R v Burns - [2003] NSWCCA 30

Reported Decision:
137 A Crim R 557

New South Wales

Court of Criminal Appeal

CITATION: Regina v Bradley Scott Burns [2003] NSWCCA 30

HEARING DATE(S): 4 February 2003

JUDGMENT DATE:
25 February 2003

JUDGMENT OF: Hodgson JA at 1; Sully J at 5; Buddin J at 91

DECISION: Appeal against conviction allowed; conviction and sentence quashed; new trial ordered

LEGISLATION CITED: Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Criminal Appeal Act 1912

CASES CITED: Reg. v Zorad (1990) 19 NSWLR 91
Azzopardi v The Queen (2001) 205 CLR 50
Fernando (1992) 72 A Crim R 58
Fernando (2002) NSWCCA 28
R v Beattie (1996) 40 NSWLR 155
R v Hasenkamp, CCA unreported, 24 February 1998
R v McGoldrick, CCA unreported, 28 April 1998
R v RPS, CCA unreported, 13 Augusut 1997
Stanoevski v The Queen (2001) 202 CLR 115
Palmer v The Queen (1998) 193 CLR 1
V (1998) 100 A Crim R 448
Mraz v The Queen (1955) 93 CLR 493

PARTIES :
Regina
Bradley Scott Burns

FILE NUMBER(S): CCA 60832/01

COUNSEL: L. Lamprati - Crown
H. Dhanji - Appellant

SOLICITORS: S. E. O'Connor - Crown
D. J. Humphreys - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/61/0038

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

60832/01

HODGSON JA
SULLY J
BUDDIN J

Tuesday 25 February 2003

REGINA v BRADLEY SCOTT BURNS

Judgment

1 HODGSON JA: I agree with Sully J and Buddin J that Grounds 1-7 fail, for the reasons given by Sully J.

2 In relation to Ground 8, I agree with Buddin J. It is unfortunate that the question of cross-examination of Mr. Borton on his convictions was raised so belatedly and so diffidently by Counsel for the appellant; but it was raised, and no rule 4 point arises.

3 The jury were aware that Mr. Borton was in custody, was a user of illegal drugs, and had a motive to give evidence against the appellant. However, for all the jury knew, his custody could have been on remand, with Mr. Borton still being entitled to the presumption of innocence. His evidence was crucial to the Crown case. In those circumstances, my opinion is that evidence of convictions for dishonesty would have substantial probative value, and the eliciting of that evidence in cross-examination could, as a matter of reasonable possibility, have resulted in acquittal.

4 For those reasons, I agree with the orders proposed by Buddin J.

5 SULLY J: In August 2001 the appellant, Mr. Burns, stood trial in the District Court at Bathurst and before his Honour Judge Nield and a jury. The appellant was charged with, and the jury found him guilty of, an offence of armed robbery with an offensive weapon, namely a knife. Such an offence contravenes section 97(1) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. The appellant was in fact sentenced to imprisonment for 7 years, a non-parole period of 4-1/2 years being set.…

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 Burns

Details

AGLC: R v Burns [2003] NSWCCA 30
Case: [2003] NSWCCA 30
Decision Date: 25 February 2003

CaseChat Overview and Summary

In Regina v Bradley Scott Burns, the appellant was convicted of armed robbery with an offensive weapon. The appellant, Bradley Scott Burns, challenged his conviction and sentence, seeking leave to appeal. The appeal raised eight grounds, primarily focusing on alleged misdirections and omissions by the trial judge, as well as issues related to the credibility of key witnesses and the admissibility of certain evidence.

The first seven grounds of appeal related to the trial judge's directions to the jury and the adequacy of warnings regarding the reliability of certain evidence. The Court found that the trial judge's directions were appropriate and that there was no miscarriage of justice. The eighth ground concerned the trial judge's refusal to allow cross-examination of a key witness, Simon Borton, about his criminal convictions for dishonesty. The Court held that the exclusion of this evidence constituted a miscarriage of justice as it had substantial probative value regarding the witness's credibility and could have affected the jury's assessment of the facts in issue.

Consequently, the appeal against conviction was allowed, the conviction and sentence were quashed, and a new trial was ordered. The Court emphasized the importance of assessing the credibility of key witnesses and the potential impact of excluding relevant evidence on the outcome of a trial.

Orders