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Court of Criminal Appeal 2 November 2020

Douglass v R

[2020] NSWCCA 284

Homicide
CRIME APPEAL AGAINST CONVICTION APPLICANT FOUND GUILTY OF MURDER WHETHER VERDICT UNREASONABLE RETRIAL ORDERED CRIME SENTENCE APPEAL

Citation: Douglass v R [2020] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 2 November 2020
Judges: Bathurst CJ, Johnson J, Rothman J

Background

The appellant was convicted of murder following a jury trial. The prosecution case included evidence of admissions alleged to have been made by the appellant, and the trial proceeded in part on a theory of extended joint criminal enterprise. The appellant sought leave to appeal against her conviction on four grounds.

The four grounds challenged the reasonableness of the verdict, the adequacy of the trial judge's directions on causation, the admission of evidence of the appellant's alleged admissions (said to have been influenced by violence or oppression), and the trial judge's failure to leave manslaughter as an alternative verdict for the jury's consideration.

The Court allowed the appeal on the fourth ground and dismissed the remaining grounds, resulting in the murder conviction being quashed and a retrial ordered. The sentence appeal was not considered given the outcome of the conviction appeal.

  • Whether the guilty verdict was unreasonable and unsupported by the evidence
  • Whether the trial judge's directions on the element of causation were erroneous or deficient
  • Whether the trial judge erred in admitting evidence of the appellant's admissions, which were alleged to have been obtained through violence or oppression contrary to s 84 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in failing to leave an alternative verdict of manslaughter to the jury under s 23 of the Crimes Act 1900 (NSW)

Decision

Ground 1 (Unreasonable verdict): The Court found this ground was not made out. Rothman J provided the reasons for rejecting the argument that the jury's verdict could not be supported by the evidence.

Ground 2 (Causation directions): The Court found the trial judge had not been asked to give further directions on causation. Because no request was made at trial, Criminal Appeal Rule 4 applied, requiring leave to rely on the ground. The Court acknowledged that orthodox causation directions, requiring the jury to be satisfied that the act of the accused was a "substantial or significant" cause of death, would have been appropriate. However, given the absence of any request at trial, leave was refused and the ground was not upheld.

Ground 3 (Admissions influenced by violence): No objection under s 84 of the Evidence Act 1995 had been taken at trial. The Court confirmed that s 84 objections should ordinarily be raised as a pretrial issue by way of voir dire under s 189 of the same Act. The Court noted there may well have been tactical reasons for trial counsel not raising the objection, including the risk that evidence given by the appellant on a voir dire could have been used as a prior inconsistent statement if the evidence was ruled admissible. In the absence of any objection, the trial judge was not obliged to consider whether s 84 required exclusion. This ground was not established.

Ground 4 (Failure to leave manslaughter): The Court upheld this ground. The principle established in Pemble v The Queen (1971) requires that where evidence at trial provides a viable basis for an alternative verdict, the trial judge must leave that alternative to the jury regardless of the defence's own approach at trial. The Court found that the evidence in this case did provide a sufficient factual basis for a verdict of manslaughter, and the failure to leave that alternative was an error that produced a miscarriage of justice. The conviction was quashed and a retrial ordered.

Orders Made

• Ground 4 of the appeal against conviction be allowed
• All other grounds of appeal be dismissed
• 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 be quashed
• The indictment presented on 19 November 2018 and/or the aforesaid charge of murder be subject to a retrial in the Supreme Court of New South Wales
• The matter is to be listed in the Supreme Court Arraignment list on 6 November 2020

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge must leave an alternative verdict of manslaughter to the jury whenever the evidence provides a viable basis for it, even if the defence does not seek that alternative: the obligation arises from the evidence, not from the parties' positions.
  • Under the Pemble principle, as affirmed in James v The Queen (2014) 253 CLR 475, the duty to leave alternative verdicts is independent of counsel's conduct or strategy at trial.
  • A failure to give complete directions on the elements of an offence does not automatically constitute a miscarriage of justice, particularly where no request for further directions was made at trial and Criminal Appeal Rule 4 applies.
  • Objections to the admissibility of admissions under s 84 of the Evidence Act 1995 (NSW), on the basis that the admissions were influenced by violence or oppression, should be raised before trial by way of voir dire under s 189; the absence of such an objection at trial significantly limits the prospect of raising the issue on appeal.
  • Conviction appeals succeed where a specific procedural error, here the omission of an alternative verdict, can be identified as producing a miscarriage of justice, even where other grounds including unreasonable verdict and evidentiary challenges are rejected.

Legislation and Cases Referenced

Legislation
- 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
- 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
- Swan v The Queen (2020) 94 ALJR 385; [2020] HCA 11