Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DS v R [2023] NSWCCA 151 Hearing dates: 24 February 2023 Date of orders: 23 June 2023 Decision date: 23 June 2023 Before: Beech-Jones CJ at CL at [1] Yehia J at [2] Weinstein J at [132] Decision: (1) Leave to appeal against conviction granted (2) Appeal dismissed Catchwords: CRIME — Appeals — Appeal against conviction — Whether the "depraved" nature of some of the counts was so prejudicial as to warrant separate trials — Whether the failure to discharge the jury after the bestiality count was no billed occasioned a miscarriage of justice — Whether the cumulative effect of the way in which the evidence supporting the bestiality count was elicited prevented the jury from impartially considering the evidence on each count separately — Where jury verdicts demonstrated a considered approach to the evidence — No miscarriage of justice Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5(1), 5(1)(b), 6(1) Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 61I, 61J(1), 344A(1) Criminal Procedure Act 1986 (NSW), ss 21(2), 21(2)(a), 29, s 29(1), 29(3) Cases Cited: AK v R [2022] NSWCCA 175 Allen v R [2020] NSWCCA 173 BQ v R [2023] NSWCCA 34 Castagna v R [2012] NSWCCA 181 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 DR v R [2019] NSWCCA 320 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 Hofer v The Queen [2021] HCA 36; (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; (2006) 80 ALJR 614 Osman v R [2006] NSWCCA 196 R v BD (1997) 94 A Crim R 131 R v Toohey (No 1) [2017] NSWSC 846 R v Verma (1987) 30 A Crim R 441 Roach v R [2019] NSWCCA 160 Sunders v R [2022] NSWCCA 273 Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5 Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 White v R [2022] NSWCCA 241 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: DS (Applicant) Rex (Respondent) Representation: Counsel: A Moutasallem (Applicant) A Bonnor (Respondent) Solicitors: Cole & Butler Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2019/00234634 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any matter which is likely to lead to the identification of the complainant and children in the proceedings Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 24 June 2021 Before: Payne DCJ File Number(s): 2019/00234634 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. JUDGMENT 1. BEECH-JONES CJ at CL: I agree with Yehia J and the orders her Honour proposes. Consistent with her Honour's analysis the refusal of the trial judge to sever the indictment or discharge the jury was neither an error or irregularity in the trial. While that conclusion does not preclude the applicant from establishing a miscarriage of justice, Yehia J's analysis of the trial and the outcome demonstrate that it did not occasion one. 2. YEHIA J: On 4 June 2021, DS (the "applicant") was arraigned before Payne DCJ (the "trial judge") in the District Court at Tamworth on an indictment charging him with nine counts of physical and sexual assaults against his partner, JS (the "complainant"). The applicant pleaded not guilty to all counts. 3. The counts, jury verdicts, and indicative sentences are set out in the following table: Count Offence Jury Verdict Indicative Sentence 1 Assault occasioning actual bodily harm, between 11/11/1992 and 13/11/1994, contrary to s 59(1) of the Crimes Act 1900 (NSW) Guilty 7 months imprisonment 2 Use of an offensive weapon (axe) with intent to commit an indictable offence (assault), between 01/01/1992 and 31/12/1998, contrary to s 33B(1)(a) of the Crimes Act Not Guilty N/A 3 Use of an offensive weapon (motor vehicle) with intent to commit an indictable offence (assault), between 01/01/1992 and 31/12/1998, contrary to s 33B(1)(a) of the Crimes Act Guilty 15 months imprisonment 4 Aggravated sexual intercourse without consent (maliciously inflict actual bodily harm), between 18/10/2002 and 30/06/2003, contrary to s 61J(1) of the Crimes Act Not Guilty N/A 5 Attempted sexual intercourse without consent, between 01/07/2002 and 30/06/2003, contrary to ss 61I and 344A(1) of the Crimes Act Direction of no further proceedings (no bill) N/A 6 Assault occasioning actual bodily harm, between 18/03/2011 and 19/03/2011, contrary to s 59(1) of the Crimes Act Guilty 15 months imprisonment 7 Sexual intercourse without consent in circumstances of aggravation (recklessly inflict actual bodily harm), between 01/10/2018 and 30/11/2018, contrary to s 61J(1) of the Crimes Act Not guilty by direction N/A 8 Sexual intercourse without consent in circumstances of aggravation (recklessly inflict actual bodily harm), between 01/10/2018 and 30/11/2018, contrary to s 61J(1) of the Crimes Act Guilty 6 years imprisonment, with a non-parole period of 3 years and 9 months imprisonment 9 Sexual intercourse without consent, between 1/10/2018 and 30/11/2018, contrary to s 61I of the Crimes Act (this offence is a statutory alternative to s 61J(1) of the Crimes Act) Guilty of the statutory alternative 4 years imprisonment, with a non-parole period of 2 years and 3 months imprisonment 1. 