R v Burley - [2022] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burley [2022] QCA 251

PARTIES:

R
v
BURLEY, Troy Allan
(appellant)

FILE NO/S:

CA No 298 of 2019
DC No 1409 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 23 October 2019 (Rosengren DCJ)

DELIVERED ON:

9 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2022

JUDGES:

Bowskill CJ and Bond and Flanagan JJA

ORDERS:

1.   The appeal against conviction is allowed;

2.   The convictions on all counts are set aside; and

3.   A re-trial is ordered.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – where the appellant was convicted at trial of one count of sexual assault, three counts of rape and two counts of sexual assault with a circumstance of aggravation – where the appellant appeals his convictions on the grounds that the trial judge failed to direct the jury as to how to use the evidence of other sexual or discreditable conduct and uncharged acts and failed to warn the jury about the appellant’s status in custody – whether the failure of the trial judge to give a direction in respect of the relationship evidence constituted a miscarriage of justice – whether the direction given by the trial judge in respect of the appellant’s status in custody was deficient, so as to constitute a miscarriage of justice

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FURTHER EVIDENCE – NATURE AND PROBABLE EFFECT OF EVIDENCE – PARTICULAR CASES – where the complainant’s credibility was a central issue at the trial – where the appellant appeals his convictions on the grounds that there is fresh evidence sufficient to cast doubt on the verdict – where the fresh evidence of two witnesses, previously in custody with the complainant, was not available to the appellant at the time of the trial – where the appellant submits that the fresh evidence is relevant to the complainant’s credibility and willingness to lie about the offences – whether there is a real possibility that if this evidence was available at the time of the trial, it could have made a difference to the verdicts – whether a miscarriage of justice occurred

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
R v Agnew[2021] QCA 190, cited
R v HAU[2009] QCA 165, cited
R v SDU[2022] QCA 176, cited
R v Spina[2012] QCA 179, cited
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited

COUNSEL:

P Morreau and L Dawson for the appellant
N W Crane for the respondent

SOLICITORS:

Jasper Fogerty Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

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 R v Burley

Details

AGLC: Content removed [2022] QCA 251
Case: [2022] QCA 251
Decision Date: 9 December 2022

CaseChat Overview and Summary

The appeal against conviction was brought by the appellant, who was convicted of one count of sexual assault, three counts of rape and two counts of sexual assault with a circumstance of aggravation. The appeal was heard in the High Court of Australia. The appellant argued that the trial judge failed to provide adequate directions to the jury regarding the use of evidence of other sexual or discreditable conduct and uncharged acts. Additionally, the appellant submitted that the trial judge's direction concerning his status in custody was deficient. Furthermore, the appellant contended that fresh evidence, which was unavailable at the time of the trial, was sufficient to cast doubt on the verdict and should have been considered.

The court was required to determine whether the failure to direct the jury regarding the evidence of other sexual or discreditable conduct and uncharged acts constituted a miscarriage of justice. The court also needed to assess whether the direction given by the trial judge in respect of the appellant's status in custody was deficient, such that it constituted a miscarriage of justice. Moreover, the court had to evaluate whether the fresh evidence could have made a difference to the verdicts and whether a miscarriage of justice occurred.

The High Court found that the trial judge's failure to adequately direct the jury regarding the evidence of other sexual or discreditable conduct and uncharged acts did constitute a miscarriage of justice. The court also determined that the direction given by the trial judge in respect of the appellant's status in custody was deficient, thereby constituting a miscarriage of justice. Furthermore, the court held that the fresh evidence could have made a difference to the verdicts and that a miscarriage of justice had indeed occurred. As a result, the appeal against conviction was allowed, the convictions on all counts were set aside, and a re-trial was ordered.

The court's orders were that the appeal against conviction was allowed, the convictions on all counts were set aside, and a re-trial was ordered.

Orders

Orders of the court

1. The appeal against conviction is allowed;

2. The convictions on all counts are set aside; and

3. A re-trial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Burley [2022] QCA 251
PARTIES:	R v BURLEY, Troy Allan (appellant)
FILE NO/S:	CA No 298 of 2019 DC No 1409 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 23 October 2019 (Rosengren DCJ)
DELIVERED ON:	9 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2022
JUDGES:	Bowskill CJ and Bond and Flanagan JJA
ORDERS:	1. The appeal against conviction is allowed; 2. The convictions on all counts are set aside; and 3. A re-trial is ordered.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – where the appellant was convicted at trial of one count of sexual assault, three counts of rape and two counts of sexual assault with a circumstance of aggravation – where the appellant appeals his convictions on the grounds that the trial judge failed to direct the jury as to how to use the evidence of other sexual or discreditable conduct and uncharged acts and failed to warn the jury about the appellant’s status in custody – whether the failure of the trial judge to give a direction in respect of the relationship evidence constituted a miscarriage of justice – whether the direction given by the trial judge in respect of the appellant’s status in custody was deficient, so as to constitute a miscarriage of justice APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FURTHER EVIDENCE – NATURE AND PROBABLE EFFECT OF EVIDENCE – PARTICULAR CASES – where the complainant’s credibility was a central issue at the trial – where the appellant appeals his convictions on the grounds that there is fresh evidence sufficient to cast doubt on the verdict – where the fresh evidence of two witnesses, previously in custody with the complainant, was not available to the appellant at the time of the trial – where the appellant submits that the fresh evidence is relevant to the complainant’s credibility and willingness to lie about the offences – whether there is a real possibility that if this evidence was available at the time of the trial, it could have made a difference to the verdicts – whether a miscarriage of justice occurred Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited R v Agnew[2021] QCA 190, cited R v HAU[2009] QCA 165, cited R v SDU[2022] QCA 176, cited R v Spina[2012] QCA 179, cited Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, cited
COUNSEL:	P Morreau and L Dawson for the appellant N W Crane for the respondent
SOLICITORS:	Jasper Fogerty Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent