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Court of Criminal Appeal 18 June 2026

Douglas v R

[2026] NSWCCA 85

Domestic & family violence

Citation: Douglas v R [2026] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 18 June 2026
Judge(s): N Adams CJ at CL; Dhanji J; Roberts J

Background

The appellant (referred to throughout as "Mr Douglas") stood trial in the District Court before a jury on 29 counts of domestic violence offences against two former partners. The offences spanned roughly two decades. The jury returned guilty verdicts on 17 counts, and on 6 March 2025 Mr Douglas was sentenced to an aggregate term of 16 years' imprisonment with a non-parole period of 12 years.

Mr Douglas gave evidence at trial. During his cross-examination, the Crown Prosecutor suggested that aspects of his evidence had been recently invented, pointing to defence counsel's failure to put certain matters to one of the complainants during her cross-examination. Defence counsel did not object to this line of questioning.

The trial judge later described the questioning as "perfectly legitimate" and, while acknowledging that there could be various reasons why matters are not put to a witness, did not warn the jury against drawing an adverse inference about Mr Douglas's credibility from the omission. In his closing address, the Crown Prosecutor invited the jury to treat the failure to put those matters as evidence that Mr Douglas had fabricated them while in the witness box, relying on this to undermine his credit generally.

  • Whether a miscarriage of justice arose from the Crown Prosecutor's cross-examination suggesting that Mr Douglas had fabricated evidence because defence counsel had not put certain matters to a complainant.
  • Whether a miscarriage of justice arose from what the trial judge said, and failed to say, to the jury in response to that cross-examination.
  • Whether the statutory proviso applied, such that the convictions could be upheld despite any error.

Decision

Ground 1: The cross-examination suggesting recent fabrication

The Court applied the High Court's decision in Hofer v The Queen (2021) 274 CLR 351, which cautioned strongly against cross-examining an accused by reference to defence counsel's failure to put matters to a prosecution witness as a basis for suggesting recent invention. Such an approach assumes, without proper foundation, that the omission reflects a lack of instructions, and there are many other explanations for why a matter may not be put, including counsel's forensic judgment, misunderstanding of instructions, or a deliberate decision not to advance a particular line.

Evidence filed on appeal confirmed that Mr Douglas had in fact instructed his legal representatives about the matters at issue, meaning the underlying assumption of recent invention was factually incorrect. The Crown Prosecutor nonetheless used the questioning to undermine Mr Douglas's credit generally, not merely to address specific peripheral matters. The Court found that the cross-examination proceeded in precisely the manner cautioned against in Hofer and that ground 1 was made out.

Ground 2: The trial judge's directions

The trial judge not only failed to warn the jury against drawing an impermissible inference but actively described the questioning as "perfectly legitimate." The one direction touching on possible explanations for omissions from cross-examination arose in the context of a different complainant, RC, and was expressly limited to her testimony. The Court found this would have conveyed to the jury that, while no adverse inference was available regarding RC, such an inference was available in relation to KD. No curative direction was given in the summing up. The irregularity was not remedied, and ground 2 was also made out.

The proviso

The Crown did not seek to rely on the proviso in s 6 of the Criminal Appeal Act 1912 (NSW), which allows a conviction to stand despite error if no substantial miscarriage of justice has occurred. The Court agreed the proviso could not apply. Given the centrality of Mr Douglas's credit to the trial, it was not possible to conclude from the record that the errors had not caused a substantial miscarriage of justice.

The Court observed, with evident regret, that neither the Crown Prosecutor, defence counsel, nor the trial judge was familiar with the principles in Hofer. That shared unfamiliarity allowed the error to occur, go unchallenged, and remain uncorrected.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions quashed.
  • New trial ordered.
  • Matter stood over to the District Court Arraignment List on 16 June 2026 at 10:00am.

Key Takeaways

  • Cross-examining an accused by reference to defence counsel's failure to put matters to a prosecution witness, to suggest the accused invented that evidence, will generally miscarry unless there are clear indications of recent invention. Multiple explanations for the omission will ordinarily exist, and proceeding on a bare assumption of lack of instructions is impermissible.
  • Where such questioning has occurred, a trial judge must warn the jury against the assumption made by the cross-examiner, identify the range of possible explanations for the omission, and direct the jury as to what inferences are and are not available. Failing to do so, and characterising the questioning as "perfectly legitimate," will compound the error.
  • Evidence on appeal showing that the accused had actually provided the relevant instructions to defence counsel reinforced that the foundational assumption underpinning the questioning was wrong in this case.
  • The proviso under s 6 of the Criminal Appeal Act 1912 (NSW) was unavailable where the accused's credit was central to the trial and the impermissible reasoning was invited in the Crown's closing address without any curative direction.
  • The Court of Criminal Appeal noted that Hofer v The Queen was decided in 2021, and the principles it established were not applied by any of the participants at trial, a circumstance the Court described as "most regrettable."

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6
- Criminal Procedure Act 1986 (NSW), s 294CB
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (applied)
- Browne v Dunn (1893) 6 R 67
- R v Manunta (1989) 54 SASR 17
- Brawn v The King [2025] HCA 20; 99 ALJR 872
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- R v Birks (1990) 19 NSWLR 677