DS v R - [2023] NSWCCA 151 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

DS v R

[2023] NSWCCA 151

Court of Criminal Appeal (NSW)|2023-02-24|Before: Beech-Jones CJ, Yehia J, Weinstein J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-02-24

Before

Beech-Jones CJ, Yehia J, Weinstein J

Catchwords

[1996] HCA 22 De Jesus v The Queen [1986] HCA 65
(2021) 95 ALJR 937 Khazaal v R [2011] NSWCCA 129 Maric v R (1978) 20 ALR 513
(1978) 52 ALJR 631 Nudd v R [2006] HCA 9
[1984] HCA 5 Tomlinson v R (2022) 107 NSWLR 239

Source

Original judgment source is linked above.

Catchwords

[1996] HCA 22 De Jesus v The Queen [1986] HCA 65(2021) 95 ALJR 937 Khazaal v R [2011] NSWCCA 129 Maric v R (1978) 20 ALR 513(1978) 52 ALJR 631 Nudd v R [2006] HCA 9[1984] HCA 5 Tomlinson v R (2022) 107 NSWLR 239[2022] NSWCCA 16 Weiss v The Queen (2005) 224 CLR 300

Judgment (16 paragraphs)

[1]

Background and Offences

The Crown case relied primarily, although not solely, on the evidence of JS. The allegations involved acts of physical and sexual violence over many years perpetrated by the applicant on the complainant, his de facto partner. The Crown case was that the offences occurred between November 1992 and November 2018.
The complainant was born in 1959 and met the applicant when she was 17 or 18 years old. The complainant had a 6-month-old daughter from a previous relationship, SS (born in 1976). [2] In 1976, the complainant and the applicant moved into the applicant's parents' residence together. They lived in Wee Waa for approximately 8 years. They had four daughters: KS (born in 1980); PS (born in 1981); CT (born in 1982); and DS (born in 1988). [3]
For the first few years, the relationship between the applicant and the complainant "was relatively good". [4] After a couple of years had elapsed, the applicant began to be violent towards the complainant, which involved punching and forcing sex on the complainant. [5] The violence continued until the relationship ended in 2018. Around 1985, the family moved to a cotton property outside Moree, then in 1988, the family moved to Wilger Place, Moree. On 9 October 1991, the applicant and the complainant purchased a property at Gwydir Street, Moree. [6]

[3]

The Severance Application and Tendency Notices on 2 June 2021

Before the jury was empanelled, the trial judge heard the first application by the applicant to sever counts 4 and 5, as well as an application by the Crown to adduce tendency evidence (in three tendency notices). The tendency notices sought that the evidence on each count would be cross-admissible; to adduce evidence of uncharged acts of violence by the applicant towards the complainant; and to adduce evidence of uncharged acts of sexual offences by the applicant against the complainant. [47]
Trial counsel submitted, inter alia, that the nature of the allegations in counts 4 and 5 were "so fundamentally different as to give rise to [an] application for severance of the indictment". [48] Furthermore, these allegations were said to cause "extreme prejudice to a fair trial, on all charges, by the implication of a claim that the accused, would seek to have an animal sexually penetrate his wife". [49] Counsel submitted this presented prejudice that was "so extraordinary that the Court wouldn't countenance a trial of the other charges because the charges on the other trial would be dangerously unfair; fairness would be the first thing out the window, so shocking is a claim of that kind". [50]
On 2 June 2021, the trial judge delivered a short judgment refusing the Crown's application on tendency but allowing the Crown to rely on some of the uncharged misconduct as context evidence. [51]
The trial judge refused the severance application, stating: "I turn then to a notice of motion, orders sought that counts 4 and 5 be severed from the proposed indictment such that there be an order for a separate trial for [DS] on count 4 and 5 in the present proposed indictment. This relates to the allegations concerning the dog. These are most unpleasant allegations, but there is the circumstance that - it is the same witnesses relevant to this, and this is a trial where there will be allegations of other violence, and the use of unpleasant digital and a dildo and a bottle, and in my view, there is no relevant unfairness." [52]
A jury was empanelled on 3 June 2021. During the trial, three applications were made to discharge the jury, all of which were unsuccessful. Two discharge applications are relevant to ground 2 of the appeal.

[4]

The Severance Application on 7 June 2021

On 7 June 2021, following the evidence of the complainant in examination-in-chief, the trial judge heard an application to discharge the jury with what appears to have been a renewed application to sever counts 4 and 5.
Counsel relied upon the way in which the complainant's evidence-in-chief was elicited in relation to counts 4 and 5 to submit that undue emphasis was placed on the circumstances relating to those allegations, in comparison with the way in which evidence-in-chief was elicited in relation to the other counts.
The trial judge refused the application. Although the applicant does not rely upon the refusal of this application in support of the grounds of appeal, it is relevant to note that in delivering judgment on 7 June 2021, her Honour stated: "I am of the view there has been no prejudice or any change in the reasoning that I gave in my earlier judgment. In my view, there has been no prejudice or embarrassment to the accused. I repeat, all of the offending arose out of the same set of circumstances with the same witnesses. It may not be that these particular counts are of the same or similar character, but it is really within a context of serious offending in terms of allegations against the accused. Therefore, I decline to severe these offences, as I have previously determined. In relation to a discharge of the jury, what I have already said is relevant. There is no specific test. These allegations go back to an arrest date of 29 July 2019, and the complaint was made on 18 February 2019. We are now into June 2021. The trial had to be adjourned on at least one other occasion because of COVID considerations. The date of the committal was 6 April 20. The case was sent down specifically to this Court from Moree because Moree cannot conduct jury trials. I have considered a recent case which is a restricted judgment [2021] NSWCCA 54, and I refer to para 17 and 18, but I will not say anything more about those paragraphs. But, I have certainly applied the guidance given in determining that at this stage, there will not be any discharge of the jury. So, the application is refused and the trial will proceed." [53]

[6]

