DS v The The Queen

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.