant to s 10 of the Criminal Appeal Act to extend the time to appeal his conviction on multiple counts of sexual assault contrary to s 61I of the Crimes Act; one count of attempting to commit that offence and one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act.
The applicant’s trial commenced on 20 March 2017 before Hatzistergos DCJ sitting without a jury.
On 4 August 2017, his Honour convicted the applicant of 23 of the 24 counts upon which he had been arraigned.
On 19 December 2017, the applicant filed a notice of intention to appeal his conviction.
On 24 July 2020, the applicant was sentenced to an aggregate term of 22 years’ imprisonment with a non-parole period of 15 years and 4 months to commence on 19 February 2015.
The applicant was self-represented both at trial and on the appeal.
On 28 February 2021, the applicant filed a notice of appeal against conviction on each of the 23 counts that attracted guilty verdicts upon the following grounds:

1. Unreasonable or cannot be supported by the evidence.
2. His Honour misdirected himself on the elements of the offences. (Negation of Consent)
3. Relationship Evidence had no probative force on the question of consent.

On the same date the applicant filed an application to extend time for filing the notice of appeal.
In accordance with r 3.1(3) of the Criminal Appeal Rules (NSW), the notice of intention to appeal had effect for a period of 12 months from 19 December 2019, the date of its filing.
The applicant’s notice of appeal was, according to the Rules, [1] to be filed within the period during which the notice of intention to appeal had effect, that is, the notice of appeal was to be filed according to the rules no later than 20 December 2021.
1. Rules 3.5(1) and (2).
The Court may extend the period before or after the expiry of that period with leave.
The following were cited as the reasons for an extension of time:

- No recorded merit assessment till 28/7/20.
- Applicant waited for 2½ years to appeal.
- Applicant decided to represent himself.
- NIA was lodged in Dec of 2017.