The Decision to Discontinue Count 5

On 15 June 2021, and following the complainant's evidence-in-chief, the Crown foreshadowed that there may be an application by the Crown to amend count 5 to an actual sexual intercourse without consent offence, rather than an attempt, because part of the complainant's evidence detailed that the dog's penis had penetrated the lips (or "flaps") of the complainant's vagina. [56]
On 16 June 2021, the Crown withdrew the application to remove the word "attempt" from count 5 and instead advised that the Crown would have to proceed by way of seeking leave to present an "ex officio indictment", or, more accurately, an ex officio count of a completed act of sexual intercourse without consent. [57]
On 17 June 2021, the Crown Prosecutor advised that a direction for no further proceedings in relation to count 5 had been made and leave was sought to amend the indictment by adding an ex officio count alleging a completed act of sexual intercourse without consent. [58] The trial judge rejected the Crown's application to add an ex officio count. [59]
In the presence of the jury, the Crown Prosecutor informed the Court that the Director had made a direction for no further proceedings in relation to count 5. [60] The trial judge then instructed the jury further on this topic as follows: "HER HONOUR: Ladies and gentlemen of the jury, the Director of Public Prosecutions has directed that there be no further proceedings in relation to that particular count, and would you please delete that count from your indictment. When you do get the copy, which will be a copy of the amended indictment, it will not be crossed out because I can't cross it out, but it's noted on the transcript that there will be no further proceedings. So, it's not necessary to say anything more, is it, Mr Brezniak? BREZNIAK: Just to remind the jury, your Honour, that that count pertains to that horrible account of a dog. HER HONOUR: Thank you. Yes, that was the count concerning the attempt to sexual intercourse with [JS] in relation to the dog, Patch." [61]
The trial judge raised with counsel whether the jury should be informed why count 5 was not being proceeded with. It was agreed that nothing further should be said to the jury except that they are told not to speculate. [62]

[9]

Applicant's Submissions

The applicant submitted that the trial judge's decision to refuse the tendency evidence, in the form of cross-admissibility of various counts, played a role in the discretionary decision that the trial judge was asked to make. The applicant submitted that the trial judge did not have regard to this relevant factor in the judgment of 2 June 2021. In that sense, it was submitted by the applicant, that the trial judge failed to take into account a relevant consideration. [65]
The applicant contended that the evidence relating to counts 4 and 5 was so "depravingly different" [66] in character that they could not be fairly couched within the same category as the other counts.
The applicant submitted that counts 4 and 5 were not intimately linked with the other counts on the indictment and were not part of one unified violent transaction against the complainant, nor could it fairly be argued that counts 4 and 5 occurred within a short time of the other counts on the indictment. Counts 4 and 5 were years apart from any other count.
The applicant contended that there was a feature of counts 4 and 5 that created a risk of impermissible prejudice, namely that the evidence involving the cattle dog was so unusually depraved in nature that there was a real risk that the jury would impermissibly use that evidence to reason that the applicant was a vile and sexual predator, who took pleasure in sexually assaulting his partner with unusual objects. The applicant submitted that there is a risk that the impermissible prejudice impacted the jury's capacity to calmly and rationally consider the evidence relating to counts 8 and 9.
The applicant contended that it is difficult to see how judicial directions could have ever "cured" the risk of prejudice or how the jury would have been able to "strictly compartmentalise" the evidence in relation to counts 4 and 5. The applicant drew a comparison to R v Toohey (No 1) [2017] NSWSC 846 at [64] (Fagan J): "Of course a direction would be given to counter such impermissible reasoning but I consider there is a significant risk that it would be asking too much of the jury to expect that the evidence tending to prove the different categories of violence against a child, some to the head and some to the rectum, be strictly compartmentalised."

[11]

