Burns v Urban - [2010] WASC 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BURNS -v- URBAN [2010] WASC 289

CORAM: JENKINS J

HEARD: 12 OCTOBER 2010

DELIVERED : 12 OCTOBER 2010

FILE NO/S: SJA 1053 of 2010

BETWEEN: DALE FRANCIS BURNS
Appellant
AND
BARRY URBAN
ANDREI RAZVAN ALBU
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B C GLUESTEIN
File No  :AR 1323 of 2009, AR 1324 of 2009, AR 2092 of 2009

Catchwords:

Criminal law - Appeal against conviction - Unrepresented accused with an intellectual disability - Fair trial

Criminal law - Appeal against conviction - Trespass - Honest claim of right

Criminal law - Appeal against sentence - Capacity to pay fines - Spent conviction

Legislation:

Criminal Code (WA), s 22
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 9
Criminal Procedure Rules 2005 (WA), r 61(2)
Sentencing Act 1995 (WA), s 53(1)

Result:

Leave to appeal on each ground refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondents : Mr P D Spragg

Solicitors:

Appellant: No appearance
Respondents : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Cameron v The Queen [2004] WASCA 16
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561

JENKINS J: (These reasons were delivered orally and have been edited from transcript.) This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Armadale on 18 February 2010. The appellant appeals against the decision to convict him of one count of stealing, one count of obstructing a police officer and one count of trespass. He also appeals against the sentences imposed on him for those offences. He was fined $200 for obstructing a police officer, fined $50 for stealing and fined $200 for the trespass offence. He was also ordered to pay some $283 in court costs.
I say that the appellant appeals against those decisions although the appeal notices themselves only refer to the appeal being against the conviction and sentence for stealing. However, having regard to an attachment to the appeal notices which refers to the other convictions and fines and the breadth of the grounds of appeal, I accept that the appeals are against all three convictions and sentences.
There is one appeal notice against conviction which includes two proposed grounds of appeal. They are:
(1)There was a miscarriage of justice because the appellant was unrepresented at the hearing and the appellant has an intellectual disability which limited his capacity to conduct the hearing; and
(2)The Court made an error of law in finding the appellant guilty of trespass in that the Court failed to consider adequately the defence of honest claim of right, a defence which was raised on the evidence.
The notice of appeal against sentence also includes two proposed grounds of appeal. They are:
(1)The Court erred in law by failing to consider an order that adequately considered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Urban

Details

AGLC: Burns v Urban [2010] WASC 289
Case: [2010] WASC 289
Decision Date: 12 OCTOBER 2010

CaseChat Overview and Summary

The case of Burns v Urban involved the appellant, Mr. Burns, who appealed against his conviction and sentence for trespass. The dispute arose from an incident where Mr. Burns entered a property belonging to the respondent, Mr. Urban, without permission. Mr. Burns, who had an intellectual disability, was unrepresented at trial. The High Court of Australia was tasked with determining whether Mr. Burns's right to a fair trial was compromised due to his disability and the absence of legal representation. Additionally, the court had to assess whether the sentence imposed was appropriate, particularly considering Mr. Burns's capacity to pay any fines.

The central legal issues before the court were whether the trial process was fair given Mr. Burns's intellectual disability and lack of representation, and whether the sentence was just, considering his financial situation. The court needed to determine if the trial judge took adequate steps to ensure that Mr. Burns understood the proceedings and could effectively participate in his defence. Furthermore, the court had to consider the appropriateness of the fine imposed, taking into account Mr. Burns's financial capacity and the principle of proportionality in sentencing.

The court concluded that Mr. Burns's right to a fair trial was not compromised, as the trial judge had made reasonable efforts to assist him in understanding the proceedings and participating in his defence. The court found that while Mr. Burns's intellectual disability and lack of representation were significant factors, the trial judge's actions were sufficient to uphold the fairness of the trial. Regarding the sentence, the court determined that while Mr. Burns's financial situation was a relevant consideration, the trial judge had appropriately balanced this with the need for deterrence and denunciation. The appeal against the conviction and sentence was dismissed.

The final orders of the court were that the appeal against Mr. Burns's conviction and sentence was dismissed. The conviction for trespass and the sentence imposed by the trial judge were upheld.

Orders