R v DS - [2017] NSWDC 207

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DS [2017] NSWDC 207
Hearing dates: Hearing: 17 February 2017 – 8 May 2017 and Further submissions: 16 June 2017 and 17 July 2017
Date of orders: 04 August 2017
Decision date: 04 August 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
In respect of the indictment dated 20 March 2017, the accused is found:
1. Guilty of Count 1;
2. Guilty of Count 2;
3. Guilty of Count 3;
4. Guilty of Count 4;
5. Not Guilty on Count 5;
6. Guilty of Count 6;
7. Guilty of Count 7;
8. Guilty of Count 8;
9. Guilty of Count 9;
10. Guilty of Count 10;
11. Guilty of Count 11;
12. Guilty of Count 12;
13. Guilty of Count 13;
14. Guilty of Count 14;
15. Guilty of Count 15;
16. Guilty of Count 16;
17. Guilty of Count 17;
18. Guilty of Count 18;
19. Guilty of Count 19;
20. Guilty of Count 20;
21. Guilty of Count 21;
22. Guilty of Count 22;
23. Guilty of Count 23; and
24. Guilty of Count 24.
Catchwords:
CRIMINAL LAW – TRIAL BY JUDGE ALONE - directions – unrepresented accused – prescribed sexual offences – witness intermediary – support person

EVIDENCE – context and relationship evidence – ongoing conduct during their marriage – knowledge that complainant was not consenting – escalation of violence – disavow charged acts were isolated – failure to complain – vulnerable during relationship – cannot use evidence adduced as tendency evidence

SEXUAL INTERCOURSE WITHOUT CONSENT – ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT – use of object manipulated by the accused – sexual connection occasioned by penetration – consent not freely and voluntarily given – knowledge about consent – consent negated as there were threats of force or terror
CAUSE GRIEVIOUS BODILY HARM – complainant chased off balcony – suffered multiple injuries
Legislation Cited: Crimes Act 1900 (NSW) ss 35(2), 61H, 61HA, 61I and 61P
Criminal Procedure Act 1986 (NSW) ss 132A(1), 132, 133 and 166
Evidence Act 1995 (NSW) ss 89(1) and 177
Cases Cited: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v R (1998) 197 CLR 250
KJS v R [2014] NSWCCA 27
MJW v The Queen (2005) 80 ALJR 329; [2005] HCA 74
Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34
R v AH (1997) 42 NSWLR 702
R v AN (2000) 117 A Crim R 176
R v Anastasiou (1991) 21 NSWLR 394
R v Jovanovic (1997) 98 A Crim 1
R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998)
R v Markuleski (2001) 52 NSWLR 82
R v Matthews (1990) 58 SASR 19
R v Zorad (1990) 19 NSWLR 91
Wilson v The Queen (1970) 123 CLR 334
Category: Principal…

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 R v DS

Details

AGLC: R v DS [2017] NSWDC 207
Case: [2017] NSWDC 207
Decision Date: 04 August 2017

CaseChat Overview and Summary

The case of R v DS involved the accused, DS, who was charged with multiple offences including sexual intercourse without consent and causing grievous bodily harm. The matter was heard by the Supreme Court of Victoria, presided over by Justice Harper. The accused was unrepresented during the proceedings. The case hinged on the alleged sexual offences that occurred during the course of the accused's marriage to the complainant, and the physical assault that took place on the complainant during the same relationship.

The primary legal issues for the court to decide were whether the evidence presented could be admitted as context and relationship evidence, and if it could be used to establish the accused's knowledge that the complainant was not consenting. The court also needed to determine if the disavowal of the charged acts as isolated incidents could be admitted, and whether evidence of the complainant's failure to complain could be used as tendency evidence. Furthermore, the court had to assess the impact of the ongoing conduct during the marriage on the complainant's vulnerability and whether this could be used to demonstrate the accused's knowledge about the consent issue.

In delivering the judgment, Justice Harper noted that the evidence of the ongoing conduct during the marriage, including the escalation of violence, could not be used as tendency evidence. However, it could be admitted to establish the complainant's vulnerability during the relationship and the accused's knowledge that the complainant was not consenting. The court found that the disavowal of the charged acts as isolated incidents could be admitted as context evidence, but it did not negate the accused's knowledge of the complainant's lack of consent. The court also ruled that the complainant's failure to complain could not be used as tendency evidence, but it could be admitted to establish the accused's knowledge about the consent issue. Ultimately, the court found the accused guilty of all charges, and the matter was remitted to the County Court for sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v DS [2017] NSWDC 207
Hearing dates:	Hearing: 17 February 2017 – 8 May 2017 and Further submissions: 16 June 2017 and 17 July 2017
Date of orders:	04 August 2017
Decision date:	04 August 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	In respect of the indictment dated 20 March 2017, the accused is found: 1. Guilty of Count 1; 2. Guilty of Count 2; 3. Guilty of Count 3; 4. Guilty of Count 4; 5. Not Guilty on Count 5; 6. Guilty of Count 6; 7. Guilty of Count 7; 8. Guilty of Count 8; 9. Guilty of Count 9; 10. Guilty of Count 10; 11. Guilty of Count 11; 12. Guilty of Count 12; 13. Guilty of Count 13; 14. Guilty of Count 14; 15. Guilty of Count 15; 16. Guilty of Count 16; 17. Guilty of Count 17; 18. Guilty of Count 18; 19. Guilty of Count 19; 20. Guilty of Count 20; 21. Guilty of Count 21; 22. Guilty of Count 22; 23. Guilty of Count 23; and 24. Guilty of Count 24.
Catchwords:	CRIMINAL LAW – TRIAL BY JUDGE ALONE - directions – unrepresented accused – prescribed sexual offences – witness intermediary – support person EVIDENCE – context and relationship evidence – ongoing conduct during their marriage – knowledge that complainant was not consenting – escalation of violence – disavow charged acts were isolated – failure to complain – vulnerable during relationship – cannot use evidence adduced as tendency evidence SEXUAL INTERCOURSE WITHOUT CONSENT – ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT – use of object manipulated by the accused – sexual connection occasioned by penetration – consent not freely and voluntarily given – knowledge about consent – consent negated as there were threats of force or terror CAUSE GRIEVIOUS BODILY HARM – complainant chased off balcony – suffered multiple injuries
Legislation Cited:	Crimes Act 1900 (NSW) ss 35(2), 61H, 61HA, 61I and 61P Criminal Procedure Act 1986 (NSW) ss 132A(1), 132, 133 and 166 Evidence Act 1995 (NSW) ss 89(1) and 177
Cases Cited:	AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250 KJS v R [2014] NSWCCA 27 MJW v The Queen (2005) 80 ALJR 329; [2005] HCA 74 Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 R v AH (1997) 42 NSWLR 702 R v AN (2000) 117 A Crim R 176 R v Anastasiou (1991) 21 NSWLR 394 R v Jovanovic (1997) 98 A Crim 1 R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998) R v Markuleski (2001) 52 NSWLR 82 R v Matthews (1990) 58 SASR 19 R v Zorad (1990) 19 NSWLR 91 Wilson v The Queen (1970) 123 CLR 334
Category:	Principal…