R v Burton - [2014] QCA 37

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burton [2014] QCA 37

PARTIES:

R
v
BURTON, Grant
(appellant/applicant)

FILE NO/S:

CA No 192 of 2013
DC No 1873 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2013

JUDGES:

Gotterson and Morrison JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to adduce further evidence.1.

Appeal against conviction dismissed.2.

Grant leave to appeal against sentence.3.

Appeal against sentence allowed.4.

Substitute for the sentence imposed on Count 1 on the indictment, a sentence of eight years imprisonment.5.

Order that the appellant be eligible for parole after service of one-half of that term.6.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where a doctor as an expert witness gave factual evidence and opinion evidence – where the trial judge gave directions that there was little reason to reject the opinion evidence – where the appellant contends that the opinion evidence was circumstantial – where the appellant contends that the trial judge failed to give further directions as to the treatment of such evidence – whether the lack of directions was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the trial judge directed the jury of the need to be satisfied beyond reasonable doubt of every element of the offence – where the appellant contends that the directions were insufficient as to the consent element – whether the directions were insufficient as to cause a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the appellant contends that their defence counsel failed to cross-examine or lead evidence – where the evidence would have gone to the character of the complainant – whether this failure to cross-examine or lead evidence caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and the complainant had been drinking together – where the complainant became ill and went to bed – where the applicant then allegedly raped the complainant – where the applicant was unknown to the complainant until the night the offence took place – where the applicant was found guilty after trial of rape and sentenced to nine years imprisonment with parole eligibility set at 11 January 2018 – where the applicant had a good work history – where the applicant had only one prior offence – where the offending was described as opportunistic – whether the sentence was manifestly excessive

Criminal…

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 Burton

Details

AGLC: R v Burton [2014] QCA 37
Case: [2014] QCA 37
Decision Date: 7 March 2014

CaseChat Overview and Summary

The case of R v Burton involves an appeal against conviction and sentence following a trial for rape. The appellant was found guilty of raping the complainant and was sentenced to nine years imprisonment with parole eligibility set at 11 January 2018. The appellant contests the conviction on several grounds, including the trial judge's handling of expert evidence, the adequacy of jury directions, and the effectiveness of defence counsel. Additionally, the appellant challenges the sentence as manifestly excessive.

The legal issues before the court included whether the trial judge's handling of expert evidence and jury directions constituted a miscarriage of justice, and whether the failure of defence counsel to cross-examine or lead evidence regarding the complainant's character contributed to a miscarriage of justice. The court also had to consider whether the sentence imposed was manifestly excessive.

In assessing these issues, the court found that while there were some shortcomings in the handling of expert evidence and jury directions, they did not amount to a miscarriage of justice. The court determined that the trial judge's directions were sufficient to ensure the jury understood the need to be satisfied beyond reasonable doubt. The court also found that the defence counsel's failure to cross-examine or lead evidence about the complainant's character did not prejudice the appellant's case. However, regarding the sentence, the court held that it was manifestly excessive given the appellant's background and the nature of the offence. The court substituted a sentence of eight years imprisonment with parole eligibility set after serving half of the term.

The orders of the court were to grant leave to adduce further evidence, dismiss the appeal against conviction, grant leave to appeal against sentence, allow the appeal against sentence, and substitute the original sentence with an eight-year imprisonment term with parole eligibility set after serving half of that term.

Orders

Orders of the court

Grant leave to adduce further evidence.1.

Appeal against conviction dismissed.2.

Grant leave to appeal against sentence.3.

Appeal against sentence allowed.4.

Substitute for the sentence imposed on Count 1 on the indictment, a sentence of eight years imprisonment.5.

Order that the appellant be eligible for parole after service of one-half of that term.6.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Burton [2014] QCA 37
PARTIES:	R v BURTON, Grant (appellant/applicant)
FILE NO/S:	CA No 192 of 2013 DC No 1873 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2013
JUDGES:	Gotterson and Morrison JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant leave to adduce further evidence.1. Appeal against conviction dismissed.2. Grant leave to appeal against sentence.3. Appeal against sentence allowed.4. Substitute for the sentence imposed on Count 1 on the indictment, a sentence of eight years imprisonment.5. Order that the appellant be eligible for parole after service of one-half of that term.6.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where a doctor as an expert witness gave factual evidence and opinion evidence – where the trial judge gave directions that there was little reason to reject the opinion evidence – where the appellant contends that the opinion evidence was circumstantial – where the appellant contends that the trial judge failed to give further directions as to the treatment of such evidence – whether the lack of directions was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – GENERAL PRINCIPLES – where the trial judge directed the jury of the need to be satisfied beyond reasonable doubt of every element of the offence – where the appellant contends that the directions were insufficient as to the consent element – whether the directions were insufficient as to cause a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where the appellant contends that their defence counsel failed to cross-examine or lead evidence – where the evidence would have gone to the character of the complainant – whether this failure to cross-examine or lead evidence caused a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant and the complainant had been drinking together – where the complainant became ill and went to bed – where the applicant then allegedly raped the complainant – where the applicant was unknown to the complainant until the night the offence took place – where the applicant was found guilty after trial of rape and sentenced to nine years imprisonment with parole eligibility set at 11 January 2018 – where the applicant had a good work history – where the applicant had only one prior offence – where the offending was described as opportunistic – whether the sentence was manifestly excessive Criminal…