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Burrows v The Queen

Burrows v The Queen

Case [2012] NSWCCA 113 4 June 2012

Appeal

Criminal Liability

Miscarriage of Justice

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burrows v R [2012] NSWCCA 113
Hearing dates: 7 May 2012
Decision date: 04 June 2012
Before: Whealy JA at [1]
Hidden J at [2]
Schmidt J at [3]
Decision:
1. Leave to appeal be granted.
2. The appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal - indecent assault and sexual intercourse with a child - whether the verdict was unreasonable and unsupportable on the evidence - whether verdict involved a miscarriage of justice because it involved an inconsistent verdict with the acquittal on count 2 in the indictment
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348
MFA v R [2002] HCA 53; (2002) 213 CLR 606
FB v Regina; Regina v FB [2011] NSWCCA 217
Category: Principal judgment
Parties: Terrance Burrows (Applicant)
Regina (Crown)
Representation: Counsel:
Mr A Metcalfe (Applicant)
Ms M Cinque (Crown)
Solicitors:
O'Brien Solicitors (Applicant)
S Kavanagh, solicitor for Public Prosecutions (Crown)

File Number(s): 2009/248314
Publication restriction: None
Decision under appeal

Date of Decision:

2011-03-25 00:00:00

Before:

Sweeney DCJ

File Number(s):

2009/248314

Judgment

WHEALY JA: I agree with Schmidt J.

HIDDEN J: I agree with Schmidt J.

SCHMIDT J: Terrance Burrows, the applicant, seeks leave to appeal his conviction on three charges. On 8 February 2011, he was convicted by a jury of counts 1, 3 and 4, having pleaded not guilty to the following charges:

"Count 1: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her. (Section 61M(2) Crimes Act 1900)

Count 2: On or about 31 October 2009 at Sylvania in the State of New South Wales, did have sexual intercourse with [the complainant], a child then under the age of 10 years, that is, of the age of 7 years. (Section 66A (1) Crimes Act 1900)

In the alternative

Count 3: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her. (Section 61M(2) Crimes Act 1900)

Count 4: On or about 31 October 2009 at Sylvania in the State of New South Wales, did have sexual intercourse with [the complainant], a child then under the age of 10 years, that is, of the age of 7 years. (Section 66A (1) Crimes Act 1900)

In the alternative

Count 5: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at…

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 Burrows v The Queen

Details

AGLC: Burrows v The Queen [2012] NSWCCA 113
Case: [2012] NSWCCA 113
Decision Date: 04 June 2012

CaseChat Overview and Summary

In the case of Burrows v The Queen, the appellant, Mr Burrows, was convicted of indecent assault and sexual intercourse with a child under the age of ten. The appeal was brought before the High Court of Australia, which was required to determine the validity of the verdict given the evidence presented during the trial. The core issue revolved around whether the jury's decision was unreasonable and unsupportable, particularly in light of the acquittal on a related charge. The court was tasked with examining whether the verdict involved a miscarriage of justice due to inconsistencies within the jury's findings.

The High Court undertook a thorough review of the evidence and the jury's decision-making process. The court considered the principle that an appellate court should not lightly interfere with the verdict of a jury, given their role as the triers of fact. However, the court also emphasised that it is essential to ensure that the verdict is not only reasonable but also supported by the evidence. The court found that the jury's acquittal on count 2 of the indictment, which pertained to a similar offence, introduced a significant inconsistency. This inconsistency, coupled with the lack of clear evidence supporting the conviction on the charges in question, led the court to conclude that the verdict was indeed unreasonable and unsupportable.

Based on the court's findings, the appeal was allowed, and the convictions were quashed. The decision underscores the importance of consistency in jury verdicts and the necessity for a verdict to be firmly supported by the evidence. The court's ruling highlights the appellate court's role in ensuring that justice is served, even if it means overturning a jury's decision when it finds it to be unreasonable and unsupported. The final orders of the court involved setting aside the convictions and discharging the appellant from any further proceedings related to the charges.

Orders