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. The Appeal 1. The applicant seeks leave to appeal against his conviction pursuant to ss 5(1) and 6(1) of the Criminal Appeal Act 1912 (NSW). The applicant relies on two grounds of appeal: 1. that the trial judge erred in refusing the application to sever the indictment prior to the commencement of the trial which led to a miscarriage of justice and an unfair trial (this is a reference to the application to sever counts 4 and 5); 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. 1. Although the grounds of appeal complain of separate asserted errors, the ultimate question for this Court is whether a miscarriage of justice was occasioned. The applicant's counsel conceded as much during oral argument. [1] 2. The grounds of appeal involve a question of mixed law and fact. The applicant, therefore, requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act. I have concluded that leave to appeal against conviction be granted and the appeal dismissed. What follows are my reasons. Background and Offences 1. 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. 2. 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] 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] 4. The incident the subject of count 1 relates to the first specific incident which occurred in the home at Gwiydir Street. The applicant's mother and brother were present at the premises at the time. The incident began with an argument between the complainant and the applicant in the lounge room. Present in the lounge room were the applicant's mother and her partner, and a number of children, including DS and PS. The complainant said that the applicant punched her in the face more than once, causing her to fall to the floor. He then grabbed her by the hair and dragged her through the kitchen, into the laundry, and down three steps that led to the backyard. The applicant continued to "hit and kick" the complainant, calling her "names" while she was being dragged. 5. The applicant's mother picked up a piece of firewood, which was outside the laundry door, and threatened to hit the applicant if he did not stop assaulting the complainant. The applicant took the piece of wood from his mother and continued hitting and kicking the complainant. 6. During this time, the applicant's brother attempted to intervene and help the complainant. These attempts were unsuccessful. The complainant tried to escape from the applicant by "crawling on the ground, covering [herself] as much as possible". [7] The complainant could not remember how the incident ended. Although she could not remember exactly when this incident occurred, she said it was sometime during the "summertime". [8] 7. DS gave evidence corroborating this count. She gave evidence of seeing the applicant punch the complainant and drag her outside while the applicant's mother was trying to stop him. She gave evidence of her grandmother grabbing a log. She also observed injuries to the complainant, including a cut above her left eye, a swollen right eye, and a cut on her cheek. 8. CT also gave evidence that corroborated this count. She remembered an incident when her grandmother picked up something and ran over to the applicant and hit him. She also remembered seeing the applicant punching the complainant. 9. The complainant gave evidence of another occasion at Gwydir Street when she was assaulted by the applicant (count 2). She said that she jumped into the passenger's side of the applicant's Toyota LandCruiser utility vehicle. The applicant picked up a wooden axe and hit the passenger's side door of the LandCruiser. The complainant gave evidence that she was worried about being killed and moved to the driver's seat. She then exited the vehicle through the driver's side door, in an attempt to escape. 10. The complainant also gave evidence about an incident the subject of count 3, which 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. He got into the driver's side seat and started the engine while the complainant was still on the ground, approximately 2 metres away from the vehicle. PS and CT ran to their mother and "leant" [9] over her, effectively putting themselves between the vehicle and the complainant. 