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7
Court of Criminal Appeal 23 December 2005

Douglas v R

[2005] NSWCCA 419

Sexual offencesAssault & violenceDomestic & family violence
APPEAL AGAINST CONVICTION APPLICATION TO APPEAL AGAINST SENTENCES ASSAULT OCCASIONING ACTUAL BODILY HARM COMMON ASSAULT AGGRAVATED SEXUAL ASSAULT SEXUAL ASSAULT

Citation: Douglas v R [2005] NSWCCA 419
Court: NSW Court of Criminal Appeal
Date: 23 December 2005
Judge(s): Simpson J, Adams J, Hoeben J

Background

The appellant was tried in the District Court on thirteen counts arising from a pattern of alleged violence and sexual assault against the same complainant, a woman with whom he had been in a domestic relationship. The relationship began in 1998 when both worked at a bar in Mt Druitt and later continued at a hotel in Windsor, where the appellant was the licensee. The alleged offending spanned several years and included repeated physical assaults and two counts of sexual assault.

After a twelve-day trial, the jury returned guilty verdicts on five counts: two of assault occasioning actual bodily harm, two of common assault, and two of sexual assault. The jury acquitted on four counts and could not agree on two aggravated sexual assault counts.

The appellant was sentenced to a total effective term of ten years' imprisonment, commencing August 2004, with a non-parole period of six years. He appealed against both the convictions and the severity of the sentences.

  • Whether the trial judge erred by failing to leave the issue of self-defence to the jury
  • Whether the trial judge's direction to the jury about the appellant's lies (a "Zoneff direction") was given in error or was inadequate
  • Whether the cross-examination of the appellant about prior conduct was impermissible
  • Whether the complainant's delay in reporting the offences was given sufficient weight at trial and on sentence
  • Whether the sentences imposed were manifestly excessive

Decision

Self-defence: The Court found that the self-defence issue was never properly raised on the evidence. The appellant's general denial that he had acted unlawfully, without a factual foundation suggesting the complainant initiated the violence, was insufficient to enliven a self-defence direction. Simpson J noted that the real contest at trial was whether the events the complainant described occurred at all, rather than whether the appellant responded to an attack. Adams J agreed, observing that if the jury doubted the complainant's account, they would simply have acquitted, making self-defence a non-issue. The failure of defence counsel at trial to seek any such direction reinforced that the issue was never a live one.

Lies direction: The Court considered whether the trial judge erred in directing the jury about lies told by the appellant, following the principles in Zoneff v The Queen. The appellant argued the direction was given in an impermissible context. The Court rejected this ground, finding the direction was appropriate given the evidence.

Cross-examination and delay in complaint: The Court rejected the ground that cross-examination of the appellant was conducted improperly. On the question of delay in complaint, the Court found the trial judge adequately addressed this matter. The relevant statutory provisions governing the use of delay in sexual assault proceedings were applied correctly.

Sentence appeals: Leave to appeal was granted on sentence, but all five sentence appeals were dismissed. The Court did not accept that the sentencing judge had erred in treating the offending as part of an ongoing pattern rather than as isolated incidents. The fact that the appellant's own evidence acknowledged other physical altercations with the complainant supported the sentencing approach taken.

Orders Made

  • Appeal against convictions dismissed
  • Leave granted to appeal against each sentence
  • Each sentence appeal dismissed

Key Takeaways

  • Self-defence is not automatically left to a jury merely because a defendant denies acting unlawfully. The issue must be genuinely raised on the evidence, either by the defendant's own testimony or by the circumstances disclosed in the evidence itself.
  • Where the only real factual contest is whether an assault occurred at all, self-defence does not become a live issue simply because the defendant makes a general claim of lawful conduct.
  • A failure by defence counsel to seek a self-defence direction at trial is a relevant consideration when assessing whether such a direction was required.
  • In sentencing for offending forming part of a pattern of domestic violence, a sentencing court may properly treat convictions as non-isolated even where the jury acquitted on some counts, particularly where the defendant's own evidence acknowledges other altercations.
  • The Court of Criminal Appeal confirmed that leave to appeal against sentence may be granted without disturbing the sentences, where no appellable error in the sentencing exercise is identified.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 59(1) (assault occasioning actual bodily harm), s 61 (common assault), s 61I (sexual assault), s 293, s 418, s 419
- Criminal Procedure Act 1986 (NSW): s 293, s 294

Cases:
- 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
- Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; 162 CLR 645
- Zoneff v The Queen [2000] HCA 28; 200 CLR 234