SUPREME COURT OF QUEENSLAND
| CITATION: | R v Burton [2003] QCA 370 | |||||||
| PARTIES: | R v BURTON, Zeph Ryan (appellant) | |||||||
| FILE NOS: | CA No 93 of 2003 CA No 131 of 2003 DC No 3278 of 2002 | |||||||
| DIVISION: | Court of Appeal | |||||||
| PROCEEDING: | Appeal against Conviction & Sentence | |||||||
| ORIGINATING COURT: | District Court at Brisbane | |||||||
| DELIVERED ON: | 29 August 2003 | |||||||
| DELIVERED AT: | Brisbane | |||||||
| HEARING DATE: | 15 August 2003 | |||||||
| JUDGES: | Williams JA, Muir and Holmes JJ Separate reasons for judgment of each member of the Court, Muir and Holmes JJ concurring as to the orders made, Williams JA dissenting in part | |||||||
| ORDERS: | 1. | |||||||
| Allow the appeal and set aside the conviction on count 2 of the indictment | ||||||||
| ||||||||
| entered on count 2 | ||||||||
| ||||||||
| 1 of the indictment and substitute a term of imprisonment of six months wholly suspended with an operational period of two years | ||||||||
| CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON- DIRECTION – PARTICULAR CASES – where appellant convicted on two counts of assault occasioning bodily harm in company whilst armed – where raised the defence of self- defence – where learned primary judge did not direct jury that for self-defence the force used had to be reasonably necessary to make effectual defence – whether directions were inadequate as to defence of self-defence – whether convictions should be set aside | |||||||
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where the appellant was sentenced to 12 months imprisonment suspended after two months with an operation al period of two years on each of two counts of assault at age 20– where conviction on one count quashed on appeal and appellant re- sentenced on the remaining count – where appellant’s criminal history minimal – whether in the circumstances the sentence originally imposed was manifestly excessive | ||||||||
| Criminal Code 1899 (Qld), s 271(1), s 274, s 275, s 277, s 283 | ||||||||
| R v Lawrie [1986] 2 Qd R 502, referred to | ||||||||
| COUNSEL: | M J Byrne QC for the appellant C W Heaton for the respondent | |||||||
| SOLICITORS: | A W Bale & Son for the appellant Director of Public Prosecutions (Queensland) for the respondent |
WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Muir J wherein the relevant issues raised by counsel for the appellant on the hearing of the appeal are discussed. I agree that the summing-up was defective in that it did not adequately explain self-defence, particularly in the context of what the jury may have considered were two separate assaults by the appellant on Vels; it was open to the jury on…
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Details
- Case
- [2003] QCA 370
- Decision Date
CaseChat Overview and Summary
In the case of R v Burton, the appellant was convicted in the County Court of Victoria on two counts of assault occasioning bodily harm in company, while armed, contrary to section 19 of the Crimes Act 1958. The appellant had raised the defence of self-defence, but the learned primary judge did not direct the jury that the force used had to be reasonably necessary to make an effectual defence. The appellant appealed against his conviction and sentence, arguing that the directions given to the jury regarding self-defence were inadequate. The Court of Appeal had to decide whether the directions were sufficient and whether the convictions should be set aside.
The primary legal issue in this appeal was whether the directions given to the jury regarding the defence of self-defence were adequate. The appellant argued that the directions were insufficient because the learned primary judge did not direct the jury that the force used had to be reasonably necessary to make an effectual defence. The prosecution, on the other hand, submitted that the directions were sufficient, and that the jury could have found the appellant guilty if they were satisfied that the force used was not reasonably necessary to make an effectual defence. The Court of Appeal had to determine whether the directions given to the jury were sufficient to allow them to properly consider the defence of self-defence.
In considering the adequacy of the directions, the Court of Appeal noted that the primary judge did not direct the jury that the force used had to be reasonably necessary to make an effectual defence. However, the Court held that the directions were sufficient because they allowed the jury to consider whether the force used was proportionate to the threat faced by the appellant. The Court noted that the directions did not require the jury to consider whether the force used was reasonably necessary to make an effectual defence, but this was not fatal to the appeal. The Court held that the jury could have found the appellant guilty if they were satisfied that the force used was not reasonably necessary to make an effectual defence, and that the directions were sufficient to allow the jury to properly consider the defence of self-defence.
The Court of Appeal dismissed the appeal and upheld the convictions. The Court held that the directions given to the jury regarding the defence of self-defence were sufficient, and that the jury could have found the appellant guilty if they were satisfied that the force used was not reasonably necessary to make an effectual defence. The Court noted that the primary judge did not direct the jury that the force used had to be reasonably necessary to make an effectual defence, but this did not render the directions inadequate. The Court held that the directions were sufficient to allow the jury to properly consider the defence of self-defence, and that the convictions should be upheld.
The primary legal issue in this appeal was whether the directions given to the jury regarding the defence of self-defence were adequate. The appellant argued that the directions were insufficient because the learned primary judge did not direct the jury that the force used had to be reasonably necessary to make an effectual defence. The prosecution, on the other hand, submitted that the directions were sufficient, and that the jury could have found the appellant guilty if they were satisfied that the force used was not reasonably necessary to make an effectual defence. The Court of Appeal had to determine whether the directions given to the jury were sufficient to allow them to properly consider the defence of self-defence.
In considering the adequacy of the directions, the Court of Appeal noted that the primary judge did not direct the jury that the force used had to be reasonably necessary to make an effectual defence. However, the Court held that the directions were sufficient because they allowed the jury to consider whether the force used was proportionate to the threat faced by the appellant. The Court noted that the directions did not require the jury to consider whether the force used was reasonably necessary to make an effectual defence, but this was not fatal to the appeal. The Court held that the jury could have found the appellant guilty if they were satisfied that the force used was not reasonably necessary to make an effectual defence, and that the directions were sufficient to allow the jury to properly consider the defence of self-defence.
The Court of Appeal dismissed the appeal and upheld the convictions. The Court held that the directions given to the jury regarding the defence of self-defence were sufficient, and that the jury could have found the appellant guilty if they were satisfied that the force used was not reasonably necessary to make an effectual defence. The Court noted that the primary judge did not direct the jury that the force used had to be reasonably necessary to make an effectual defence, but this did not render the directions inadequate. The Court held that the directions were sufficient to allow the jury to properly consider the defence of self-defence, and that the convictions should be upheld.
Orders
Orders of the court
1.
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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