Consideration

The power to order a separate trial of any count or counts of the indictment is provided in s 21(2) of the Criminal Procedure Act: 21 Orders for amendment of indictment, separate trial and postponement of trial … (2) If of the opinion - (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment.
Section 29 of the Criminal Procedure Act is relevant to the statutory context of an application to sever counts from an indictment, and provides: 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character.
As was observed by this Court in Roach v R [2019] NSWCCA 160 ("Roach") at [80] (Bathurst CJ, Bell P (as his Honour then was) and Johnson J), s 29(1) is designed to facilitate the fair and efficient disposition of criminal justice and affords the court a broad power to hear and determine related offences. The expression "arise out of" is of particular broad ambit and is used in other contexts to promote the efficient resolution of related disputes: see also Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165.
Section 29(3) of the Criminal Procedure Act provides: 29 When more than one offence may be heard at the same time … (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.
The interests of justice encompass the interests of the Crown, witnesses, and the public: see Roach at [82], citing Osman v R [2006] NSWCCA 196 at [22]. However, the focus in severance applications is on the consequences of joinder for the accused and the impact which joinder would likely have on his or her ability to obtain a fair trial: see Allen v R [2020] NSWCCA 173 ("Allen") at [52] (Bell P (as his Honour then was), Davies and Button JJ agreeing).
In Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, Brennan J stated at 541-542: "When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."
This general statement was adopted and applied by Gibbs CJ and Dawson J (and reaffirmed by Brennan J) in De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1.
The principles applicable to the exercise of discretion to sever one or more counts and order separate trials can be summarised as follows:
First, s 21(2) of the Criminal Procedure Act confers a discretion on the trial judge to order separate trials upon a view being formed as to the possibility of the accused person being "prejudiced" or "embarrassed" in his or her defence. The relevant prejudice is not that the evidence merely tends to establish the Crown case but rather the danger that the jury may misuse the evidence by way of, for example, "appealing to the jury's sympathies, arousing a sense of horror or provoking an instinct to punish": see Castagna v R [2012] NSWCCA 181 at [67] per Latham J (McClellan CJ at CL and Harrison J agreeing); R v BD (1997) 94 A Crim R 131 at [139].
Secondly, once an opinion has been formed that an accused person may be prejudiced or embarrassed in his or her defence, the question as to whether the court should exercise its discretion in favour of or against severance, will be affected by a number of considerations which include, but are not limited to, the likely degree of prejudice or embarrassment; the ability to cure or mitigate any prejudice by judicial direction; the extent of severance required; the cross-admissibility of evidence; the impact of severance on witnesses who may be required to give evidence on two or more occasions; the complexity of directions required in order to ameliorate any prejudice or embarrassment; and the nature of the offence or offences to be severed: see Allen at [55].
Thirdly, it is for the accused in each case to demonstrate that there is a risk of impermissible prejudice by reason of a joint trial which cannot sufficiently be cured by direction to the jury: see R v Verma (1987) 30 A Crim R 441 at 446.
I am not persuaded that the applicant has demonstrated error on the part of the trial judge in refusing to sever counts 4 and 5 on the indictment. The trial judge, when considering the application for severance, observed that there is always a consideration of some prejudice in a trial where there are a number of counts in the indictment. In determining whether the applicant would be prejudiced or embarrassed in his defence by reason of the evidence constituting counts 4 and 5, her Honour identified, correctly in my view, that the other allegations on the indictment were of an extremely violent nature.
The whole of the applicant's alleged conduct was "unpleasant, and of a violent and humiliating character". [67] The other charges of sexual assault had their own features of humiliation of the complainant and contained shocking details. At the time of the severance application, the trial judge was aware that the dildo referred to in count 8 was "some sort of homemade object", [68] and used in the sexual assault in count 9 was a XXXX beer bottle. The Crown case was that each occasion involved significant violence in the context of a long-term domestic relationship.
In referring to the test in ss 29(1) of the Criminal Procedure Act but also relevantly to 21(2), the trial judge observed that the offences arose out of the same set of circumstances, being the relationship between the applicant and the complainant. [69]
While the Crown was precluded from relying on cross-admissibility, the Crown case was that the long relationship featured enduring and repeated physical and sexual violence. The trial judge expressly referred to this feature in her judgment. A discrete number of five instances had been selected from over a period of approximately 25 years, which were particularly or starkly memorable to the complainant and where a number of her daughters had witnessed the injuries inflicted as a result of the violence. The Crown was permitted to rely upon context evidence to the effect that the relationship involved repeated instances of violence perpetrated by the applicant against the complainant, and the trial judge directed the jury on the use of context evidence in the summing up.
A determination that the trial judge did not err in refusing the severance application does not, however, completely dispose of ground 1. In dealing with ground 1, this Court must examine the progression of the trial to assess whether the failure to sever the counts resulted in a miscarriage of justice. In DR v R [2019] NSWCCA 320 at [20], Brereton JA said: "A Court of Criminal Appeal considering whether injustice has accrued to one of the accused from a joint trial is in a different position to a trial judge considering an application for severance at the outset of the trial, as was explained by Winneke P (with whom Charles and Vincent JJA agreed) in R v Alexander and McKenzie: '[26] Whilst it is significant for an appellate court to be satisfied that an application for a separate trial has been made and refused, the issue for it will depend not so much upon an erroneous exercise of the judge's discretion as it will upon the view which it forms upon the question whether the course of the trial has constituted a miscarriage of justice to the applicant.'"
It appears to be the position of both parties that the issue for this Court will not depend so much on whether the trial judge made the asserted errors, but upon the view of whether the course of the trial constituted a miscarriage of justice to the applicant. The question of whether a miscarriage of justice arose in the applicant's trial is also relevant in the context of the refusal of the trial judge to discharge the jury after count 5 was no billed. It follows, therefore, that the question as to whether a miscarriage of justice has been occasioned, should be answered after consideration of ground 2.

[12]

Ground 2 - The Trial Judge Erred in Refusing the Application to Discharge the Jury Once the Crown had Elected to No Bill Count 5 which led to a Miscarriage of Justice and an Unfair Trial

