Burrows v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Burrows, sought leave to appeal against a decision of the Court of Criminal Appeal. The Crown was represented by Mr. Byrne and Mr. Farr, while the applicant was represented by Mr. O'Donnell.

The primary legal issue before the High Court was whether the trial judge erred in failing to leave the question of provocation to the jury. A secondary ground of appeal concerned the rebuttal of a suggestion of fabrication made by the Crown to a defence witness. Specifically, it was argued that the defence should have been permitted in re-examination to present evidence of prior consistent statements made by the witness, particularly after it was put to her that she would say anything to assist the applicant.

Mr. O'Donnell submitted that the Court of Criminal Appeal had not adequately considered the provisions of the Evidence Act when determining the issue of prior consistent statements, instead relying on case law such as *Clements v The Nominal Defendant* and *R v Oyesiku*. He contended that the failure to leave provocation to the jury was a ground that stood on its own and raised questions of jurisdictional conflict between Western Australia and Queensland.