Implicit in the applicant’s reasons for seeking an extension of time is his complaint that Legal Aid NSW or, more precisely, lawyers in their employ, delayed providing him with a “recorded merit assessment” (an assessment which it appears he received in August 2020 and in which, it is safe to assume, the applicant was advised that there was no merit in challenging any of the 23 convictions entered by the trial judge). It is also implicit in his stated reasons for seeking an extension of time that once in receipt of that advice, he resolved to represent himself on the appeal.
He filed no evidence as to his dealings with Legal Aid NSW to substantiate his complaint that they delayed formally advising him of their assessment that an appeal against conviction on any of the 23 counts was without merit. He filed no evidence concerning the course of his dealings with the Court after that date.
The applicant is not to be criticised for electing to represent himself on the appeal following his receipt of that formal advice. However, the assessment of the prospects of the success of his appeal, which inform the question whether leave should be granted to extend the time for filing the notice of appeal does not fall to be determined on any different basis because he has chosen to do so. The question whether this Court should grant an extension of time falls to be determined principally by the prospect of one or more of the grounds of appeal being successful. [2]
2. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
In its written submissions, the Crown took the position that if this Court takes the view that there is merit in one or more of the grounds of appeal, then it would not oppose leave being granted to extend time for the filing of the notice of appeal.
Having considered the arguments advanced by the applicant in writing in support of each of his three grounds of appeal, and after considering the oral arguments he advanced, at length, on the hearing of the appeal, I have concluded that there is no merit in any of the grounds of appeal upon which he relied.
Accordingly, I would refuse leave to extend time for the filing of the notice of appeal.
I have reasoned to that conclusion on the following basis.
I have read the trial judge’s verdict judgment. In my view, the judgment was both comprehensive and cohesive. It was structured to ensure his Honour’s reasoning to verdicts of guilty on each of 23 of the 24 counts upon which the applicant was arraigned was transparent, and to ensure that the directions of law by which he was bound in finding the constituent elements of each of those offences proved beyond reasonable doubt were carefully articulated and specific to the matters of fact and law in issue in the trial.
Specifically, the trial judge’s directions as to the elements of the offence constituted by s 61I of the Crimes Act, and in particular the operation of s 61HA(4)(c) in the context of the facts at issue in the trial, were in my view devoid of error (ground 2). The applicant has advanced nothing in his oral or written submissions capable of demonstrating the misdirection of law he contended for. His submissions display a patent misunderstanding of the law as it relates to the issue of consent as an element of the offence charged under s 61I of the Crimes Act, which the Crown was obliged to negative.
The applicant’s contention that each of the verdicts was unreasonable (the first ground of appeal) is also devoid of merit as are the arguments advanced in support of the third ground of appeal.
The applicant advanced nothing either in his oral or written submissions to support this Court finding that that the evidence upon which the trial judge acted (or upon which it was open to him to act) in finding guilt proved beyond reasonable doubt was deficient or tainted; that it revealed discrepancies or inadequacies or was otherwise lacking in probative force or that the judge misdirected himself on a matter of law resulting in a miscarriage of justice. [3]
3. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29.
To the contrary. His Honour’s assessment of the full complement of the evidence adduced by the Crown in proof of the each of the constituent elements of each of the 21 counts of sexual assault without consent (counts 1-7 and 9-23), the single count of attempting to commit that offence (count 8) and the single count of recklessly inflicting grievous bodily harm (count 24) was detailed, balanced and comprehensive. It included his Honour’s assessment of the complainant’s evidence as truthful and reliable.
In finding guilt proved beyond reasonable doubt, his Honour also took into account a body of evidence admitted as context and relationship evidence. That evidence established that during the applicant’s 17-year marriage to the complainant preceding the offences the subject of all counts on the indictment (all of which were alleged to have been committed over a very confined period of weeks in January 2015) the applicant had been repeatedly violent towards her in a domestic context. The police were involved in some incidents. Others were witnessed by third parties.
The trial judge was satisfied that body of evidence, which I am satisfied was unquestionably properly admitted as context and relationship evidence and available to be used by the trial judge in reasoning to guilt (subject to the limitation that it could not be used for a tendency purpose), was relevant to proof of the absence of consent. The complainant gave compelling evidence that she was in fear of the applicant inflicting further violence upon her as he had done in the past if she did not submit to sexual intercourse by a variety of means and mechanisms. The same body of evidence was also available as informing the applicant’s knowledge that, at the time of having sexual intercourse with the complainant on the occasions charged as separate offences on the indictment, he knew she was not consenting.
There was no error in his Honour taking that approach as a matter of law. There was no error in the way in which he utilised that evidence in finding the guilt of the applicant proved beyond reasonable doubt on the 21 counts of sexual intercourse without consent, the single count of attempting to commit that offence, and the count of recklessly causing grievous bodily harm.
I would propose the following order:

Application to extend time to appeal refused.

ADAMSON J: I have had the benefit of reading the respective reasons of Meagher JA and Fullerton J in draft. I agree with the order Fullerton J proposes, her Honour’s conclusion that none of the grounds of appeal has any merit and her Honour’s reasons for reaching the conclusion that an extension of time to appeal ought be refused on that basis. I wish to add the following brief observations.
It was apparent from the applicant’s oral and written submissions in this Court, as well as from his cross-examination of the complainant at trial, that he believed, wrongly, that he had a right to have sexual intercourse with his wife because she was his wife, irrespective of whether she consented to it on the particular occasion. Further, the applicant also appeared to believe that he was entitled to punish his wife for imagined infidelity by committing sexual assaults against her. His views are inconsistent with s 61KA of the Crimes Act 1900 (NSW) which provides that the fact that a person is married to a person upon whom an offence under ss 61I, 61J, 61JA or 61K is alleged to have been committed is no bar to the first-mentioned person being convicted of the offence. This provision, formerly s 61A(4), was inserted into the Crimes Act by the Crimes (Sexual Assault) Amendment Act 1981 (NSW): see the discussion in PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21 at [171]-[244] (Bell J).
As to ground 1, I confirm that I have considered the transcript of the evidence and the exhibits, together with the reasons of the trial judge. I am satisfied that it was amply open to the trial judge, applying the criminal standard of proof, to be satisfied that the complainant had not consented to sexual intercourse and that the applicant knew that to be the case. None of the trial judge’s findings of guilt was unreasonable.