The evidence given by the complainant about count 5 was different to the way in which the Crown had opened to the jury. Count 5 was charged as an attempt, namely attempting to penetrate the complainant's vagina with the dog's penis, immediately following an incident of forced penile vaginal intercourse between the applicant and the complainant.
The Crown's opening to the jury on 3 June 2021, in relation to counts 4 and 5, was as follows: "On 18 May 2000, police obtained records to show that the house at 25 Gwydir Street, Moree, was sold. On 7 June, the accused and complainant purchased a house at Alabar Road at Yarraman. Counts 4 and 5 are said to have occurred at that house at Yarraman. They relate to an incident that the complainant says happened out at the dog kennel. The complainant says that after they moved to Yarraman that they acquired a cattle dog, which had the name of Patch. She references the timing of these incidents because there was some incident involving her brother at the Yarraman house at the end of 2002, and she says that these events, she thinks, occurred between 1 July 2002 and 30 June 2003. On this occasion, the complainant says that the accused dragged her from the house over to the dog kennel, and the dog, you will hear, was chained up outside near somewhere where there's a windmill. It had a shelter and it had a long chain. She says that she was assaulted, that she was dragged along that distance from the house over to the dog kennel, and that her pants were pulled down. The accused began having sexual intercourse with her by putting his penis into her vagina. She says that, after a time, he ejaculated, she believes, onto her back. That is count 4, sexual intercourse without consent. The complainant says that when that sexual intercourse happened, she was on her knees and on her hands on the ground, and in the vicinity of where the dog was. Count 5 is what the complainant says happened next. She says that the accused lifted the dog, Patch, up onto her back and that he attempted to put the dog's penis into her vagina, but he was unable to do so. He spent some time trying to do that. She was still in the position that she was on her knees and on her hand. She says that, after a time, the accused went back to the house, that she stayed where the dog kennel was, that she was distressed and crying. I expect she will tell you that her daughter, [DS], spoke to her, asked her what was wrong and that she was too upset and embarrassed to tell her anything about what had happened. You will hear from [DS], who was still living at home at that time, that she had seen her father drag her mother across the gravel from the house to the area where the dog was tied up, but because it was dark and [DS] was looking through a window, she was unable to see what happened over at the dog kennel, but she will tell you about certain things that she could hear and she will tell you about the state that her mother was in - that she did go out and see her mother and speak to her, and the state that her mother was in at that time, that she was distressed and crying. So that is count 5. It's an attempted sexual intercourse without consent." [70]
It may be accepted that the complainant became emotional when she was giving evidence about these incidents and that she was afforded a break. Upon her return to the witness box, the Crown suggested that they go through the evidence "one step at a time". [71] The complainant gave the following evidence: "Q. So, when you first get there, you're in that position on the ground, okay, with your forearms and your knees, and again, just taking it one step at a time. What was the next thing that happened, after you were on the ground in that way? What was the next thing you remember happening? A. [The applicant] started rubbing Patch up - masturbating Patch, or - he was pulling Patch off. Q. How did you know he was doing that? A. Because he was talking to the - talking to Patch. Q. Do you remember what he was saying? A. I don't remember. No, I don't. Q. What happened next? A. [The applicant] had sex with me. Q. When you say, [the applicant] had sex with you - A. He forced himself on me. Q. What was the first thing that he - what he did? What did he physically do? A. Poked his penis inside me. Q. When you say inside you, inside what part of you? A. Vagina … Q. He put his penis into your vagina-- A. Yes. Q. --was there anything said, at that time, either by [the applicant], or by you? A. I kept telling him it was hurting, because the gravel was just tearing - tearing my legs apart, and my arm - and everything he rocked - it just hurt. And he'd pull out, then he tried Patch." [72]
While the applicant had his penis in the complainant's vagina, the dog was next to the applicant. The complainant gave the following evidence: "Q. When you say [the applicant] had his penis in your vagina, are you able to say where the dog was when that was happening? A. The dog was next - there, next to him. Q. Are you able to say how long [the applicant] had his penis in your vagina for? A. Not long. Q. When you say not long, can you give some approximation of what you mean by that? A. He had his penis in for, I don't know, a couple of minutes, a minute, I don't know. And he'd pull out and then he'd bring the dog into it and it just went back and forwards, back and forwards. Q. You said that he pulled out. What do you mean by that? A. He pulled his penis out. Q. What is the next thing you remember happening? A. He tried to put Patch's penis in me. Q. What made you think he was trying to put Patch's penis in you? What was he doing? A. Patch was on the back of me. Q. When Patch was on the back of you, what was [the applicant] doing? A. Pulling Patch off, as far as I know. Q. When you say pulling Patch off, what made you think that's what he was doing? A. ..(not transcribable).. he just was rubbing Patch to try and - because he tried to put Patch's penis inside me and you can feel the jerk. Q. When you say you could feel the jerk - and you indicated there, moving your hand backward and forward - A. Mm. Q. -where could you feel that? A. I had Patch's-front of Patch's legs up near my shoulders, apart. And Patch would - I'm nearly the same size as what the dog is. When he was pulling Patch, he was jerking me too. I don't know if that's the word, but that's what I used. Q. Just one step at a time. You said that you had Patch's paws up on your shoulders? A. Yes. Q. You say the dog was about the same size as you? A. Lengthwise, yes, yeah. Q. You said that- A. ... (not transcribable) ... Q. --he was jerking you too. Can you explain what you mean by that? What could you feel? A. Well, I could feel Pat - feel [the applicant's] fingers, because he tried to put Patch's dick inside me, and I could feel that, because he scratched me. Q. Who scratched you? A. [The applicant]. Q. Where did he scratch you? A. On - on my flaps. Because he was trying to put Patch's dick inside me. Sorry. Q. No, no. We're just going to go through it slowly, and just one thing at a time, okay? You could feel [the applicant's] fingers scratching-- A. Yes. Q. -and you've said, scratching your flaps. A. Yes. Q. What do you mean - it may sound like a ridiculous question - but what do you mean by your flaps? A. My inside - my vagina. Q. In terms of Patch, you've said his paws are on your shoulders. Was any other part of Patch in contact with you? A. Yes. His belly would have been - I don't know - sort of down me, [the applicant] was down the other end of Patch. And Patch's dick was inside me - inside my flaps, with [the applicant's] fingers. I don't… (not transcribable).. Q. When this was happening, was there anything being said by either you, or by [the applicant]? Was there any conversation? A. I asked him to stop. I begged him to stop. He didn't stop. Q. Was anything said by [the applicant], to you? A. Just, called me names. Q. This incident with Patch, how long did that go on for? A. Felt like forever. I -I -I don't know. Hour, maybe, half hour. Hour, maybe. I don't know. Q. Do you remember how it stopped? Do you remember how it ended? A. This happened so many times, I don't know which - which is which. I think, when he was finished, he went to the house. When [the applicant] was finished, he went to the house." [73]
Following this evidence, the Crown foreshadowed an application to amend count 5 to delete the words "did attempt to have sexual intercourse with [JS] without her consent". [74] That application was opposed. [75] The amendment application does not appear to have been pressed. The Crown subsequently advised the Court that a direction for no further proceedings in relation to count 5 had been made. The Crown then made an application to amend the indictment by adding an ex officio count of sexual intercourse without consent, charging a completed act of sexual intercourse as opposed to an attempt. [76] The trial judge refused the Crown's application to amend the indictment by adding an ex officio count.
On 17 June 2021, an application was made to discharge the jury in the following terms: "BREZNIAK: Yes, it's just that I did wish the Court to accommodate a brief application at some stage. I just indicate that, if now that count 5 is out, the jury's got all that evidence about a dog, which I understand is no longer to be led. I just do not understand how your Honour will remove that prejudice in this trial; in other words, from the remaining charges. I just understand that. The jury, I don't know‑‑ … BREZNIAK: Yes, but as long as your Honour understands that my position, on behalf of [DS], is that a fair trial cannot be held in‑‑." [77]
The application to discharge the jury at that point was succinct, no doubt because the relevant issues and asserted prejudice had been comprehensively referred to in the original application to sever counts 4 and 5 and the subsequent applications during the trial.
In opposing the application to discharge the jury, the Crown submitted that the evidence relating to the dog was "very much part of" count 4. The trial judge requested that the Crown identify the parts of the transcript relied upon in support of count 4. Trial counsel returned to the application to discharge the jury, submitting: "BREZNIAK: Yes, but my application envisages this difficulty that insofar as it does involve the so called masturbating Patch the jury have heard that which is now not part of the case against [DS], and that it's so horrible that they can't be fair to [DS] in the remaining charges. … BREZNIAK: That's my application. Will your Honour rule on it, please? HER HONOUR: Yes, it's rejected. … HER HONOUR: But that doesn't mean that I won't be looking very carefully at what the Crown wants to rely upon." [78]

