R v Burns

Case [2009] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BURNS

[2009] SASC 105

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)

21 April 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTION TO JURY

Appeal against conviction - defendant convicted by unanimous jury in District Court, of offence of unlawfully causing harm with intent to cause harm contrary to section 24(1) of Criminal Law Consolidation Act 1935 (SA) - whether trial Judge erred in direction regarding burden of proof concerning self defence - whether trial Judge erred in direction in relation to flight as evidence of guilty - whether trial Judge erred in directions concerning use jury could make of conversation between defendant and de facto partner - whether miscarriage of justice occurred.

Held: appeal against conviction allowed - risk of miscarriage of justice - real risk that jury may have misunderstood where onus of proof lay on issue of self defence - misdirection of some substance in relation to flight as evidence of guilt - conviction set aside - remitted to District Court for retrial.

Criminal Law Consolidation Act 1935 (SA) s 24(1) and s 353, referred to.
R v Petroff (1980) 2 A Crim R 101; R v Dunn (2006) 94 SASR 177; R v Baltensberger (2004) 90 SASR 129; R v Dickson (1983) 1 VR 227; R v Melrose (1989) 1 Qd R 572; R v Power (1996) 87 A Crim R 407; Re Knowles [1984] VR 751; Weiss v The Queen (2005) 80 ALJR 444; Libke v R (2007) 230 CLR 559; Mraz v R (1955) 93 CLR 493; Stokes v R (1960) 105 CLR 279; R v Bourke [2003] QCA 113; R v Radford (1986) 133 LSJS 110; People v Galbo 218 NY 283, 112 NE 1041 (1916); Shepherd v The Queen (1990) 170 CLR 573; Edwards v The Queen (1993) 178 CLR 193; R v White (1988) 125 C.C.C. (3d) 385; R v Kanaan (2005) 157 A Crim R 238 at 279; R v Franklin (2001) 3 VR 9; R v Chang (2003) 7 VR 236; R v Mazur (2003) 113 A Crim R 67; Zoneff v The Queen (2000) 200 CLR 234, considered.

R v BURNS
[2009] SASC 105

Court of Criminal Appeal         Gray, Sulan and Kourakis JJ

GRAY and SULAN JJ

  1. This is an appeal against conviction.

  2. Raymond Alexander Burns was charged with the offence of unlawfully causing harm with intent to cause harm contrary to section 24(1) of the Criminal Law Consolidation Act 1935 (SA).[1]  It was alleged…

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AGLC
R v Burns [2009] SASC 105
Case
[2009] SASC 105
Decision Date

CaseChat Overview and Summary

In the case of R v Burns, the defendant was convicted by a unanimous jury in the District Court of South Australia of unlawfully causing harm with intent to cause harm, in contravention of section 24(1) of the Criminal Law Consolidation Act 1935 (SA). The primary legal issues before the court were whether the trial judge erred in providing directions to the jury regarding the burden of proof concerning self-defence, the use of flight as evidence of guilt, and the relevance of a conversation between the defendant and their de facto partner. The court also considered whether these errors amounted to a miscarriage of justice.

The court found that there was a real risk that the jury misunderstood the burden of proof in relation to self-defence, and that the judge's direction regarding flight as evidence of guilt was misdirecting to some extent. The court concluded that these errors could have influenced the jury's decision, and therefore, the appeal against the conviction was allowed. The conviction was set aside, and the matter was remitted to the District Court for retrial.

In considering the evidence, the court found that the defendant provided inconsistent accounts of the events, and the prosecution witnesses gave accounts that, if believed, would mean the defence of self-defence would fail. However, the court was unable to conclude that the prosecution had proven beyond reasonable doubt that the defendant did not act in self-defence. The court also noted that the failure of counsel to fully consider the relevance of certain evidence may have contributed to the miscarriage of justice, but this was not finally determined as the appeal was allowed on other grounds.