11. CT gave evidence that corroborated the complainant's account. She said that she saw the applicant hitting the complainant. The complainant fell to the ground. The applicant then got into the ute and started the engine. She said that she and PS ran over to the complainant and laid on top of her. PS was screaming, telling the applicant to stop and "[d]on't run mum over". [10] 12. On 18 May 2000, the Gwydir Street residence was sold. On 7 June 2000, a property was purchased at Alabar Road, Yarraman. The applicant, the complainant, and DS moved to the property. 13. While at the Alabar Road residence, the family acquired a cattle dog by the name of Patch. Approximately 40 feet from the family house, there was a kennel where the dog would be tied up by a chain. 14. The complainant's evidence in relation to the incidents which were the subject of counts 4 and 5, involved the dog, Patch. The allegations are relevant to both grounds of appeal. Although two separate allegations, they are proximate in time and location. 15. The incident commenced with an argument between the applicant and the complainant in the house. The applicant started punching the complainant and eventually dragged her to the dog kennel by the hair and shirt. 16. The complainant gave evidence that at the dog kennel, the applicant began "masturbating Patch". [11] At that time, the complainant was on the ground, with her face down, her arms out in front, and her knees on the ground. 17. The complainant's evidence, specifically relevant to count 4, was that the applicant started having sexual intercourse with her, without her consent, during which time, "he'd stop, and then he'd pull the dog off". [12] 18. The incident the subject of count 5 (the bestiality count) related to the applicant first attempting to insert the dog's penis into the complainant's vagina, then penetrating the complainant's vagina with the dog's penis. The complainant stated that she felt Patch's dick was inside her. [13] The Crown opened its case to the jury on the basis that the applicant only attempted to have sexual intercourse with her using the dog. The complainant's evidence-in-chief, however, was that the dog's penis penetrated her vagina. 19. It was based on this evidence that the Crown sought to bring an ex officio count to reflect the actual penetration. That application was refused and a direction of no further proceedings on count 5 was made. Ground 2 complains that the trial judge erred in refusing to discharge the jury once the Crown had elected to no bill count 5 and that such error occasioned a miscarriage of justice. 20. The complainant gave evidence that this incident with Patch went on for half an hour to an hour. When the applicant had "finished", [14] he made his way back to the house. The complainant gave evidence that as a result of the incident, she sustained an injury to her leg, "gravel rash", [15] bruising on her face and legs, "black eyes" [16] and "busted lips". [17] She said the bruises were a result of the applicant's fist and from being dragged to the dog kennel from the house. [18] 21. DS gave evidence about this incident. She heard yelling and screaming from her parents. She gave evidence of seeing the applicant dragging the complainant across the gravel by the hair and hearing Patch barking. 22. The complainant gave evidence of a further specific incident of physical violence perpetrated against her by the applicant, occurring in about 2011 (count 6). The applicant entered the "hut" [19] where she had gone to hide. The applicant dragged her out and assaulted her in front of KS and her children. The applicant punched the complainant and dragged her by the hair and shirt and started to kick her with his boots on. 23. The complainant was crying and "singing" [20] out for help. The applicant then told KS to retrieve the LandCruiser. KS complied, parking the LandCruiser in the driveway. The applicant picked up the complainant and threw her headfirst into the passenger's side footwell. He continued to kick the complainant while she was in that position. The complainant lost consciousness. The applicant drove off with the complainant in the vehicle. 24. The complainant gave evidence that she sustained multiple injuries as a result of this assault, including black eyes and a swollen face. She could not lift her left arm because it hurt when she breathed, and "there wasn't a part of [her] body that wasn't black and blue". [21] 25. PS gave evidence in relation to this count. She received a call from her sister, KS, and then called "000" emergency services. She called her sisters, CT and DS, who were living in Bendigo. She gave evidence of attending a motel in Moree and finding her mother bruised and bleeding. 