Burgoyne v The King

Case [2024] SASCA 143

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BURGOYNE v THE KING

[2024] SASCA 143

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and
the Honourable Justice S Doyle)


12 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

This was an application for permission to appeal, and an appeal, against a conviction on one count of having unlawful sexual intercourse with a person under the age of 17 years.

Following a trial by jury in the District Court, the appellant was found guilty of, and convicted on, one count of having unlawful sexual intercourse with a person under the age of 17 years, namely, W. The appellant was acquitted of a second count of unlawful sexual intercourse said to have been committed shortly after the first count. By the time of the appellant’s trial, W had died, such that the only direct evidence of the charged acts were certain video files said to depict the appellant engaging in the offending conduct with W. Those video files were, on the prosecution’s case, extracted from W’s smartphone, following its confiscation by police for investigation into unrelated offending.

At trial, the audiovisual record of the interview during which W’s smartphone was confiscated was admitted into evidence. That record depicted both W’s physical control of the smartphone during the interview and her consequential distress at its confiscation by investigating officers. It also recorded W’s answers to certain questions, including her name and date of birth, which were relied upon by the prosecution to establish that the child depicted was, in fact, W. Also admitted into evidence was the testimony of a police witness, Brevet Sergeant Johnson, regarding the investigation of the appellant’s criminal offending. During the course of his examination-in-chief, Brevet Sergeant Johnson testified that he had arranged for the appellant to be photographed after comparing the appearance of the male depicted in the video files with photographs of the appellant on SAPOL’s Shield system. No objection was taken to the question eliciting that response, and no consequential direction was sought regarding the answer from the trial judge.

On appeal, the appellant contended that, inter alia: the audiovisual record of the interview of W had been improperly admitted pursuant to s 34KA of the Evidence Act 1929 (SA); the trial judge had erroneously failed to direct the jury of the dangers posed by the video files, in circumstances where the appellant had supposedly lost his procedural right to cross-examine W; and the evidence elicited from Brevet Sergeant Johnson was irrelevant and in the nature of inadmissible opinion…

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AGLC
Burgoyne v The King [2024] SASCA 143
Case
[2024] SASCA 143
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Mr Burgoyne against his conviction. The central dispute revolved around the admissibility and impact of certain opinion evidence provided by Brevet Sergeant Johnson, which the appellant argued led to a miscarriage of justice. The appeal was heard by the Court of Appeal of the Supreme Court of South Australia.

The legal issues before the court included whether the admission of Brevet Sergeant Johnson's opinion evidence, which identified Mr Burgoyne in video footage, was improper and constituted a miscarriage of justice. Specifically, the court had to consider whether the trial judge erred by failing to direct the jury to disregard this evidence, particularly given that the opinion may have been influenced by hearsay from another officer. The court also considered whether the appellant's trial counsel's failure to object to the evidence or seek specific directions from the judge impacted the assessment of a miscarriage of justice.

The majority of the court, led by Kourakis CJ, found that while the admission of Brevet Sergeant Johnson's evidence might have been questionable, it did not amount to a substantial miscarriage of justice. The court reasoned that juries must base their verdicts on the evidence presented and should not speculate on what evidence might have been available. Lovell JA, however, dissented on one ground, finding that the trial judge's directions regarding positive identification were inadequate and did cause a miscarriage of justice, leading him to favour allowing the appeal and ordering a retrial.