In conclusion, the appeal against the conviction was allowed, the conviction was set aside, and the matter was remitted to the District Court for retrial. The court emphasised the importance of trial judges providing clear and comprehensive directions to juries, and the need to ensure that the jury understands how the directions on the law relate to the facts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We have considered the defendant’s evidence and the evidence of the witnesses who were called by the prosecution. The defendant gave inconsistent accounts about exactly what had occurred. Witnesses for the prosecution gave accounts that, if their evidence is believed and the description of what occurred given by the complainant is accepted, then the defence of self-defence must fail. Nevertheless, having considered all the evidence, we are unable to conclude that the prosecution has proved beyond reasonable doubt that the defendant did not act in self-defence. However, we are unable to conclude that, if the trial Judge had correctly directed the jury, it could not have influenced the result. For the foregoing reasons we would, therefore, allow the appeal.Fresh Evidence It is unnecessary for us to finally determine whether the failure of counsel to fully consider the relevance of the evidence has led to a miscarriage of justice, as we have concluded that the appeal must be allowed for the reasons stated earlier. We do not think it is appropriate to decide the question of the relevance of the evidence of post-offence conduct, as that will be a matter for the trial Judge and the trial Judge’s discretion upon the re-trial. If counsel seeks to cross-examine the complainant, or to lead the evidence of post‑offence conduct, then the trial Judge will be better placed to determine its admissibility. The question of whether, by cross-examining the complainant about the post-offence conduct, the cross-examination goes beyond credit and whether, as a consequence, the defendant has placed his character in issue are matters to be determined by the trial Judge. For the reasons which have been given, it is unnecessary for us to consider whether the fresh evidence sought to be adduced before us should be received.Conclusion For the foregoing reasons, we allowed this appeal, set aside the conviction and remitted the matter to the District Court for retrial.KOURAKIS J:Written directions The practice of providing a written note to a jury is now well accepted.[35] In R v Dunn[36] Bleby J said:As the authorities to which I have referred show, it is a matter for the trial judge to decide how directions to a jury should be given. Judges are becoming increasingly aware of the benefit of written and technological aids in effective communication of their message to juries. I would not wish to discourage the wise and sensitive use of such aids. It may be that for a particular direction of some complexity a trial judge will wish to rely solely on the words written in an aide memoire without further elaboration. However, it would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down.One cannot assume, even in our relatively well-educated society, that all jurors are literate, and judges should ever be alive to the reaction of members of the jury to a difficult direction and to the possible need of further explanation or repetition of it. More importantly, however, when a direction on the law of the nature of that in question is given, it is incumbent on the judge to ensure that the jury understands how that direction on the law relates to the facts, and to identify the evidence that is relevant to the application of that particular direction. That cannot be done merely by supplying the jury with a particular set of words comprising a direction on the law without relating that to the facts.There may be some circumstances where a written memorandum may cure "minor verbal infelicities" in the judge's oral directions, but they cannot be used to cure a fundamental omission in the oral direction and on the assumption that the jury will properly relate that direction, without assistance, to the relevant facts.[37] (footnotes omitted)[35] R v Dunn (2006) 94 SASR 177 at 185, [36].[36] (2006) 94 SASR 177.[37] R v Dunn (2006) 94 SASR 177 at 187, [41]-[43].

Decision

Reasons for decision

For the reasons which have been given, it is unnecessary for us to consider whether the fresh evidence sought to be adduced before us should be received.Conclusion For the foregoing reasons, we allowed this appeal, set aside the conviction and remitted the matter to the District Court for retrial.KOURAKIS J:Written directions The practice of providing a written note to a jury is now well accepted.[35] In R v Dunn[36] Bleby J said:As the authorities to which I have referred show, it is a matter for the trial judge to decide how directions to a jury should be given. Judges are becoming increasingly aware of the benefit of written and technological aids in effective communication of their message to juries. I would not wish to discourage the wise and sensitive use of such aids. It may be that for a particular direction of some complexity a trial judge will wish to rely solely on the words written in an aide memoire without further elaboration. However, it would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down.One cannot assume, even in our relatively well-educated society, that all jurors are literate, and judges should ever be alive to the reaction of members of the jury to a difficult direction and to the possible need of further explanation or repetition of it. More importantly, however, when a direction on the law of the nature of that in question is given, it is incumbent on the judge to ensure that the jury understands how that direction on the law relates to the facts, and to identify the evidence that is relevant to the application of that particular direction. That cannot be done merely by supplying the jury with a particular set of words comprising a direction on the law without relating that to the facts.There may be some circumstances where a written memorandum may cure "minor verbal infelicities" in the judge's oral directions, but they cannot be used to cure a fundamental omission in the oral direction and on the assumption that the jury will properly relate that direction, without assistance, to the relevant facts.[37] (footnotes omitted)[35] R v Dunn (2006) 94 SASR 177 at 185, [36].[36] (2006) 94 SASR 177.[37] R v Dunn (2006) 94 SASR 177 at 187, [41]-[43]. Nonetheless, it is a rule of common law that in a criminal trial the trial judge must give the jury oral directions. That rule has not been modified by judicial authority, nor has it been abrogated by statute. It is for that reason that a written communication to juries can be no more than an aide memoire.[38] In R v Petroff[39] Nagel CJ at CL held that the jury should be left under no misapprehension that a document provided to a jury was “any addition to or in lieu of the oral directions that they had been given”.[40] Similarly, in R v Bourke[41] Williams JA said:Whilst it is clearly desirable that some express words to the effect that the document is not to be used in substitution for oral directions should be used, the real question will always be whether the jury were left under a misapprehension that the document was in addition to or in lieu of oral directions.[42][38] R v Petroff (1980) 2 A Crim R 101 at 115-6.[39] (1980) 2 A Crim R 101.[40] R v Petroff (1980) 2 A Crim R 101 at 115.[41] [2003] QCA 113.[42] R v Bourke [2003] QCA 113, [22].

Ratio Decidendi

Legal Principle Established

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