26. DS also gave evidence relevant to this count. DS was in Bendigo when she received a call from her sister, PS, who was concerned about not being able to find the complainant. DS eventually found the complainant at the Alabar Road property. She was bloodied and bruised. DS took her mother to a motel in Moree before taking her to Bendigo. The complainant told DS that the applicant had hit her repeatedly. DS then took the complainant to a doctor in Bendigo where she received medical attention. She did not disclose that it was the applicant who had assaulted her. 27. CT also gave evidence that corroborated this count. She was with DS when they found the complainant at the Alabar Road property. The complainant's face was bleeding and swollen. 28. On 22 March 2011, the complainant was examined by a doctor at Bendigo Health. [22] Medical records confirm that the complainant presented with bruises on the left shoulder, right axillar, left inner thigh and right buttock. She did not tell the doctor that she was assaulted by the applicant because she was frightened. She returned to Moree because she was scared the applicant would hurt either her or her children. 29. Counts 7, 8 and 9 concerned three sexual assaults committed on the one day in October or November 2018, involving digital penetration (count 7); a dildo (count 8); and a beer bottle (count 9). The Crown case was that the three sexual assaults occurred in the order in which they were charged on the indictment. 30. The jury was directed to return a verdict of not guilty on count 7 after the complainant gave evidence of penile-vaginal penetration rather than digital penetration, which was the act particularised in relation to count 7. No complaint is made about the directed verdict, and it is not necessary to deal with this count in any further detail. 31. Relevantly, the complainant gave evidence that on this occasion, she was in the shower when the applicant grabbed her by the hair and dragged her into the bedroom. She gave evidence that the applicant said words to the effect: "[g]et your fucking clothes off you cunt". [23] The complainant and the applicant then took their clothes off. In the last drawer beside the bed, the applicant retrieved a 12-inch dildo. [24] The complainant gave evidence that it was "that fat I couldn't get my hand around the dildo". [25] The applicant had previously made a strap to tie around his stomach in order to use the dildos. While the complainant was on the bed lying on her back, the applicant forced the dildo into the complainant's vagina. The complainant gave evidence that she was in pain, crying, and that she was bleeding. [26] The applicant also used a "homemade dildo" [27] which was made of "silastic". [28] 32. The complainant asked the applicant to stop, and the applicant responded, "[s]hut your mouth, you slut. You like it all". [29] While the complainant was on her stomach, she felt something else in her vagina that "didn't feel like a dildo and didn't feel like [the applicant's] own penis". [30] The applicant moved the object "up and down", [31] while it was inside the complainant's vagina. The complainant was in pain. The applicant then pulled the object out of the complainant's vagina. The complainant didn't find the object which was used until the following morning. She described the bottle as a XXXX Gold Stubby beer bottle. [32] 33. Afterwards, the applicant packed away the dildos and went to sleep. The complainant went to the toilet. She was bleeding from her vagina and was in "too much pain to get in and out of the shower". [33] That night, the complainant slept on the lounge. The next morning, the complainant changed the bedsheets as they had blood all over them. [34] 34. On a night in December 2018, the complainant left the property with three of her grandchildren and DS's two children. [35] The complainant gave evidence that this was when her relationship with the applicant ended. [36] 35. The applicant gave evidence at trial. In relation to count 1, the applicant denied assaulting the complainant in the way that had been alleged. Instead, he gave an account of being pushed by the complainant and knocked down the set of steps. The applicant denied the allegations the subject of counts 2, 3, and 4. 36. The applicant gave evidence that on the occasion that was the subject of count 6, he found the complainant in the bath with his sister's de facto partner, Robert Scott. [37] He gave evidence that he assaulted Mr Scott, but denied assaulting the complainant as alleged. [38] The applicant also denied the allegations the subject of counts 8 and 9. 