R v Burns

Case [1999] QCA 189
IN THE COURT OF APPEAL [1999] QCA 189
SUPREME COURT OF QUEENSLAND

C.A. No. 427 of 1998

Brisbane

[R v. Burns]

THE QUEEN

v.

PETER JOHN BURNS

Appellant

McMurdo P
Pincus JA

Muir J

Judgment delivered 28 May 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL ALLOWED. VERDICTS SET ASIDE. APPELLANT TO BE RETRIED ON

COUNTS OF TORTURE AND RAPE.

CATCHWORDS: 

CRIMINAL LAW - appeal against conviction and sentences imposed for torture and rape offences - miscarriage of justice - misuse of the rule in Browne v Dunn - failure to correct in summing up erroneous statements of principle by prosecutor - failure to exclude evidence, the prejudicial effect of which exceeded its probative value - application of s 668E of Criminal Code - improper and objectionable cross-examination - whether right to remain silent infringed by cross-examination - whether there can be a re- trial for offence of torture when acts constituting another offence of which appellant has been convicted are subsumed within it.

Pearce (1998) 72 ALJR 1416
Vannatter (CA 355 of 1998, 9 April 1999)
Criminal Code s 668E
Counsel:  Mr A J Glynn S.C. for the appellant
Mr M J Griffin for the respondent
Solicitors:  Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:  26 March 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 28 May 1999

  1. I have had the benefit of reading the draft reasons for judgment of Muir J, who has set out the facts and isolated the issues. I have also obtained assistance from reading the draft reasons for judgment of Pincus JA. I am in agreement with them that this appeal should be allowed but have come to that conclusion by a different path.

  2. The appellant pleaded guilty to assault occasioning bodily harm but not guilty to one count of torture and two counts of rape. The complainant in each case was his estranged wife; the offences occurred during a two hour period on 30 October 1997. He was convicted after a five day trial on all counts.

    The evidence of Bruce Michael

  3. The first ground of appeal is that the learned trial judge erroneously admitted evidence from Bruce Michael.

  4. Michael gave evidence that he met the appellant at the beginning of October 1997 and "after about five minutes he asked me if I knew anybody that would knock off his missus". He was invited over to the appellant's house a few nights later for a couple of beers and said, "That he wasn't going to give anything to his missus, he'd worked too hard for it and did I know anybody, and that, and I said no." The next Sunday, the appellant came to his home and "He asked me the same thing, about getting someone to knock his missus off. ... he was really angry about his marital breakup, and that, and if I would know anybody - I don't know why…

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Details
AGLC
R v Burns [1999] QCA 189
Case
[1999] QCA 189
Decision Date

CaseChat Overview and Summary

In the case of R v Burns, the appellant, an Australian citizen, was convicted of one count of assault occasioning bodily harm, one count of torture, and two counts of rape. The appellant pleaded guilty to the assault charge but denied the remaining charges. The offences were committed against the appellant's estranged wife during a two-hour period on 30 October 1997. The appellant was found guilty on all counts following a five-day trial. This appeal focuses on the grounds of potential miscarriage of justice, misuse of the rule in Browne v Dunn, the failure to correct erroneous statements of principle by the prosecutor, and the prejudicial effect of evidence admitted by the trial judge.

The appellant argued that the trial judge made an error in admitting evidence from Bruce Michael, who testified that the appellant had solicited him to kill his wife. The appellant contended that this evidence was prejudicial and its probative value was outweighed by this prejudice. The trial judge, however, ruled that the evidence was admissible as it was relevant to the relationship between the appellant and the complainant, as well as the appellant's intent in committing the offence of torture. The judge also directed the jury to consider the evidence only in the context of the appellant's attitude towards his wife prior to the offences and not to use it as proof of the complainant's truthfulness. The court held that the evidence was admissible for both purposes, and the direction given by the trial judge was more favourable to the appellant than required. Therefore, this ground of appeal was dismissed.

Furthermore, the appellant argued that the trial judge had failed to correct erroneous statements of principle made by the prosecutor during the summing up. The appellant claimed that the trial judge had misapplied the rule in Browne v Dunn, resulting in a miscarriage of justice. The court held that the rule in Browne v Dunn was correctly applied, and there was no miscarriage of justice. The court also found that the trial judge's summing up did not contain any erroneous statements of principle. Therefore, this ground of appeal was dismissed.

In conclusion, the appeal was dismissed on all grounds. The appellant's conviction and sentences for the charges of assault occasioning bodily harm, torture, and rape were upheld. The trial judge's admission of evidence from Bruce Michael was deemed admissible, and the direction given to the jury was more favourable to the appellant than required. The court found no miscarriage of justice and no erroneous statements of principle in the trial judge's summing up.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant pleaded guilty to assault occasioning bodily harm but not guilty to one count of torture and two counts of rape. The complainant in each case was his estranged wife; the offences occurred during a two hour period on 30 October 1997. He was convicted after a five day trial on all counts. The evidence of Bruce Michael The first ground of appeal is that the learned trial judge erroneously admitted evidence from Bruce Michael. Michael gave evidence that he met the appellant at the beginning of October 1997 and "after about five minutes he asked me if I knew anybody that would knock off his missus". He was invited over to the appellant's house a few nights later for a couple of beers and said, "That he wasn't going to give anything to his missus, he'd worked too hard for it and did I know anybody, and that, and I said no." The next Sunday, the appellant came to his home and "He asked me the same thing, about getting someone to knock his missus off. ... he was really angry about his marital breakup, and that, and if I would know anybody - I don't know why he was asking me - and this, that and the other and I asked him to leave and he did. ... He said it was worth x amount and if anybody was going to do it he'd give them the boat." The primary judge allowed the evidence to be given as it was relevant to the relationship between the appellant and the complainant. The appellant denied the conversations. In his summing up, his Honour told the jury that if they accepted the conversations occurred they: "... may find that they show an attitude by the [appellant] towards his wife at a time shortly before these incidents that lend some support to what [the appellant's wife] says happened. You may find that the [appellant] bore serious ill-will towards his wife prior to 30 October 1997. If that was the case, you may well find it relevant to what occurred on that day, and in your task of weighing up the differences between the complainant's account and the [appellant's] it may well explain the presence of gloves and rope in the [appellant's] possession in the car that day - if you accept the complainant's account of what happened. You might also recall that the complainant spoke of her husband speaking to her at the bridge of his attempts to hire someone to kill her. What you shouldn't do if you find that the conversations with Mr Michael did occur, is use that fact to determine the complainant is telling the truth, at least about that part of the events. It may be that this evidence is capable of that use, but it has been admitted solely to assist you in looking at the attitude of the [appellant] to his wife shortly prior to 30 October, and you should restrict that evidence, if you find it to be true, to that use." The offences occurred on 30 October 1997, shortly after the conversations. The evidence from Mr Michael was admissible in relation to all offences as evidence showing the relationship between the appellant and complainant. In addition, the offence of torture involves "the intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more than one occasion". The evidence was also admissible as evidence as to the intention of the appellant in respect of the offence of torture. The direction given by the learned primary judge was therefore more favourable to the appellant than required. There is nothing in this ground of appeal. The Browne v Dunn ground

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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