DS v R

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).

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:

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 contained the following 24 counts:

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 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.

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

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:

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.

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].

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]).

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]:

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

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

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 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]).

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.

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]:

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 2nd 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 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]).

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:

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]:

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]:

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]:

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.

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.

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:

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]:

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.

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:

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:

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:

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:

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.

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]):

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]:

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:

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.

For these reasons, I would make the following orders:

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:

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.

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:

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]

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]

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:

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.