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SCHEDULE 1

Without limiting matters relevant to the issue of consent that were specific to each count, such matters included the following:

Count 1 was an allegation of fellatio that occurred around 16 January 2015. Immediately prior to the incident the applicant hit the complainant in the face and “told me that I am a very good person to suck him and because he thinks that I have sucked Glenn’s dick and then I will do it to him” (T172). The complainant also said that “(h)e wanted me to suck him and I did and he told me that if I don’t then it’s no good for me and I have to do as I have done to Glen ... " (T177). She said, "I thought if I don't do it he will hit me again" (T172). She said it would be "worse for me" if she didn't do it, meaning that if she didn't do it "he will hit me because he thinks that I have done to Glen so I have to do it to him too" (T178).
Count 2, a further allegation of fellatio, occurred immediately after count 1, after the complainant had driven the applicant to Leumeah station (so that he could go to work). She was told to drive to the tennis club and that "new punishment is coming and I ask him what punishment is that and he told me that I had to circumcise ... " (T180). She was told that if she did not do it then another harsh punishment is to come or she had to lose her nose, mouth and her vagina (T180). The applicant said: "I want to piss in your mouth". She was told she only had ''five minutes to do it" and that it was "part of a punishment" (T178). The complainant said, "he took his penis out and he put it in my mouth and the piss didn't come in I tried to bite because I didn't want him to do that to me" (T179). The victim stated that the offender's penis was in her mouth for "five seconds." She was then verbally abused and told her that this was "part of a punishment" and that "new punishments will be coming" (T179).
Count 3, a further allegation of fellatio, occurred on the same day. The complainant later picked the applicant up from station and they stopped at Minto Mall on the way home. The complainant was assaulted in the car (punched on the head, face, breast and shoulder) and told that "if you get out and you run I'll chase you and kill you" (T182). The incident itself occurred after they arrived home, in the upstairs toilet. The complainant was told, "it's time for your punishment" and that "punishment is that I'm going to piss in your mouth" (T184). She said, "he told me to sit on the pan and I sat on the toiletpan and he wanted to piss in my mouth and I didn't want to open my mouth. And he told me he will take off your nose and your mouth and your vagina, what is best. I thought that at least he pisses in my mouth I would keep my nose, my mouth and my vagina. I had to live for my children. I made a decision to open my mouth and let him piss in my mouth. If he does that then at least I have my nose and my mouth so can I have to live for my children" (T184). When he urinated in her mouth the urine was mixed with blood (T185-6).
Count 7, involving vaginal penetration with the sex toy, occurred next in time (before count 4). The applicant produced a sex toy which the complainant described in detail (T202-3). She said "(i)t was so big. I was very, very scared and I was terrified' (T203). She said, "I begged him, please do not use the toy". She said she was "scared to death", shaking and numb. She said to him, "I love you to death, don't do this to me, whatever you have", but he said, "it's part of your punishment you have to get used to it" (T203). The complainant thought that if she denied the offender this punishment, "other punishments might come" which might be "worse than this toy" (T206). She said that if she denied him the punishment "he will hit me" (T207). He also said, "he wants me to do what he tells me otherwise the punishments is going to get worse" (T218).
Count 8, involving attempted anal penetration with the sex toy, occurred after count 7 (the complainant could not remember if it was the same day - T218). When the applicant tried to push the toy into her bottom she said, "I got up and I pushed him away and I told him this is not - not the place to have sex and this is the - God has made that for us to poo, not to have sex. And he – he just didn't care. He said that, "Other women do it, why can't you?" (T218). She said, "I was thinking that if I don't do what he tells me then maybe a harsher punishment comes I won't be able to survive" (T219).
