R v Burnham; R v McPartland - [2004] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION: R v Burnham; R v McPartland [2004] QCA 101
PARTIES: R
v
BURNHAM, Kylie Mary
(appellant/applicant)
R
v
McPARTLAND, Brian Michael
(appellant/applicant)

FILE NO/S:

CA No 351 of 2003 CA No 364 of 2003 DC No 369 of 2003
DIVISION: Court of Appeal
PROCEEDING: Appeals against Conviction & Sentence
ORIGINATING
COURT: District Court at Maroochydore
DELIVERED ON: 8 April 2004
DELIVERED AT: Brisbane
HEARING DATE: 25 March 2004
JUDGES: McPherson and Williams JJA and Philippides J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDERS:

1.

In CA No 351 of 2003 (a) Appeal against convictions dismissed

(b) Leave to appeal against sentence granted and appeal allowed to the extent of adding to the sentences imposed at first instance an order that the sentences be suspended after serving 18 months with an operational period of four years
2. In CA No 364 of 2003 (a) Appeal against convictions dismissed

(b)

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – APART FROM STATUTE – PARTICULAR CASES – where appellants convicted of two counts of robbery in company with personal violence and one count of attempted robbery in company with personal violence – where appellant McPartland also convicted of rape – where first count occurred on earlier date to other two – where some similar circumstances in both robberies – where counts were joined – where strong evidence against appellants on first count – whether there was such a striking similarity between the offences as to make the evidence as to each admissible and relevant to the others

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – IDENTIFICATION EVIDENCE – TESTIMONY AS TO BELIEF IN IDENTITY – where identification evidence from complainants on later two counts was insufficient alone to identify appellants as the offenders – whether jury verdicts unsafe and unsatisfactory

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant McPartland sentenced to 10 years imprisonment – where appellant Burnham sentenced to four years imprisonment – where McPartland had extensive criminal history and committed offences three weeks after being released from prison on earlier convictions – where Burnham had no prior criminal history but participated in the violence of the robberies – whether sentences imposed were manifestly excessive
Hoch v R (1988) 165 CLR 292, cited
Pfennig v R (1995) 182 CLR 461, cited
R v O’Keefe [2000] 1 Qd R 564; [1999] QCA 50; CA No 332
of 1998, 5 March 1999, cited
Sutton v R (1984) 152 CLR 528, cited
COUNSEL: K M McGinness for the appellants/applicants
D L Meredith for the respondent
SOLICITORS: Legal Aid Queensland for the appellants/applicants
Director of Public Prosecutions (Queensland) for the
respondent

McPHERSON JA:

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.

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Details

Case: [2004] QCA 101
Decision Date: 8/04/2004

CaseChat Overview and Summary

In the case of R v Burnham; R v McPartland, the appellants, Burnham and McPartland, were convicted of multiple counts of robbery and attempted robbery, with additional charges for McPartland including rape. The offences occurred on different dates, with the first count preceding the other two. The appellants were convicted in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal. The primary legal issues centred around the admissibility of evidence pertaining to each count, particularly given the striking similarities in the circumstances of the robberies and the potential prejudice this could cause to the appellants.

The court was required to determine whether the evidence of each count was admissible and relevant to the others, given the similar circumstances and the potential prejudice this could cause to the appellants. It was essential to consider the rules regarding the joinder of counts in criminal cases and whether the striking similarities between the offences warranted the admissibility of evidence across all counts. The court examined whether the evidence from the first count, where there was strong evidence against the appellants, could be admissible in relation to the other counts, despite the temporal separation and differing charges.

The Court of Appeal held that the evidence from the first count was not admissible in relation to the other counts due to the temporal separation and the differing charges. The court found that while there were similarities in the circumstances of the robberies, the potential for prejudice outweighed the relevance of the evidence from the first count to the other counts. Consequently, the convictions were upheld, and the appeal was dismissed. The court's reasoning was based on the principles of ensuring a fair trial for the appellants while considering the potential prejudicial impact of admitting evidence from one count in relation to another.

Orders

Orders of the court

In CA No 351 of 2003 (a) Appeal against convictions dismissed

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.

CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – APART FROM STATUTE – PARTICULAR CASES – where appellants convicted of two counts of robbery in company with personal violence and one count of attempted robbery in company with personal violence – where appellant McPartland also convicted of rape – where first count occurred on earlier date to other two – where some similar circumstances in both robberies – where counts were joined – where strong evidence against appellants on first count – whether there was such a striking similarity between the offences as to make the evidence as to each admissible and relevant to the others
CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – IDENTIFICATION EVIDENCE – TESTIMONY AS TO BELIEF IN IDENTITY – where identification evidence from complainants on later two counts was insufficient alone to identify appellants as the offenders – whether jury verdicts unsafe and unsatisfactory
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant McPartland sentenced to 10 years imprisonment – where appellant Burnham sentenced to four years imprisonment – where McPartland had extensive criminal history and committed offences three weeks after being released from prison on earlier convictions – where Burnham had no prior criminal history but participated in the violence of the robberies – whether sentences imposed were manifestly excessive
Hoch v R (1988) 165 CLR 292, cited Pfennig v R (1995) 182 CLR 461, cited R v O’Keefe [2000] 1 Qd R 564; [1999] QCA 50; CA No 332 of 1998, 5 March 1999, cited Sutton v R (1984) 152 CLR 528, cited
COUNSEL:	K M McGinness for the appellants/applicants D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants/applicants Director of Public Prosecutions (Queensland) for the respondent