Douglass v The Queen [2012] HCATrans 184 - [2012] HCATrans 184

[2012] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A17 of 2012

B e t w e e n -
RAYMOND HOWARD LYLE DOUGLASS
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 AUGUST 2012, AT 10.00 AM

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the appellant. (instructed by Patsouris & Associates)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friends, MS A.F. CAIRNEY and MS J. LITSTER, for the respondent. (instructed by Director of Public Prosecutions (SA))

FRENCH CJ: Yes, Ms Shaw.

MS SHAW: May it please the Court, we have provided to the Court written submissions of our principal arguments and a written reply. In addition, the Court should have been provided with a three‑page list of propositions that we contend for. In addition, the Court should have a copy of the Evidence Act (SA), to which both the respondent and the appellant will refer.

By way of overview, your Honours, this is an appeal from the judgment of the Full Court of the Supreme Court of South Australia dismissing the appeal by the appellant in relation to his conviction for aggravated indecent assault upon his granddaughter, who was aged three years 11 months at the time of the alleged offence.

The two grounds of appeal are in the appeal book at page 542. Our primary submission, which covers grounds 1.1 and 1.2 in relation to the failure to give reasons in essence – our submission is that in a case where the accused gives sworn evidence denying the charge, in order to convict it is necessary that his evidence be rejected beyond reasonable doubt. It is our contention that in the present case the trial judge did not expressly reject the appellant’s evidence or, indeed, deal with it at all other than to say his demeanour did not assist the prosecution case.

There are two possibilities that are open as a result of that finding: firstly, that the learned trial judge did not reject the appellant’s evidence beyond reasonable doubt or, secondly, that the learned trial judge did reject the appellant’s evidence but did so without giving any reasons. If it is the second possibility, and the learned judge made it clear that the reason it was not demeanour, one is therefore left to wonder why was it rejected beyond reasonable doubt.

The Court of Criminal Appeal held that it was entitled to infer that the learned trial judge had rejected the appellant’s evidence beyond reasonable doubt and, indeed, also to infer what the learned trial judge’s reasoning process in doing so must have been. However, in our submission, in the absence of a finding by the learned trial judge that…

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.

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Details

Case: [2012] HCATrans 184
Decision Date

CaseChat Overview and Summary

The High Court of Australia, constituted by French CJ, Hayne, Crennan, Kiefel and Bell JJ, considered an application for special leave to appeal in the matter of *Douglass v The Queen*. The applicant, Douglass, sought to challenge his conviction and sentence.

The central legal issue before the High Court was whether the applicant's conviction was unsafe or unsatisfactory, particularly in light of alleged errors in the trial judge's directions to the jury concerning the applicant's admissions. The applicant contended that the jury should have been more explicitly directed on how to approach the evidence of his admissions, especially in relation to the elements of the offence.

The High Court, in refusing special leave to appeal, indicated that the grounds of appeal did not raise a question of law that ought to be granted special leave. The Court was not persuaded that there was a sufficient basis to interfere with the decision of the lower court, implying that the trial judge's directions, when viewed in their entirety, were adequate and that the conviction was not unsafe or unsatisfactory.

Orders