R v Burley - [2011] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burley [2011] QCA 13

PARTIES:

R
v
BURLEY, Jason Niki
(applicant)

FILE NO/S:

CA No 275 of 2010
DC No 1964 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

11 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2011

JUDGES:

Chief Justice and Chesterman and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED – IN PRESENCE OF ACCUSED PERSON – where the accused took flight during the trial – where the trial judge permitted the trial to proceed in the absence of the accused

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed the jury on the flight of the accused during trial – where the trial judge failed to direct the jury on a particular matter of DNA evidence – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 617(1), s 617(2), s 617(5)

R v Stuart and Finch [1974] Qd R 297, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Winston[1994] QCA 435, cited

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA. I agree that the application should be refused, for those reasons.

[2] CHESTERMAN JA: I agree that the application for an extension of time to appeal against conviction should be refused for the reasons given by White JA.

[3] WHITE JA: The applicant was convicted in his absence of one count of armed robbery on 26 August 2010 (not 24 August as appears in the applicant’s notices) in the District Court at Rockhampton. His notice of appeal is stamped as having been filed on 10 November 2010 although the applicant has dated it 28 October 2010. He has filed an application for an extension of time.

[4] The applicant, who was then on bail, did not return to court for what became the final day of his trial. He was giving evidence-in-chief when court was adjourned the day before. He was arrested on approximately 27 September 2010. Thereafter he says he experienced delays in Legal Aid receiving his material and in responding. The delay is not great even though the month in which he ought to have been attending to filing his appeal he was “on the run”. If it is otherwise in the interest of justice[1] that his appeal should be heard, the delay would not be a barrier. To answer…

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: R v Burley [2011] QCA 13
Case: [2011] QCA 13
Decision Date: 11/02/2011

CaseChat Overview and Summary

The case of R v Burley involved the appellant, who was on trial for various criminal charges. During the trial, the appellant fled the court premises, leading the trial judge to allow the proceedings to continue in his absence. The appellant subsequently appealed against his convictions, arguing that the trial judge's direction to the jury regarding his flight during the trial amounted to a misdirection, which constituted a miscarriage of justice. Additionally, the appellant contended that the trial judge failed to direct the jury on a particular matter of DNA evidence, which also amounted to a misdirection and a miscarriage of justice.

The legal issues before the court were whether the trial judge's direction to the jury on the appellant's flight during the trial was a misdirection and whether the trial judge's failure to direct the jury on a particular matter of DNA evidence constituted a miscarriage of justice. The court had to consider whether these alleged errors were significant enough to warrant a new trial.

The court found that the trial judge's direction to the jury on the appellant's flight did not constitute a misdirection, as it was consistent with the law and appropriately left the ultimate inferences to be drawn by the jury. Furthermore, the court held that the trial judge's failure to direct the jury on the particular matter of DNA evidence did not amount to a misdirection or a miscarriage of justice, as the evidence was not crucial to the appellant's conviction. Consequently, the court dismissed the appeal and refused the application for a new trial.

Orders

Orders of the court

Application is refused.

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 [2011] QCA 13
PARTIES:	R v BURLEY, Jason Niki (applicant)
FILE NO/S:	CA No 275 of 2010 DC No 1964 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	11 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2011
JUDGES:	Chief Justice and Chesterman and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application is refused.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED – IN PRESENCE OF ACCUSED PERSON – where the accused took flight during the trial – where the trial judge permitted the trial to proceed in the absence of the accused CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed the jury on the flight of the accused during trial – where the trial judge failed to direct the jury on a particular matter of DNA evidence – whether there was a miscarriage of justice Criminal Code 1899 (Qld), s 617(1), s 617(2), s 617(5) R v Stuart and Finch [1974] Qd R 297, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited R v Winston[1994] QCA 435, cited
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent