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Douglas v R

Douglas v R

Case [2005] NSWCCA 419 23 December 2005

Appeal

Aggravated & Exemplary Damages

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CITATION:
Douglas v R [2005] NSWCCA 419

HEARING DATE(S): 14 November 2005

JUDGMENT DATE:

23 December 2005

JUDGMENT OF:
Simpson J at 1; Adams J at 152; Hoeben J at 156

DECISION:
1. Appeal against convictions dismissed; 2. leave granted to appeal against each sentence; 3. each sentence appeal dismissed.

CATCHWORDS:
appeal against conviction - application to appeal against sentences - assault occasioning actual bodily harm - common assault - aggravated sexual assault - sexual assault - self-defence - whether self-defence ought to have been left to jury - lies - cross-examination of appellant - whether excessive delay in complaint

LEGISLATION CITED:

Crimes Act 1900 s59(1), s61, s61I, s293, s418, s419
Criminal Procedure Act (1986) s293, S294

CASES CITED:
Alford v Magee [1952] HCA 3; 85 CLR 437
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Pemble v The Queen [1971] HCA 20; 124 CLR 107
R v Tangye (1997) 92 A Crim R 545
Stevens v The Queen [2005] HCA 65, unreported, 21 October 2005
Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; 162 CLR 645
Zoneff v The Queen [2000] HCA 28; 200 CLR 234

PARTIES:
Jerry Douglas - Appellant
Crown - Respondent

FILE NUMBER(S):
CCA 2005/1170

COUNSEL:
D Woodburne - Crown
P Hamill SC - Appellant

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/1027

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

2005/1170

SIMPSON J
ADAMS J
HOEBEN J
Friday 23 December 2005

Jerry DOUGLAS v REGINA

Judgment

1 SIMPSON J: On 2 August 2004 the appellant was arraigned in the District Court on an indictment containing thirteen counts (of which two, Counts 8 and 10, were alternatives, to, respectively, Counts 7 and 9, and were subsequently withdrawn). A jury was empanelled and a trial proceeded over the next 12 days. The jury returned verdicts of guilty on five counts, not guilty on four counts, and were unable to agree in respect of two counts.

2 All five offences were alleged to have been committed against the same victim, KL. The charges, the dates on which the offences were alleged to have been committed, and the verdicts, are set out in the table below.

Count No	Nature of charge	Date of commission alleged in indictment	Verdict
1	Assault occasioning actual bodily harm	Between 11 November 1998 and 20 January 1999	Guilty
2	Assault occasioning actual bodily harm	Between 31 December 1998 and 1 July 2000	Not guilty
3	Assault occasioning actual bodily harm	15 June 2002	Not guilty
4	Assault occasioning actual bodily harm	Between 1 August 2002 and 1 October 2002	Guilty
5	Assault (common)	Between 31 October 2002 and 16 March 2003	Guilty
6	Assault (common)	3 March 2003	Not guilty
7	Aggravated sexual assault	5 March 2003	No verdict
8	Assault occasioning actual bodily harm (alternative to Count 7 – withdrawn)
9	Aggravated sexual assault	5 March 2003	No verdict
10	Assault occasioning actual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Douglas v R

Details

AGLC: Douglas v R [2005] NSWCCA 419
Case: [2005] NSWCCA 419
Decision Date: 23 December 2005

CaseChat Overview and Summary

The appellant, Douglas, was convicted by a jury of assault occasioning actual bodily harm, common assault, aggravated sexual assault and sexual assault. He applied to appeal against his convictions and sentences. The appeal against conviction was dismissed. However, the application to appeal against the sentences was allowed. The central legal issues revolved around whether self-defence should have been left to the jury, the veracity of the appellant's statements, the admissibility of cross-examination regarding the delay in reporting, and the overall fairness of the trial. The court found that the trial judge did not err in his direction on self-defence, as it was not open to the jury given the evidence. The appellant's account of events was found to be unreliable and inconsistent with other evidence, thus the jury's rejection of his self-defence plea was reasonable. The court held that the cross-examination about the delay in reporting was relevant to the appellant's credibility and was properly admitted. The court concluded that no miscarriage of justice had occurred, and the convictions were upheld, but the sentences were quashed and remitted for re-sentencing.

The court's reasoning centred on a detailed analysis of the evidence presented and the trial judge's directions to the jury. It was determined that the judge's exclusion of self-defence from the jury's consideration was correct, given the appellant's actions and the evidence presented. The court also found that the appellant's version of events was implausible and contradicted by other evidence, justifying the jury's decision. The delay in reporting was considered relevant to the appellant's credibility, and thus the cross-examination was permissible. The court emphasised that the trial was conducted fairly, with all relevant legal principles properly applied. The appeal against conviction was dismissed, but the appeal against sentence was allowed, and the matter was remitted for re-sentencing to ensure the sentences reflected the appropriate legal principles and the specific circumstances of the case.

Orders