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Douglass v R

Douglass v R

Case [2020] NSWCCA 284 2 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Douglass v R [2020] NSWCCA 284
Hearing dates: 12 August 2020
Date of orders: 02 November 2020
Decision date: 02 November 2020
Before: Bathurst CJ at [1];
Johnson J at [6];
Rothman J at [46]
Decision:
(1)   Leave to appeal granted;
(2) Leave granted under Rule 4 of the Criminal Appeal Rules to argue the failure to leave manslaughter to the jury;
(3)   Ground 4 of the appeal against conviction allowed;
(4)   All other grounds of appeal are dismissed;
(5)   The conviction of the applicant on the charge that between 6 August 2016 and 12 August 2016, at Lithgow in the State of New South Wales, she did murder Christopher Whiteley is quashed;
(6)   The indictment presented on 19 November 2018 and/or the aforesaid charge of murder, is subject to a retrial in the Supreme Court of New South Wales;
(7)   The matter is listed in the Supreme Court Arraignment list on 6 November 2020.

Catchwords:
CRIME – appeal against conviction – applicant found guilty of murder – whether verdict unreasonable – whether error in directions on causation – whether trial judge erred in admitting admissions influenced by violence or oppression – whether trial judge erred in failing to leave an alternative verdict of manslaughter – appeal allowed on alternative verdict issue and otherwise dismissed – retrial ordered
CRIME – sentence appeal – various grounds not considered because conviction appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 23
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 54, 56, 59, 81, 84, 85, 90, 189

Cases Cited:
Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246
Brown v R [2006] NSWCCA 395
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51
Hoskins v The Queen [2014] NSWCCA 207
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Martinez v R; Tortell v R [2019] NSWCCA 153
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
Picken v R [2007] NSWCCA 319
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Blackman [2018] NSWSC 395
R v Downs (1985) 3 NSWLR 312
R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385
R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
R v Rasic [2009] NSWCCA 202
R v Spiteri-Ahern; R v Barber; R v Zraika (No 10) [2017] NSWSC 1380
R v Tarantino (No. 6) [2019] NSWSC 1174
Royall v The Queen (1991) 172 CLR 378; [1991]…

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 Douglass v R

Details

AGLC: Douglass v R [2020] NSWCCA 284
Case: [2020] NSWCCA 284
Decision Date: 02 November 2020

CaseChat Overview and Summary

In Douglass v R, the appellant was convicted of murder by a jury in the Supreme Court of Victoria. The central dispute in the appeal was whether the verdict was unreasonable and if there were errors in the trial judge's directions on causation, admission of statements influenced by violence or oppression, and failure to leave an alternative verdict of manslaughter to the jury. The High Court of Australia was tasked with reviewing these issues, among others.

The legal issues at the heart of this appeal revolved around the correctness of the trial judge's instructions to the jury regarding the concept of causation, particularly in the context of whether the jury could reasonably conclude that the accused's actions were the cause of death. Additionally, the court examined whether any admissions made by the appellant were improperly influenced by violence or oppression and, if so, whether this warranted a new trial. The court also scrutinised whether the trial judge should have left the option of an alternative verdict of manslaughter to the jury, given the circumstances of the case.

In its decision, the court found that the trial judge had erred in not leaving the alternative verdict of manslaughter to the jury, a decision which was deemed significant enough to warrant allowing the appeal on that basis. The court determined that the judge should have considered whether there was sufficient evidence to support a manslaughter verdict, particularly in light of the circumstances surrounding the death. However, the court found no error in the directions on causation or in the admission of statements, and it concluded that the conviction was not unreasonable. Consequently, the appeal was allowed on the issue of the alternative verdict, and a retrial was ordered. The other grounds of appeal were dismissed as the conviction appeal had been allowed.

Orders