Citation: R v Douglass (No 1) [2022] NSWSC 1287
Court: Supreme Court of New South Wales
Date: 26 September 2022
Judge: Ierace J
Background
The accused was charged with the murder of a 69-year-old man at his home in Lithgow on the evening of 7 August 2016. The Crown alleged that she and her then-partner (referred to throughout as "AS") entered the deceased's house armed with knives, wearing a balaclava and gloves, intending to steal money they believed was kept there. During the intrusion, the deceased confronted AS and a struggle ensued, in the course of which both AS and the accused stabbed him. He died from blood loss caused by multiple stab and incised wounds. His body was not discovered until 7 September 2016.
In the weeks following the killing, both the accused and AS made admissions to friends, who did not believe them. After the body was found and media coverage of the murder circulated, those friends approached police. Listening device and telephone intercept warrants were obtained, capturing further admissions. AS ultimately pleaded guilty to murder and gave evidence for the prosecution.
The accused pleaded not guilty. Her defence was that she was not present at the killing at all. She claimed AS told her about the murder six days after the fact, and that she had deliberately made false admissions to protect him, believing this would discourage people from reporting him to police. The defence relied in part on expert psychological evidence about the characteristics of domestic violence to support her credibility on this point.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused personally stabbed the deceased with intent to kill or cause really serious bodily harm, making her directly liable for murder under s 18(1)(a) of the Crimes Act 1900 (NSW)
- Alternatively, whether the accused was guilty of murder under the doctrine of extended joint criminal enterprise, on the basis that she foresaw the possibility AS might stab the deceased with intent to cause really serious harm
- Whether the alternative verdict of manslaughter was available if the extended joint criminal enterprise basis was the only basis established
- Whether the accused was acting in defence of another (AS) when she stabbed the deceased, such that her conduct was justified or excused
Decision
Ierace J convicted the accused of murder on the primary basis: that she personally and deliberately stabbed the deceased, thereby substantially contributing to his death with intent to cause really serious bodily harm or death. His Honour found the accused's admissions, many of which were not disputed, constituted prima facie evidence of guilt. The defence argument that those admissions were knowingly false was carefully considered but rejected. Witness and electronic evidence, including listening device and telephone intercept recordings, supported the reliability of the admissions as genuine.
The defence case turned substantially on the proposition that AS had, at various times before his arrest, referred to himself in the singular as the sole perpetrator and expressly stated the accused was not present. His Honour acknowledged this evidence but did not find it sufficient to raise a reasonable doubt about the accused's participation, given the volume and nature of her own admissions and the broader evidentiary picture.
On the question of defence of another, His Honour accepted that the accused had told others she stabbed the deceased because he was getting the better of AS in the fight. However, the deceased was not armed, and there was no evidence that AS attempted to end the confrontation by simply leaving the house. Ierace J inferred that at the time she intervened, the accused was aware of both those circumstances. The Crown therefore proved it was not necessary for her to stab the deceased in order to defend AS, and the defence of another failed.
Because His Honour was satisfied on the direct liability basis, the extended joint criminal enterprise doctrine did not require determination. No alternative verdict of manslaughter arose on the facts as found.
Orders Made
• The accused is found guilty on the count of murder in the indictment.
Key Takeaways
- A guilty verdict in a judge-alone trial requires the judge to set out the principles of law applied and the findings of fact relied upon, as mandated by s 133(2) of the Criminal Procedure Act 1986 (NSW). Ierace J's reasons address each element in detail to satisfy that requirement.
- Where an accused makes multiple admissions to participation in a killing, those admissions constitute prima facie evidence of guilt. A claim that admissions were deliberately falsified requires the court to carefully assess their reliability, but the onus of proof remains on the Crown throughout.
- Defence of another requires that the defensive act was necessary in the circumstances. Here, the deceased was unarmed and there was no evidence the co-accused attempted to withdraw from the confrontation, which meant the accused's intervention by stabbing could not be characterised as necessary.
- Under the extended joint criminal enterprise doctrine as stated in McAuliffe v The Queen (1995) 183 CLR 108, an accused may be liable for murder where they foresaw as a possibility that a co-offender would act with murderous intent during a joint criminal enterprise. This analysis was available to the court on the Crown's alternative case but did not need to be resolved once direct liability was established.
- Expert evidence about domestic violence characteristics was admitted as relevant to the assessment of the accused's credibility regarding her claimed reasons for making false admissions, illustrating that such evidence can bear on issues beyond physical harm in criminal proceedings.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW), ss 32, 108C
Cases
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Douglass v R [2020] NSWCCA 284