Count 4, involving urination in mouth/fellatio, occurred after the complainant was called into the bathroom and told "the punishment is ready" (T197). She said, "So I have to go and sit on the toilet pan and wait for him to piss in my mouth". She was "crying, worried, with none-half malnourish [sic]" and thought that she had to go through the punishment because she had previously done it, that the offender would "spare" her "just for mercy" (T207). During the incident she was visualising how she would look without a nose and a mouth (T199). She believed that he would "chop" off her nose and mouth and said, "he doesn't have remorse ... no sympathy towards his wife, the mother of his children, who serve him day and night ... and that he was "if he can piss in her mouth with blood in it and tell her to swallow he's capable of doing anything" (T199).
Count 6, involving urination in mouth/fellatio, occurred on the same afternoon or night as Count 4 or the next afternoon. The complainant said that she was called down by the applicant who told her that the punishment was ready (T202). He said, "You open your mouth" and after she opened "a bit" he said, "You'd better open your mouth big" (T202). After he had put his penis in her mouth and urinated the applicant said, "You are a bitch, you are good for nothing and your punishment is coming. You have to be ready for the punishment" (T203).
Count 9, involving vaginal penetration with the sex toy (with rubber bands put on it) occurred after counts 7 and 8. The complainant was crying and pushing the applicant away and he said, "You think about your nose and your mouth" (T226). She said, "I was very scared that, just do whatever he wants me to do, and it's better to have this toy and that pain and not lose my nose and my mouth" (T226). The victim believed the threat because she said that if the applicant "can abuse me every way he could, he didn't have any mercy when I asked for, so he will do it" (T226). The complainant described the motion of the applicant as giving her "so much the pain, sharp pain" (T226).
Count 10, another allegation of vaginal penetration with the sex toy, occurred after the applicant asked the complainant to have sex. At first, she told him that she can't, she was very tired (T229). He responded, "You can - if Glen was here you wouldn't have hesitated, you would have done it", and she said, "Okay, if it's only you I will do it, if it's the toy I can't". He then told her to get undressed and "get ready for my punishment" (T229). She described the use of the toy (without any gel) as "very, very, very painful, it was unbearable" (T230). She said, "If I yell and scream my children will know and I don't want my children to know that what I'm going through. And at times I am quiet; I am numb" (T230). She asked him "how he feels" and "he says that he feels better by punishing me, and then he keeps going. And it's hurting me, I'm crying in fear and in pain, pushing him away. He comes back and he does it again" (T230). The applicant said, "when I punish you I feel pleasure, and if I destroy you won't be able to have another man in [your] life" (T231).
Count 11, involving vaginal penetration with both the sex toy and the applicant's fingers, occurred minutes after Count 10, when the applicant told the complainant to turn around to allow him to have sex with the toy from behind (T233; 235). She said "I pled him to do it slowly" but he was very rough (T233). He said, "You have to take it because it's your punishment" (T233).
Count 12, again involving vaginal penetration with the sex toy, was described by the complainant as the ''fourth" incident involving the toy (T239). The complainant said, "I don't want to, it hurts me too much" and the applicant said, "You must; it is your punishment" (T239). The complainant then "let [him] do it to me", saying "there is no point in triggering him or he will hit me" (T239). When he pushed it in "it hurt like a sharp pain. I screamed out in pain", and their children came running down because they must have heard her scream (T240).