[13]

Applicant's Submissions

The applicant submitted that upon count 5 being no billed, the jury should have been discharged. The applicant contended that it is difficult to imagine how the jury could have simply disregarded the evidence the subject of count 5, evidence that would have been "vividly etched on the mind of the jury". The applicant submitted that the situation is tantamount to the jury hearing wrongfully admitted evidence.
I am not persuaded that this is a valid comparison. Although the evidence that the dog's penis had penetrated the complainant's vagina was no longer relevant to a remaining count, the evidence that the applicant was masturbating the dog was admissible, as part of the narrative with respect to the specific allegation in relation to count 4. The fact that the trial judge directed the jury that, in relation to count 4, "nothing to do with the dog Patch is relevant to that at all", [79] does not establish that the evidence was inadmissible. In any case, the issue that this Court has to address is whether a miscarriage of justice was occasioned. The question as to whether the evidence relating to Patch was or was not admissible after count 5 was no billed, does not necessarily assist in addressing that issue.
With respect to the contention that a miscarriage of justice was occasioned, and by reference to the key considerations summarised in Khazaal v R [2011] NSWCCA 129 ("Khazaal") (Hall J), the applicant argued that the nature of the evidence gave rise to the gravest prejudice. The evidence concerning count 5 would "have [been] left vividly etched on the mind of the jury": see also Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts") at 441.
The applicant submitted that the jury, having heard the evidence, would have viewed the applicant as a "sexual monster", giving rise to the real risk that they would have rejected his denials and simply accepted the uncorroborated accounts of the complainant.
Further, the applicant submitted that it was highly unlikely that judicial direction designed to overcome the apprehended impact of the evidence would have been effective, particularly in light of the fact there would have been difficultly in formulating a direction that did not refer specifically to the evidence, and by doing so, reinforce the prejudice: see Crofts at 440-441; Maric v R (1978) 20 ALR 513; (1978) 52 ALJR 631 at 635.

[15]