Ultimately, the majority dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The death of W has not been shown to have caused Mr Burgoyne any forensic unfairness. The Judge could not logically have told the jury that Mr Burgoyne was disadvantaged by not being able to cross-examine a witness who could not be called by the prosecution. Nor was there any basis on which he could properly have directed the jury to consider that, but for her early death, W might have been given evidence exculpating Mr Burgoyne. Juries must be directed to return a verdict on the evidence before them. It is wrong to ask a jury to speculate about all of the evidence which might have been put before them but was not.[5][5] See, eg, Dyers v The Queen (2002) 210 CLR 285, 291 [6], 293 [13] (Gaudron and Hayne JJ). Ground 3 – identification direction and opinion evidence I set out below that part of Brevet Sergeant Johnson’s testimony in which his opinion that Mr Burgoyne was depicted in the video was given:ASo obviously from just initially reviewing the device and those videos it became apparent to me that [W] had engaged in what I considered USI and therefore trying to seek to establish the identify of said persons involved.QWhen you say USI are you saying that you suspected the offence of unlawful sexual intercourse at that time.AYes, that’s correct.QDid you form a suspicion in relation to who might be the accused in this matter.AYes I did.QWhat was that based on.AHaving had my colleague Detective Brevet Sergeant Wallwork review the footage, and having viewed the footage obviously myself, I was able to utilise some search procedures on the Shield systems and in conjunction with conversations I had with Brevet Sergeant Wallwork was able to deduce that Mr Burgoyne was considered a person of interest in relation to said offending.HIS HONOURQWhich Mr Burgoyne.ASorry your Honour, Mr Jason Byron Burgoyne.XNQIn the course of reviewing the footage, did you notice any particular features about the males that are featured within the video.AYes. So from video 1 it showed clearly the faces of two males involved. It also showed the surrounds of the bedroom and the gentleman on the left-hand side of the frame in the video clearly had a bent middle right finger that was clearly visible at the time as well.QWith reference to exhibit marked P5, is that the male we see wearing a hat.AYes, that’s correct.QWhat particular features of that, what appears to be right-hand did observe.QWhilst holding the phone, it appears as though the right middle finger is bent back in towards the palm whilst the other fingers are relatively outstretched.QI’ll now move to video 2 that we’ve just watched. Was there anything featured in that particular video that you investigated in order to determine who your suspect may have been in this case.ASo during video 2, the camera is largely in a still position to begin with, however the camera pans to its right and only in a freeze frame picks up the forearms of who I believe to be the male involved. And in freezing that image, I was able to identify some tattoos that were on the lower left and upper left forearm and the upper left outer side of the arm.…MS PARK:Your Honour, I was at a point where, if your Honour pleases, that we would pay that short clip again, after having had the witness identify the particular positioning of the tattoos. I’ll just play that file now. That is the file ending at 721.VIDEO SHOWNVIDEO CONCLUDEDXNQAs a result of the information that you had gained, did you form a suspicion in relation to the accused that is now before the court in relation to this matter.AYes, that’s correct.QAnd as a result of that, was a forensic procedure conduct.AIt was, yes.

Decision

Reasons for decision

I have compared the appearance of the male with the bent finger in the video file with photographs of Mr Burgoyne received into evidence. For the reasons given by Doyle JA, I am satisfied beyond reasonable doubt that Mr Burgoyne is that male. I have compared the appearance of the young woman in the video file with the audiovisual recording of the interview of W. For the reasons given by Doyle JA, I am satisfied beyond reasonable doubt that the young woman in the video file is W. If I were of the opinion that a miscarriage of justice by reason of the receipt of Brevet Sergeant Johnson’s evidence had occurred, I would nonetheless dismiss the appeal because there has not been a substantial miscarriage of justice.Conclusion I would dismiss the appeal. LOVELL JA: I have had the advantage of reading the draft judgment of Kourakis CJ. I gratefully adopt his summary of the facts. I agree with Kourakis CJ’s reasons in relation to Grounds 1, 2 and 4. Regrettably I am unable to agree with his conclusion in relation to Ground 3. I would allow the appeal on that ground and remit the matter to the District Court for retrial. My reasons follow.Ground 33. The Judge’s directions about positive identification were inadequate and caused a miscarriage of justice.Particulars3.1. The prosecutor erred by leading inadmissible opinion evidence of Brevet Sergeant Johnson to support the positive identification of Jason Burgoyne (T105-107). 3.2. The opinion was influenced by the hearsay opinion of another officer. 3.3. The jury were not directed that they could not use Johnson’s evidence as a factor to reason that one [of] the men was Jason Burgoyne. The ground of appeal is inelegantly drafted. As expressed, the ground of appeal alleges that the trial Judge’s directions were inadequate leading to a miscarriage of justice. Particulars 3.1 and 3.2 are simply factual matters. Particular 3.3 identifies the substance of the complaint. That is, the appellant submitted that the trial Judge was under an obligation to direct the jury to disregard Brevet Sergeant Johnson’s evidence, and the failure to give that direction has led to a miscarriage of justice. As Kourakis CJ has pointed out, the appellant’s counsel at trial did not object to the evidence nor seek any directions from the trial Judge about how the evidence should be treated. This was common ground on appeal. There is no separate appeal ground alleging that the appellant’s counsel at trial acted incompetently, although in the context of this case, that is implied. The suggested failure of the trial Judge to give the proposed direction must be assessed against the failure of the appellant’s counsel to both object to Brevet Sergeant Johnson’s evidence and in failing to seek the direction. It is in that context that the question of counsel’s conduct of the trial comes into question. Given the issue that arises under this ground, it is necessary to consider some basic principles of the law of evidence. It is a fundamental principle of the law of evidence that for evidence to be admitted at trial it must be relevant. Relevance describes the relationship between the evidence to be adduced and the facts on which the charge depends.[14] To determine relevance it is necessary to identify the issues at trial. The main facts in issue are those which the prosecution must prove in order to succeed, and this includes facts which exclude potential defences.[14] Andrew Ligertwood, Australian Evidence (LexisNexis Butterworths, 4th ed, 2004) at [2.17].

Ratio Decidendi

Legal Principle Established

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