Count 13, again involving vaginal penetration with the sex toy, occurred after count 12, on the same night. After she went upstairs to go to bed, the complainant was called back down and when she refused, the applicant said, "Bitch you come. If you don't come you are finished'', which she took to be a death threat (T242). She went downstairs and was questioned "more and more" about having sex with Glen Kelly and she said she did not have sex with him (T242). The applicant held his fist and came close to her face, but did not hit her, then saying that if she admitted to having sex with Glen then he would "spare" her (which she took to mean "spare me not chopping my nose and my mouth, to let me go" (T242). He was "very angry, aggressive and very agitated'' (T243). She said that the applicant holding his fist and coming close to her face was something she had seen before, and it was something that he would do whenever he wanted to scare her and to "make me admit what I have not done" (T243). When she was scared, "I quickly admit so he doesn't hit me" (T243). The complainant said, "I don't want to use the toy because it hurts me" (T245). After initially agreeing not to use the toy and to have "normal sex", the applicant ultimately used the toy (T245-6). She was "quiet" and "didn't cry", he was pushing with the toy "hard'', she felt a "very very sharp pain" and then she cried (T246-7). She was "just scared and vulnerable at that time" (T250). The applicant was enjoying it because he was punishing her and he was very aggressive (T250). She said, "He just want to punish me and making me realise or come to terms that there’s forgiveness or he's going to spare me and ... " (T250).
Count 14 involved digital penetration with multiple fingers. After count 13, the applicant told the complainant, very aggressively, that "a new punishment has come" that he described as "honky sex" (T246, 252). He described this as ''play with your hand or fingers" (T252). The complainant said "No, no, I’m very scared. I don't know how it's going to go and I don't want to do it" (T252). She also said, "I didn't know how it's going to be and I was very scared that if I don't do it what's going to happen next, and I was confused and terrified' (T252). She also said, "I mean that if I don't do that punishment then I have to lose my nose, my mouth and my vagina. I was, I was very, very scared. So whatever is told I have to do it, if I don't do it there's something big coming towards me, something dangerous coming towards me" (T253). When, on 27 January 2015, the applicant engaged in "honky sex" the complainant said she was "very, very scared' (T253). She was shaking and the applicant put two fingers, then three fingers and finally four fingers inside her vagina (T253). It was hurting her and it was "very, very painful" because he had "long fingers and fingernails" (T253). She thought “if I don't do it he's going to cut my nose, my mouth and he's going to destroy me so that no man can have me". She took the reference to being "destroyed" as a reference to her vagina (T254; 255). She was shaking, "sort of numb" and was crying because it was "very, very painful". She told him, to stop, but instead he "came back again". She tried to push him but he "came back again and did the same thing again" (T254). He said, "that it's a punishment you have to do it" (T254). The complainant said that during the incident she told him it was "very dangerous to do those things, it's a sin" and he said that she had "committed adultery" and "other women can take it, why can't you?" (T256). He called her a bitch and said that if she would not "do it" then she was to kill herself (T257). During the incident he was very aggressive (T256). She said that if she said, "Stop it" or "I don't like it" he would say "don't trigger me" (T256). He would look as though he was going to kill her and came close to her with his eyes to suggest, "you have to do this, you have to do it, it's your punishment and get on with it" (T256).
Count 15, again involving digital pentation with multiple fingers, occurred on 29 January 2015 (T259). The applicant told the complainant that punishment would "keep going" and it was "honky sex again" She told him that she could not do it because it was dangerous and she was scared and he said "it’s punishment that's what it is and you have to do it" (T258). She said it was "so painful like something has cut me inside. I was not sure in that pain that if I have bled inside, terrifying, trying to hang on there so that another punishment doesn't come. I ask him how he feels, he said that he feels a big relief' (T258). She described the applicant using one, then two, then three, then four fingers and pushing them further into her vagina which was "very, very painful ... like sharp knife tearing through" and she could feel "heat" (T260). She did not know whether she bled but it was "very, very painful" and she was in agony and "very, very sore". She felt like he would "just rip everything apart" so she tried to push the offender away with her feet and leg (T260). However, he was "aggressive" and he came and did it again. She did not have much "power" and was ''just hanging on, may I find mercy for my children, that's all" (T260). She described her condition as half worn, malnourished with numb eyes without being able to breath properly, eat or sleep. She said that she was confused and hoping that by undergoing the punishments the applicant would spare her and tell her to stay.
Count 16, involving fellatio, occurred after (but on the same day as) count 15. The applicant told her to "suck him" and she said "No, I can't, I am ve1y tired, I need to sleep" (T263). She said "(w)hatever I am told I have to do it so that I can be there survive or I can stay" (T262). As she sucked the applicant's penis he told her to "do as you do to Glen" (T264). She said that ''just before" she was sucking the offender's penis, she was feeling "very sick ... not feeling well" and "scared'' because she did not want to do it (T264). The complainant said that she was scared for her health and was concerned that if she did not do what he told her to he was going to hit her or chop her nose, mouth and "destroy" her (T265).