37. Mr Kevin Gordon O'Neill was called to give evidence in the trial on 18 June 2021. He gave evidence that he was a friend of the applicant; that he would visit the home almost daily; and that he had frequent contact with the complainant. Mr O'Neill gave evidence that he never heard the complainant state that the applicant had been violent towards her. 38. JS, the applicant's brother, gave evidence that he had a close relationship with the complainant. He gave evidence that she had never complained to him about the applicant being violent towards her. He had never noticed any bruises or injuries on the complainant. 39. Michael Evans was a friend of the applicant. He gave evidence that the complainant did not complain to him that the applicant had been violent towards her, nor had he ever noticed any injuries to the complainant. [39] Doug Shepherd, [40] Dawn Blanch, [41] Peter O'Neill, [42] Wayne Marchant, [43] Douglas O'Hara, [44] Jason Stacey, [45] were called in the defence case, and gave evidence to a similar effect. 40. Lenice Muggleton worked at Muggleton Cranes. He gave evidence that he located a business record relating to an entry on 29 March 2004 which stated: "8am, [S], 30 tonne and 25 tonne crane. Lift house sections into position at Yarraman". [46] This evidence was relevant to when it was that the house was moved to the Alabar Road property. Overview of the Application to Sever Counts 4 and 5 and the Multiple Applications to Discharge the Jury The Severance Application and Tendency Notices on 2 June 2021 1. 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] 2. 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] 3. 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] 4. 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] 1. 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. The Severance Application on 7 June 2021 1. 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. 2. 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. 3. 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] The Application to Discharge the Jury on 15 June 2021 1. The applicant made another application to discharge the jury on 15 June 2021. By that stage of the trial, three witnesses had given evidence: the complainant; DS; and PS. The grounds of the application were that answers given by the witnesses indicated that they "loathed" [54] the applicant, therefore they gave answers that were "prejudicial". [55] The application was refused. 2. No complaint is made with respect to the way in which the trial judge dealt with this application. The Decision to Discontinue Count 5 1. 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] 2. 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] 3. 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] 4. 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] 1. 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] The Application to Discharge the Jury made on 17 June 2021 1. On 17 June 2021, trial counsel initially indicated, and then proceeded to make an application to discharge the jury on the grounds that the jury, having heard evidence in support of count 5, would be so prejudiced against the accused as to make a fair trial impossible. 2. The trial judge observed that on one view, the jury could still take into account the evidence as contextual evidence. The application was refused although the trial judge requested the Crown to specify the evidence involving the dog which was relied upon in support of count 4. The Crown Prosecutor did not submit that the evidence regarding the applicant masturbating the dog was essential to an element of the charge but submitted that it was part of the narrative. [63] 3. The trial continued. On 24 June 2021, the jury returned verdicts of guilty on counts 1, 3, 6, and 8, and the statutory alternative to count 9. The jury returned verdicts of not guilty on counts 2 and 4. Ground 1 – The Trial Judge Erred in Refusing the Application to Sever the Indictment Prior to the Commencement of the Trial which led to a Miscarriage of Justice and an Unfair Trial 1. There is a degree of overlap between grounds 1 and 2. The applicant submitted that the resolution of ground 1 would not depend upon an erroneous exercise of the trial judge's discretion but, rather, the question of whether the course of the trial had constituted a miscarriage of justice. 2. Having, however, raised the complaint that the trial judge erred in refusing the application to sever counts 4 and 5, it is, in my view, necessary to address that issue. 