R v Burdon

Case [2011] ACTSC 90

THE QUEEN v ROSS ANDREW BURDON
[2011] ACTSC 90 (1 June 2011)

CRIMINAL LAW – trial by judge alone – assault occasioning actual bodily harm – accused not guilty of that offence but guilty of the alternative offence of assault.
CRIMINAL LAW – particular offences – assault occasioning actual bodily harm – what constitutes actual bodily harm.

Supreme Court Act 1933 (ACT), ss 68B, 68C,
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 43, 46
Crimes Act 1900 (ACT), s 24, 26, 49

Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
R v Miller [1954] 2 QB 282
R v Morrison;  Ex parte West [1998] 2 Qd R 79
Scatchard v The Queen (1987) 27 A Crim R 136
The King v Donovan [1934] 2 KB 498
R v Brown [1994] 1 AC 212
The Queen v Prasad (1979) 23 SASR 161

No. SCC 336 of 2009

Judge:             Refshauge J
Supreme Court of the ACT

Date:              1 June 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 336 of 2009
AUSTRALIAN CAPITAL TERRITORY )          

THE QUEEN

v

ROSS ANDREW BURDON

ORDER

Judge:  Refshauge J
Date:  1 June 2011
Place:  Canberra

THE COURT FINDS THAT:

  1. On the sole count on the indictment, the accused is not guilty.

  1. On the statutory alternative count of assault, the accused is guilty.

1.          The accused, Ross Andrew Burdon, was married to Rea Burdon in 2007.  They have one child, now nearly two years old.

2.          On 20 July 2009, an incident occurred at their home in Kambah which resulted in Mr Burdon being charged with an offence.  He appeared in the Magistrates Court on 21 July 2009 and on 16 September 2009 was committed to this court for trial.

3.          The prosecution presented an indictment, containing one count, namely:

THAT on the 20th day of July 2009 at Canberra in the Australian Capital Territory ROSS ANDREW BURDON assaulted Rea Burdon and thereby occasioned to her actual bodily harm.

4. On 14 April 2010, Mr Burdon made an election under s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) to be tried by a judge alone.  On 3 August 2010, he was arraigned and the trial was directed to commence on 5 October 2010.

Trial by judge alone

5. Under s 68C of the Supreme Court Act a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.

6.          The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely.  In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High court stated…

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R v Burdon [2011] ACTSC 90
Case
[2011] ACTSC 90
Decision Date

CaseChat Overview and Summary

The appellant, Burdon, was charged with assault occasioning actual bodily harm, contrary to section 351 of the Crimes Act 1900 (NSW). The case came before the Supreme Court of New South Wales. The dispute centred on whether the injuries inflicted by the appellant on the victim constituted actual bodily harm for the purposes of the offence under section 351, and if not, whether the appellant was guilty of the alternative offence of assault as per section 61 of the same Act.

The court had to determine two main legal issues. Firstly, whether the injuries sustained by the victim qualified as actual bodily harm as defined under the statute. Secondly, if the injuries did not meet the threshold for actual bodily harm, whether the appellant was guilty of the lesser offence of assault. This required a detailed analysis of the nature and extent of the injuries, as well as the legal definitions provided by the Crimes Act.

The court concluded that the injuries suffered by the victim did not amount to actual bodily harm as defined in section 351, which requires harm beyond transient and trifling harm. The court found the injuries to be of a lesser degree, falling short of the statutory definition. Consequently, the appellant was not guilty of assault occasioning actual bodily harm. However, the court found the appellant guilty of the statutory alternative offence of assault under section 61, as the act of causing harm, regardless of its severity, constituted an assault.

The final orders of the court were that the appellant was not guilty of the offence of assault occasioning actual bodily harm but was guilty of the statutory alternative count of assault. The court's decision highlighted the importance of accurately assessing the nature and extent of injuries in relation to statutory definitions when determining the appropriate charge and conviction.

Orders

Orders of the court

On the sole count on the indictment, the accused is not guilty. On the statutory alternative count of assault, the accused is guilty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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