Consideration

There is some force in the submission that the jury should have been discharged after count 5 was no billed and in circumstances where only some of the evidence relating to the dog was to be relied on by the Crown to prove count 4. As it transpired, the Crown's only reference to the dog in closing address was to the evidence of the complainant: "She says that an argument started in the house, she was assaulted, she was dragged to the dog kennel." [81]
The Crown also referred to the evidence of DS in the following terms: "She gives evidence of nothing beyond that dragging, hearing her mother saying things to her father, hearing the dog chain move at certain times and that is all." [82]
By the stage of the Crown's closing address, little, if any, reliance was placed on the evidence elicited about the dog in support of count 4. The essential question, however, is whether the failure to discharge the jury once count 5 was no billed, and/or the refusal to sever counts 4 and 5, occasioned a miscarriage of justice.
Having refused the application to discharge, the trial judge directed the jury to consider each offence separately. The direction to consider the counts separately was repeated twice and the jury was directed to consider each count only in relation to the evidence which was given about the particular count. Count 4 remained on the indictment but the Crown did not rely upon the evidence of the applicant masturbating the dog during the act alleged in count 4. Count 5 had been discontinued and count 7 was the subject of a not guilty verdict by direction because the complainant gave evidence of penile-vaginal intercourse instead of digital penetration with the applicant's fingers. The trial judge summarised the evidence relied upon by the Crown in support of the allegation in each remaining count on the indictment. The trial judge also gave the jury a warning, and careful directions, in relation to the use of context evidence.
The Crown relied upon evidence that the applicant placed the complainant on the ground with her knees and forearms in contact with the gravel and rocks. The trial judge instructed the jury that it was the act of intercourse in relation to count 4 that the jury was to take into account, and it was very important that the jury did not take into account, in any way whatsoever, any evidence concerning the dog. Further, the trial judge directed as follows: "As Mr Brezniak said, that was a very horrible allegation but the allegation is not there, it has been removed. He has effectively - the Crown has decided not to continue proceedings with that matter at all. I said earlier in the summing-up that you have to not be prejudiced or look at the evidence as it is, and not have any sympathy or emotion sway your consideration. You must not, in relation to this most serious allegation, use it in any way to be prejudiced against the accused. Just put it completely out of your mind. That would be quite wrong." [83]
Shortly after this, the trial judge directed the jury again: "… I want to emphasise yet again the very serious and horrible allegation concerning the dog Patch. You must put any evidence about that completely out of your mind and do not in any way be prejudiced against [the applicant] that there was such an allegation made. Look at the evidence, all of the evidence because you are not even taking into account any evidence about the dog, but it has to be looked at without sympathy, without emotion and certainly without any prejudice towards the accused." [84]
Underpinning both grounds of appeal as particularised at [5], is the contention that the error, or errors, occasioned a miscarriage of justice. In Nudd v R [2006] HCA 9; (2006) 80 ALJR 614 at [7], Gleeson CJ (Gummow, Kirby, Hayne, Callinan and Heydon JJ agreeing) observed: "The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involved error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial."
As was observed by the Court in White v R [2022] NSWCCA 241 at [19], when approaching questions of miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act, Gageler J's observations in Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 ("Hofer") at [116] supply a valuable starting point. His Honour said: "In the application of the miscarriage of justice ground, there is no principled reason for treating "an error in strict law" differently from another error or irregularity in the conduct of a trial. The miscarriage of justice in a particular case might arise from a singular error or irregularity, or it might arise from a cumulation of errors or irregularities some or all of which might or might not be connected and some or all of which might or might not be capable of being characterised as errors of law. Whether or not some or all of them might be characterised as errors of law, the consideration required to be given to their individual or cumulative consequence remains the same. An inconsequential error, including an inconsequential error of law, is not a miscarriage." (footnotes omitted)
In Hofer, the High Court considered the distinction between a miscarriage of justice and the proviso. The irregularity in Hofer arose from the prosecution's prejudicial cross-examination of the accused. In AK v R [2022] NSWCCA 175, Price J referred to that distinction stating at [267]-[271]: [267] The plurality (Kiefel CJ, Keane and Gleeson JJ) which said at [41]: 'A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed. The larger and different question raised by the proviso, which is reserved to an appellate court, of whether there has notwithstanding that departure been no substantial miscarriage of justice, focuses upon whether the nature and effect of the error which has occurred prevents the appellate court from undertaking its assessment as to whether guilt has been proved to the requisite standard.' (Emphasis added; footnotes omitted.) [268] The plurality considered that the prejudice to the appellant was not addressed by the trial judge as it should have been. The plurality said at [47]: '… Absent such directions there was a real chance that the jury may have assumed that the reason for the omission was that the appellant had changed or more recently made up his story.' (Emphasis added; footnotes omitted.) [269] The plurality concluded that there had been a miscarriage of justice. [270] Gageler J observed at [115], [118] and [123]: '[115] The need for an appellate court to consider, and ordinarily be satisfied of, "a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial" in order to find a miscarriage of justice has routinely informed the analysis undertaken to establish whether or not there was a miscarriage of justice in subsequent cases. … [118] … What is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial. … [123] Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect", an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred.' (Emphasis added; footnotes omitted.) [271] Gordon J observed at [130]-[132]: '[130] The text of the provision reveals a fundamental difference between the two steps of first, deciding whether a ground of appeal is established and second, considering whether the proviso may (not must) be applied. One of the three kinds of grounds of appeal (verdict that is unreasonable or cannot be supported on the evidence; wrong decision of any question of law; and on any other ground whatsoever there has been a miscarriage of justice) will not be established if the mistake made at trial was one which could have had no effect on the outcome of the trial. That is, when considering whether a ground of appeal is established it is necessary and sufficient for the appellate court to conclude that the error might have made a difference. [131] By contract, when considering whether the proviso applies, the appellate court cannot apply the proviso unless it is persuaded that the admissible evidence at trial proved the accused's guilt beyond reasonable doubt. But that is a negative proposition. The appellate court cannot apply the proviso unless it is persuaded to that conclusion. Other considerations may show that the discretion which the proviso gives ("provided that the court may … dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred") should not be exercised (emphasis added). The proviso cannot be applied unless the appellate court is positively persuaded of the accused's guilt beyond reasonable doubt. And it is the Crown that must persuade the court to the requisite standard. [132] In applying the proviso, an appellate court "must itself decide whether a substantial miscarriage of justice has actually occurred". This is "an objective task not materially different from other appellate tasks" which "is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction". More particularly, "[t]he appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record" (emphasis added), the Crown proved beyond reasonable doubt that the appellant was guilty of the offence on which the jury returned its verdict of guilt.' (Emphasis added; footnotes omitted.)."
More recently, in BQ v R [2023] NSWCCA 34, this Court considered the question as to what constitutes a miscarriage of justice by reference to the observations by Simpson AJA (Hamill and Ierace JJ agreeing) in Sunders v R [2022] NSWCCA 273. After referring to Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, Hofer, and the commentary on those cases by this Court in AK, Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 and Zhou v R [2021] NSWCCA 278, Simpson AJA said: "[92] Both Beech-Jones CJ at CL and N Adams J have thus accepted, on the basis of the reasoning in Hofer, (including the reasoning of Gageler J) that the blanket rule that any departure, no matter how inconsequential, from rules of law, evidence or procedure, will constitute a miscarriage of justice for the purposes of the third limb of s 6(1) (and before resort to the proviso) is no longer applicable. To establish a miscarriage of justice for the purposes of the third limb of s 6(1), it is necessary that an appellant establish, not only error, but also that the error was prejudicial in the sense that it 'had the meaningful potential or tendency to have affected the result of the trial'. Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) had taken a similar approach in Zhou v R [2021] NSWCCA 278 at [22]. [93] I am content, like Beech-Jones CJ at CL and N Adams J, to proceed on the basis that, for a miscarriage of justice as contemplated by the third limb of s 6(1) of the Criminal Appeal Act, it is not sufficient to identify some inconsequential error of law, fact, evidence or procedure. It is necessary, also to establish that the error did, or might have had, a prejudicial effect on the accused's prospects of acquittal. That, I appreciate, is a departure from [18] of Weiss, but is the result of a faithful application of the reasons in Hofer."
I proceed on the basis that the error or irregularity will rise to the level of a miscarriage of justice where it is of a nature and degree that could realistically have affected the verdict, or verdicts, of guilt that were actually returned by the jury in the trial.
I am comfortably of the view that the verdicts demonstrate that the jury carefully and conscientiously considered the evidence and followed the directions that they were to consider each count separately. The contention that the jury was so prejudiced against the applicant, that they rejected his denials and simply blanketly accepted the evidence of the complainant, is not supported by the verdicts. Put another way, the applicant has failed to demonstrate that a miscarriage of justice was occasioned, either as a result of the refusal to sever counts 4 and 5 and/or as a result of the refusal to discharge the jury after count 5 was no billed.
I have come to that conclusion for the following reasons:
On count 2, the complainant gave evidence that the applicant had picked up the axe and hit the car door at a time when she was sitting in the passenger's side of the car. It may be inferred from the not guilty verdict that the jury had a doubt about whether the use of the axe was intended to assault the complainant. Contrary to the submissions put on behalf of the applicant, the jury carefully considered the evidence relating to count 2. The jury was not overwhelmed by the evidence relating to the dog, such as to prevent logical, rational and separate consideration of the counts.
Perhaps more starkly demonstrative of the jury's careful analysis of the evidence and the jury's capacity to follow instructions and directions, is the verdict of not guilty on count 4 (and not guilty to the statutory alternative to count 4). Count 4 was closely linked in time, location, and narrative, to the evidence the jury had heard in support of count 5. True it is, as the applicant contends, it may be inferred from the not guilty verdict that the jury was not satisfied beyond reasonable doubt that this assault occurred during the date range particularised on the indictment. However, far from supporting the applicant's contention that "there was a real risk that the jury might impermissibly use that evidence to reason that [the applicant] was a sexually depraved man who is more likely to have sexually abused his wife as alleged", [85] the not guilty verdict on count 4, supports the view that this Court can have confidence that the jury carefully considered each charge separately and any outrage that may have been experienced upon hearing the evidence about the dog, did not operate to prejudice the jury in its deliberations.
A further example of the way in which the jury carefully considered the evidence and abided by the directions designed to overcome any apprehended impact of the evidence relating to the dog, is to be found in the jury returning a verdict of guilty to the statutory alternative to count 9, as opposed to the aggravated form of sexual assault. The verdict of guilty to the statutory alternative demonstrates that the jury carefully considered the evidence of the complainant with particular attention to whether the Crown had established the circumstance of aggravation, namely the infliction of actual bodily harm.
The complainant gave evidence in support of count 8 that the applicant "used [two] dildos". He used one by threading the belt at the end, tying it around his stomach, and forcing the dildo inside her vagina. She said that he kept pushing in and that she started bleeding. The jury requested clarification of what this dildo was made of, and the complainant said that it was a purchased dildo that "was hard". [86] At some point, the complainant gave evidence that the applicant used another homemade dildo. [87]
After the first dildo was used, the complainant said that the applicant "pulled it out and spun me over". The complainant was then on her stomach when she felt something else inside her vagina which she described "was hard". [88] He moved the object up and down then pulled it out after a while. [89] The next morning she found the object, a beer bottle, at the end of the bed. [90]
It may be inferred that the jury was not satisfied beyond reasonable doubt that the use of the beer bottle (in relation to count 9) caused actual bodily harm in circumstances where they were satisfied to the requisite standard that it was the use of the dildo that caused actual bodily harm. This is not a case where the jury was so prejudiced by the evidence elicited in support of count 5 that they were incapable of considering each count separately or where they simply accepted, in a blanket fashion, the evidence of the complainant.
I accept the respondent's submission [91] that in undertaking an evaluation of this matter, it is necessary to consider the evidence in the context of the entirety of the trial, and not only the transcript of the evidence in relation to counts 4 and 5. The complainant's evidence on count 1 was corroborated by DS. [92] Evidence on count 6 was also supported by DS, [93] PS, [94] CT, [95] and medical records. [96] Although KS gave evidence denying that the assault in count 6 had occurred, her evidence was directly inconsistent with PS's evidence, and it was well open to the jury to accept PS's evidence and reject KS's evidence; in this regard, the jury was well placed to evaluate the credibility of the witnesses given the substantial cross-examinations that were conducted. Furthermore, the jury were entitled to have regard to the context evidence in the way it was explained to them in the summing up.
It was open to the jury to be satisfied beyond reasonable doubt of the counts on which the verdicts of guilty were returned. For the reasons set out above, this is a case where the jury clearly considered each count separately, applying reason and logic. I am not of the view that the applicant may have lost a chance which was fairly open to him of being acquitted of the counts of which he was convicted.
Accordingly, I would propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal dismissed.
WEINSTEIN J: I agree with Yehia J.

