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DS v The The Queen

DS v The The Queen

Case [2022] NSWCCA 55 21 March 2022

Appeal

Jurisdiction

Consent

Admissibility of Evidence

Criminal Liability

Criminal Law

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading DS v The The Queen

Details

AGLC: DS v The The Queen [2022] NSWCCA 55
Case: [2022] NSWCCA 55
Decision Date: 21 March 2022

CaseChat Overview and Summary

The defendant, DS, sought leave to appeal against his conviction on 21 counts of sexual intercourse without consent, as well as two related offences, against the Crown. The application was heard in the NSW Court of Criminal Appeal, where DS argued that the trial judge misdirected himself in relation to the element of consent under section 61HA of the Crimes Act 1900 (NSW), and that the trial judge erred in admitting evidence of the relationship between DS and his wife or in using that evidence to engage in tendency reasoning. DS further contended that the verdict was unreasonable or could not be supported by the evidence. The Crown opposed the application on the basis that there was no merit in any of the proposed grounds of appeal.

The court had to determine whether the trial judge erred in his directions to the jury regarding the element of consent and whether the trial judge improperly admitted evidence of the relationship between DS and his wife or used that evidence in a way that engaged in tendency reasoning. The court was also required to assess whether the verdict was unreasonable or could not be supported by the evidence. In assessing these issues, the court had to consider the relevant legal principles, the evidence presented at trial, and the arguments of both parties.

In its judgment, the court found that there was no error in the trial judge’s directions to the jury regarding consent, and that the trial judge did not improperly admit evidence of the relationship or use it in a way that engaged in tendency reasoning. The court held that the verdict was not unreasonable and was supported by the evidence. Accordingly, the application for leave to appeal was dismissed and the application for an extension of time in which to appeal was also refused. The court held that there was no merit in any of the proposed grounds of appeal and that there was no justification for extending the time in which to appeal.

Orders