Count 17, again involving vaginal penetration with the sex toy, occurred after count 16. The complainant went back upstairs but was later called back down, the applicant then grabbing her by the hand, and taking her downstairs (T267). He told her "(t)here’s more punishment coming" and that he wanted to use the toy (T267). The complainant was told to undress. The applicant used the toy on her and she felt a sharp "knife" pain because she was "already bruised' (T268). The complainant said that she did not want the toy to be inserted into her vagina, because it was "very hurtful" and she was "feeling sick" (T268). She could "hardly describe the pain" (T268). She said, "(i)f I don't listen to him he's going to hit me or he reminds me about my nose, mouth and my vagina" (T268).
Count 18, involving fellatio, occurred on 31 January 2015. The applicant and the complainant were on the lounge when the applicant got up all of a sudden, pulled his pants down and instructed the complainant to suck his penis (T274). She said that he was close to her face and he held her head towards his penis before asking her to open her mouth and to suck his penis. She said, "I didn't want to suck him and I couldn't avoid because he was holding my head so tight toward his penis" and then the penis was in her mouth ''forcefully" (T274). If she tried to move her head away the applicant would "push my head and tells me to remember about my nose" (T274). She said, "I was very much depressed. I was not comfortable. It was against my will. I didn't have a choice but I have to do it" (T274). The applicant was "very, very aggressive", he was pulling her hair and putting her head toward his penis, he was "very rough". She told him to stop, "I can't do, that's enough" but he told her that "it's the punishment what I have to go through" (T274).
Count 19, again involving digital penetration with multiple fingers, occurred after count 18 on the same day (31 January 2015). The applicant told the complainant that he was going to bring down the sex toy to have sex with her and she said, "I don't want it because I'm scared' (T281). He told her to undress and lie down. She did so "because he wanted me to do it and I had to listen to him ... because it's a punishment for me so whatever he wants me to do I have to do it" (T282). He tied the toy around his waist and pushed her bottom up so that he could insert the toy from behind. He put three fingers into her vagina. He was "very crazy looking", his eyes were "wide open", "garnishing his teeth" and he was "very, very rough" (T283). He was holding her head, pushing her down and did not let her get up. She could hear the "cracking" sound of the applicant's teeth, which sounded like "someone crackles nuts or something" (T283). She was "very, very scared'' and concerned about her safety because the applicant was "acting crazy". She was scared that if she didn't do what he said, "I was scared that I'm going that night" (T283). She said that "he was threatening me about my nose and everything", she was "very, very scared ... scared to death" and she was ''just lost and just -just surviving and listening [to] someone that is controlling me" (T283). She said, "I listened to him, whatever he said just to survive for my two children" (T283).
Count 20, again involving vaginal penetration with the sex toy, was a continuation of count 19. The applicant tried to push four fingers into the complainant's vagina then inserted the toy. She said, ''(n)o I don't want the toy", and he said "I can't have normal sex with you because you have got disease" (T284). Both the applicant's fingers and the toy were inside her and it was very painful. She cried and asked the offender if he felt sorry for her and he said it was ''just a punishment" and that he did not care because he did not feel sorry for her (T284). When the toy and his fingers were inside her, the applicant called the complainant a "low life prostitute" and "just another woman" (T285). She tried to run for the front door but realised that she was naked. She tried to run upstairs but the applicant came after her, grabbed her and brought her back downstairs. She ran to the door because she wanted to get away, because she said the applicant was "raping" her and was "doing things" that were "unbearable" and she "couldn't take it no more". She said that she was "running like a madwoman that doesn't know what to do, she just wants to escape for her life" (T266).
Count 21, again involving digital penetration, occurred that evening and was one of a number of three offences perpetrated at that time. At one stage the applicant tried pushing his fingers into the complainant's vagina and push his whole hand into her vagina. The complainant said that it was painful and she jumped on the lounge (T306). The applicant grabbed her and told her to come down. She thought he was going to push his whole hand into her vagina and "pull everything out" and "I will die maybe" (T306).
Count 23, again involving digital penetration, occurred the same evening. The complainant's evidence (accepted by the trial judge despite submissions to the contrary by the applicant) was that the applicant put his hand inside her vagina and she felt it (T307). The victim thought "now he's going to kill me". She said that "he was very, very crazy, weird, evil" and was mumbling to himself (T307).
Count 22, again involving vaginal penetration with the sex toy, occurred the same evening, following Count 23. The applicant grabbed the sex toy, pushed the complainant down and was using the toy from behind as he was "garnishing his teeth" and chewing tobacco (T288). The complainant said it was painful and that the applicant kept pushing it in and taking it out of her vagina. She said that he did this "so hard' that she yelled and screamed. She pushed him away, but she did not have much power and he was a "big man" (T288). The applicant "didn't care he just abused me more, he was very very rough on me" (T288). She said it was "so brutal" and she did not know how to explain it. The applicant said, "my time was coming and I didn't have a choice", which the complainant took to mean that the was going to kill her (T288; 289). She struggling to breathe and was in a lot of pain and tried to push him but she did not have enough power to do so. The applicant kept holding her head and kept pushing the toy "very, very hard' and she told him that she could not take it anymore. She was screaming and at one point her son came downstairs (T290; 291). She said, "he was raping me in a way without my consent, I didn't want him to do that but I didn't have a choice" (T290).