[16]

Endnotes

Tcpt, 24 February 2023, pp 7(39)-8(12).
Tcpt, 4 June 2021, p 75(42)-(47).
Ibid, p 76(31)-(41).
Ibid, p 77(6).
Ibid, p 87(20)-(24).
Ibid, pp 87(30)-88(50).
Ibid, p 93(24).
Ibid, p 93(40).
Ibid, p 96(25).
Tcpt, 16 June 2021, p 709(28).
Tcpt, 4 June 2021, p 111(41).
Ibid, p 111(45)-(46).
Ibid, p 117(47).
Ibid, p 118(13)-(14).
Ibid, p 119(47).
Ibid, p 120(19).
Ibid.
Ibid, p 120(9)-(12).
Tcpt, 7 June 2021, p 133(24).
Ibid, p 134(2).
Ibid, p 135(25)-(28).
Ibid, p 137(15)-(41).
Ibid, p 139(28).
Ibid, p 150(35).
Ibid, p 150(35)-(36).
Ibid, p 152(46)-(49).
Ibid, p 152(27)-(30).
Ibid.
Ibid, p 153(15).
Ibid, p 153(34).
Ibid, p 154(19).
Ibid, p 176(42).
Ibid, p 155(1)-(4).
Ibid, p 156(5)-(12).
Ibid, p 156(35)-(37).
Ibid, p 156(43).
Tcpt, 17 June 2021, p 900(10)-(17).
Ibid, p 900(40)-(48).
Tcpt, 18 June 2021, p 1019(43)-(45).
Ibid, p 1026(10)-(13).
Tcpt, 21 June 2021, p 1044(44)-(46).
Ibid, p 1049(40)-(43).
Ibid, p 1059(21)-(27).
Ibid, p 1064(5)-(11).
Ibid, p 1070(8)-(17).
Tcpt, 18 June 2021, p 1014(29-(30).
Tcpt, 1 June 2021, p 8(7)-(17).
Ibid, p 33(6)-(8).
Ibid, p 33(8)-(11).
Ibid, p 33(11)-(14).
Tcpt, 2 June 2021 p 2.
Tcpt, 2 June 2021, pp 6(48)-7(5).
Tcpt,7 June 2021, p 1-4.
Ibid, p 2.
Ibid, p 2.
Tcpt, 15 June 2021, p 698(6)-(14).
Tcpt, 16 June 2021 p 813(38)-(48).
Tcpt, 17 June 2021 p 827(26)-(34).
Ibid, p 843-844.
Ibid, p 871(24)-(25).
Ibid, p 871(27)-(39).
Ibid, pp 873(3)-874(5).
Ibid, p 869(28)-(43).
Tcpt, 2 June 2021, p 2-3.
Applicant's Written Submissions (AWS), 9 May 2022, at [107].
AWS at [108].
Tcpt, 2 June 2021, p 2.
Tcpt, 1 June 2021, p 24(14).
Tcpt, 2 June 2021, p 8(23)-(28).
Tcpt, 3 June 2021, pp 27(44)-28(32).
Tcpt, 4 June 2021, p 111(49).
Tcpt, 4 June 2021, pp 113(17)-114(11).
Ibid, pp 116(21)-118(14).
Tcpt, 16 June 2021, p 750(3)-(6).
Ibid, p 750(38)-(40).
Tcpt, 17 June 2021, p 827(26)-(34).
Ibid, p 866(3)-(17).
Ibid, p 869(6)-(20).
Tcpt, 23 June 2021, p 41.
Tcpt, 24 February 2023, pp 9(43)-10(42).
Tcpt, 22 June 2021, pp 1158(50)-1159(1).
Ibid, p 1159(28)-(30).
Tcpt, 23 June 2021, p 43.
Ibid, p 48.
AWS at [114].
Tcpt, 7 June 2021, p 150(45).
Ibid, p 152(16)-(19).
Ibid, p 153(34).
Ibid, p 154(18)-(30).
Ibid, p 154(29)-(31).
RWS at [128].
Tcpt, 9 June 2021, p 390.
Tcpt, 10 June 2021, p 469(31)-(45).
Tcpt, 11 June 2021, pp 559(48)-560(11).
Tcpt, 16 June 2021, p 709.
Exhibit G. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2023