3. The trial judge, having refused the Crown's application to rely upon the evidence of each count (and uncharged acts) as tendency evidence, reached a view that the evidence alleging physical and sexual violence (or at least some of it) was admissible as context evidence. In refusing the application to sever counts 4 and 5, the trial judge dealt with the contention that the relevant evidence was so unusually depraved in nature that there was a real risk that the jury would be unable to reason objectively and rationally: "In my view, there is always a consideration of some prejudice in any trial where there is a number of counts in the indictment. There are other offences of a violent type, and even though this is of a particular character, in my view, the accused will not be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment. The offences arise out of the same set of circumstances, occurring in a relationship that extended for some 42 years. They may not be of the same or similar character, but the whole of the behaviour alleged by the Crown is certainly unpleasant, of a violent and humiliating character, and accordingly, the notice of motion is refused, and the trial will proceed with all of the distinct counts in the indictment." [64] Applicant's Submissions 1. 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] 2. 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. 3. 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. 4. 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. 5. 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." Respondent's Submissions 1. The respondent submitted that it was open to the trial judge to dismiss the applicant's application to sever counts 4 and 5, and no error of law occurred in the trial judge's decision to do so. 2. The application was brought on the grounds of prejudice to the applicant, which is the threshold prescribed in s 21(2)(a) of the Criminal Procedure Act 1986 (NSW). The trial judge formed an opinion that the applicant would not be prejudiced in his defence. 3. The applicant's submission that counts 4 and 5 would have been easily severable is said to misdirect focus away from the consequences of joinder for an accused, and the impact which joinder would be likely to have on his or her ability to obtain a fair trial. As to the efficacy of directions, in view of discrete instances being the subject of charges or groups of charges, and referable to particular periods in the course of the relationship, each carrying distinct but related features of violence, there was no reason to consider that in the applicant's case, reliance could not be placed on the capability, integrity and sense of duty of the jurors. Consideration 1. 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. 1. 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. 1. 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. 2. 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. 1. 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). 2. 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." 1. 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. 2. The principles applicable to the exercise of discretion to sever one or more counts and order separate trials can be summarised as follows: 3. 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]. 4. 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]. 5. 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. 6. 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. 7. 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. 8. 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] 9. 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. 10. 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.'" 1. 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. 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 1. 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. 2. 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] 1. 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] 1. 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] 1. 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. 2. 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] 1. 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. 2. 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] Applicant's Submissions 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. Respondent's Submissions 1. The respondent submitted that the trial judge did not err in rejecting the application by defence counsel to discharge the jury, and no miscarriage of justice resulted. 2. In addressing the criticism that the trial judge failed to afford procedural fairness and give adequate reasons, the respondent pointed to the time and attention that had been directed earlier in the trial to submissions relating to the prejudicial nature of the evidence the subject of counts 4 and 5, and to reviewing recent authority containing the principles applicable to the discharge of the jury. The respondent contended that the trial judge was well placed to efficiently re-evaluate considerations relevant to the fairness of the trial, and after a number of discharge and severance applications in relation to counts 4 and 5, well appreciated the significance of aspects of evidence following the discontinuance of count 5. 