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Endnotes

Decision last updated: 21 March 2022

Medium Neutral Citation:	DS v R [2022] NSWCCA 55
Hearing dates:	15 October 2021
Date of orders:	21 March 2022
Decision date:	21 March 2022
Before:	Meagher JA at [1]; Fullerton J at [94]; Adamson J at [123]
Decision:	Application to extend time to appeal refused.
Catchwords:	CRIMINAL LAW – appeals – application for leave to appeal against conviction – proposed appeal on mixed questions of fact and law – trial by judge alone – where applicant convicted on 21 counts of sexual intercourse without consent and two related offences – where offences committed against wife as “punishment” for alleged infidelity – whether trial judge misdirected himself as to element of consent under Crimes Act 1900 (NSW), s 61HA – whether trial judge erred in admitting evidence as to relationship or in using it to engage in tendency reasoning – whether verdict unreasonable or cannot be supported CRIMINAL LAW – appeals – application for extension of time in which to appeal – whether merit in any proposed ground of appeal – extension of time refused
Legislation Cited:	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 Cited:	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
Category:	Principal judgment
Parties:	DS (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (In person) G Newton (Respondent) Solicitors: Applicant (In person) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/110707; 2015/30628
Publication restriction:	An order was made at Parramatta District Court on 28 March 2017 pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW), s 7(a) as follows: That the names AS, WS, JS and ES be suppressed on the grounds that it is necessary to avoid causing undue distress or embarrassment to a party or witness in criminal proceedings involving offences of a sexual nature. AS is to be referred to by the pseudonym AS, WS to by the pseudonym WS, JS to by the pseudonym JS and ES to by the pseudonym ES. Publication of any matter which could identify the victim is prohibited under Crimes Act 1900 (NSW), s 578A.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2017] NSWDC 207; [2017] NSWDC 358 Date of Decision: 04 August 2017 Before: Hatzistergos DCJ File Number(s): 2015/110707; 2015/30628