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Legislation Cited (4)

Criminal Appeal Act 1912(NSW)

Crimes Act 1900(NSW)

Criminal Procedure Act 1986(NSW)

Children (Criminal Proceedings) Act 1987(NSW)

Cases Cited (30)

headnote [This headnote is not to be read as part of the judgment] On 4 June 2021, DS (the "applicant") was arraigned before Payne DCJ in the District Court at Tamworth on an indictment charging him with nine counts of physical and sexual assaults against his former partner (the "complainant"). The applicant pleaded not guilty to all counts. On 24 June 2021, the jury returned verdicts of guilty on counts 1, 3, 6, and 8 and the statutory alternative to count 9, and returned verdicts of not guilty on counts 2 and 4. The jury was directed to return a verdict of not guilty on count 7. A direction of no further proceedings (no bill) was made regarding count 5. On 30 September 2021, the applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months, with a non-parole period of 4 years and 9 months imprisonment, commencing on 24 June 2021 and expiring on 23 March 2026. There is no appeal in relation to the sentence. Count 1 related to the first specific incident when an argument between the applicant and the complainant arose. The applicant punched the complainant multiple times in the face and subsequently dragged her through their home and into their backyard. Count 2 was said to have involved the applicant hitting the passenger's side door of a Toyota LandCruiser utility vehicle with an axe, while the complainant was in the passenger's side seat. Count 3 took place on the same occasion as the allegation constituting count 2. The applicant grabbed the complainant and dragged her to the front of the LandCruiser. The applicant then started the engine while the complainant was approximately 2 metres away from the vehicle. Although two separate allegations, counts 4 and 5 were proximate in time and location. The Crown alleged that the applicant dragged the complainant to a dog kennel and had sexual intercourse with the complainant, without her consent. In the opening address, the Crown Prosecutor told the jury that the applicant then attempted to insert their dog's penis into the complainant's vagina. However, the complainant gave evidence to the effect that she was penetrated. The Crown applied to amend count 5 to reflect her evidence but the amendment was refused. The Crown then directed that no further proceedings would be taken in respect of count 5. An application to discharge the jury by reason of the prejudicial effect of the evidence adduced in support of count 5 was rejected. Count 6 involved the applicant dragging and assaulting the complainant while in the presence of children. Counts 7, 8 and 9 concerned three sexual assaults said to have been committed by the applicant against the complainant, which involved digital penetration, the use of a dildo, and the use of a beer bottle. The applicant sought leave to appeal against his conviction pursuant to ss 5(1) and 6(1) of the Criminal Appeal Act 1912 (NSW). The applicant relied on two grounds of appeal: 1. that the trial judge erred in refusing the application to sever counts 4 and 5 from the indictment prior to the commencement of the trial which led to a miscarriage of justice and an unfair trial; and 2. that the trial judge erred in refusing the application to discharge the jury once the Crown had elected to "no bill" count 5, which led to a miscarriage of justice and an unfair trial. The Court held (per Yehia J, Beech-Jones CJ at CL and Weinstein J agreeing) granting leave to appeal against the conviction and dismissing the appeal. As to ground 1, per Yehia J at [88] (Beech-Jones CJ at CL at [1] and Weinstein J at [132] agreeing): 1. The applicant did not demonstrate error on the part of the trial judge in refusing to sever counts 4 and 5 on the indictment. The trial judge, when considering the application for severance, observed that there is always a consideration of some prejudice in a trial where there are multiple counts in the indictment. In determining whether the applicant would be "prejudiced" or "embarrassed" in his defence by reason of the evidence constituting counts 4 and 5, the trial judge correctly identified that the other allegations on the indictment were of an extremely violent nature. Roach v R [2019] NSWCCA 160; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; Osman v R [2006] NSWCCA 196; Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5; De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1; DR v R [2019] NSWCCA 320; Castagna v R [2012] NSWCCA 181; R v BD (1997) 94 A Crim R 131; Allen v R [2020] NSWCCA 173; R v Verma (1987) 30 A Crim R 441, considered. As to ground 2, per Yehia J at [121], [130] (Beech-Jones CJ at CL at [1] and Weinstein J at [132] agreeing): 1. The applicant failed to demonstrate that a miscarriage of justice was occasioned, either as a result to sever counts 4 and 5 and/or as a result of the refusal to discharge the jury after count 5 was no billed. The verdicts demonstrated that the jury carefully and conscientiously considered the evidence and followed the directions that they were to consider each count separately. The contention that the jury was so prejudiced against the applicant that they rejected his denials and simply accepted the evidence of the complainant, was not supported by the verdicts. The applicant did not lose a chance which was fairly open to him of being acquitted of the counts of which he was convicted. Nudd v R [2006] HCA 9; (2006) 80 ALJR 614; White v R [2022] NSWCCA 241; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937; AK v R [2022] NSWCCA 175; BQ v R [2023] NSWCCA 34; Sunders v R [2022] NSWCCA 273, considered.

(1996) 186 CLR 427

(1986) 61 ALJR 1

(1996) 39 NSWLR 160

(2021) 95 ALJR 937

(1978) 20 ALR 513

(1978) 52 ALJR 631

(2006) 80 ALJR 614

(1984) 152 CLR 528

(2022) 107 NSWLR 239

(2005) 224 CLR 300

[2022] NSWCCA 175

[2020] NSWCCA 173