3. Although the applicant's written submissions complain of an error on the part of the trial judge in failing to provide adequate reasons for refusing this discharge application, once again, the essential issue is whether a miscarriage of justice was occasioned. The applicant conceded that ultimately the important issue is whether or not there was a miscarriage of justice. [80] Consideration 1. 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] 1. 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] 1. 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. 2. 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. 3. 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] 1. 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] 1. 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." 1. 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) 1. 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.)." 1. 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." 1. 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. 2. 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. 3. I have come to that conclusion for the following reasons: 4. 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. 5. 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. 6. 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. 7. 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] 8. 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] 9. 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. 10. 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. 11. 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. 12. Accordingly, I would propose the following orders: 1. Leave to appeal against conviction granted. 2. Appeal dismissed. 1. WEINSTEIN J: I agree with Yehia J. ********** Endnotes 1. Tcpt, 24 February 2023, pp 7(39)-8(12). 2. Tcpt, 4 June 2021, p 75(42)-(47). 3. Ibid, p 76(31)-(41). 4. Ibid, p 77(6). 5. Ibid, p 87(20)-(24). 6. Ibid, pp 87(30)-88(50). 7. Ibid, p 93(24). 8. Ibid, p 93(40). 9. Ibid, p 96(25). 10. Tcpt, 16 June 2021, p 709(28). 11. Tcpt, 4 June 2021, p 111(41). 12. Ibid, p 111(45)-(46). 13. Ibid, p 117(47). 14. Ibid, p 118(13)-(14). 15. Ibid, p 119(47). 16. Ibid, p 120(19). 17. Ibid. 18. Ibid, p 120(9)-(12). 19. Tcpt, 7 June 2021, p 133(24). 20. Ibid, p 134(2). 21. Ibid, p 135(25)-(28). 22. Ibid, p 137(15)-(41). 23. Ibid, p 139(28). 24. Ibid, p 150(35). 25. Ibid, p 150(35)-(36). 26. Ibid, p 152(46)-(49). 27. Ibid, p 152(27)-(30). 28. Ibid. 29. Ibid, p 153(15). 30. Ibid, p 153(34). 31. Ibid, p 154(19). 32. Ibid, p 176(42). 33. Ibid, p 155(1)-(4). 34. Ibid, p 156(5)-(12). 35. Ibid, p 156(35)-(37). 36. Ibid, p 156(43). 37. Tcpt, 17 June 2021, p 900(10)-(17). 38. Ibid, p 900(40)-(48). 39. Tcpt, 18 June 2021, p 1019(43)-(45). 40. Ibid, p 1026(10)-(13). 41. Tcpt, 21 June 2021, p 1044(44)-(46). 42. Ibid, p 1049(40)-(43). 43. Ibid, p 1059(21)-(27). 44. Ibid, p 1064(5)-(11). 45. Ibid, p 1070(8)-(17). 46. Tcpt, 18 June 2021, p 1014(29-(30). 47. Tcpt, 1 June 2021, p 8(7)-(17). 48. Ibid, p 33(6)-(8). 49. Ibid, p 33(8)-(11). 50. Ibid, p 33(11)-(14). 51. Tcpt, 2 June 2021 p 2. 52. Tcpt, 2 June 2021, pp 6(48)-7(5). 53. Tcpt,7 June 2021, p 1-4. 54. Ibid, p 2. 55. Ibid, p 2. 56. Tcpt, 15 June 2021, p 698(6)-(14). 57. Tcpt, 16 June 2021 p 813(38)-(48). 58. Tcpt, 17 June 2021 p 827(26)-(34). 59. Ibid, p 843-844. 60. Ibid, p 871(24)-(25). 61. Ibid, p 871(27)-(39). 62. Ibid, pp 873(3)-874(5). 63. Ibid, p 869(28)-(43). 64. Tcpt, 2 June 2021, p 2-3. 65. Applicant's Written Submissions (AWS), 9 May 2022, at [107]. 66. AWS at [108]. 67. Tcpt, 2 June 2021, p 2. 68. Tcpt, 1 June 2021, p 24(14). 69. Tcpt, 2 June 2021, p 8(23)-(28). 70. Tcpt, 3 June 2021, pp 27(44)-28(32). 71. Tcpt, 4 June 2021, p 111(49). 72. Tcpt, 4 June 2021, pp 113(17)-114(11). 73. Ibid, pp 116(21)-118(14). 74. Tcpt, 16 June 2021, p 750(3)-(6). 75. Ibid, p 750(38)-(40). 76. Tcpt, 17 June 2021, p 827(26)-(34). 77. Ibid, p 866(3)-(17). 78. Ibid, p 869(6)-(20). 79. Tcpt, 23 June 2021, p 41. 80. Tcpt, 24 February 2023, pp 9(43)-10(42). 81. Tcpt, 22 June 2021, pp 1158(50)-1159(1). 82. Ibid, p 1159(28)-(30). 83. Tcpt, 23 June 2021, p 43. 84. Ibid, p 48. 85. AWS at [114]. 86. Tcpt, 7 June 2021, p 150(45). 87. Ibid, p 152(16)-(19). 88. Ibid, p 153(34). 89. Ibid, p 154(18)-(30). 90. Ibid, p 154(29)-(31). 91. RWS at [128]. 92. Tcpt, 9 June 2021, p 390. 93. Tcpt, 10 June 2021, p 469(31)-(45). 94. Tcpt, 11 June 2021, pp 559(48)-560(11). 95. Tcpt, 16 June 2021, p 709. 96. 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