Ross Andrew Burdon v The Queen - [2012] ACTCA 54

ROSS ANDREW BURDON v THE QUEEN
[2012] ACTCA 54 (21 December 2012)

APPEAL – Appeal against conviction – Unsafe and unsatisfactory – Findings open to the trial judge – Appeal dismissed.

APPEAL – Appeal against conviction – Unsafe and unsatisfactory – Specific error – Error not a material fact – Appeal dismissed.

Crimes Act 1900 (ACT), s 49
Crimes (Sentencing) Act 2005 (ACT), s 17

Supreme Court Act 1933 (ACT), ss 68B, 37O

M v The Queen (1994) 181 CLR 487
The Queen v Ross Andrew Burdon [2011] ACTSC 90 (1 June 2011)
Haros v Linfox Australia Pty Ltd [2012] FCAFC 42

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 32 – 2011
No. SCC 336 of 2009

Coram: Penfold, Burns and Marshall JJ
Court of Appeal of the Australian Capital Territory

Date: 21 December 2012

IN THE SUPREME COURT OF THE     )
  )          No. ACTCA 32 - 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 336 of 2009

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROSS ANDREW BURDON
Appellant

AND: THE QUEEN
Respondent

ORDER

Coram:  Penfold, Burns and Marshall JJ
Date:  21 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

The sentence imposed by Refshauge J is confirmed.

IN THE SUPREME COURT OF THE     )
  )          No. ACTCA 32 - 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 336 of 2009

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROSS ANDREW BURDON
Appellant

AND: THE QUEEN
Respondent

Coram:  Penfold, Burns and Marshall JJ
Date:  21 December 2012
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J:

I agree with Burns and Marshall JJ that the appeal must be dismissed, and largely for the reasons their Honours give. However, I have a slightly different view about one of the appellant’s complaints about the trial judge’s findings.

The appellant had several complaints about the trial judge’s approach to the mechanics of the incident in which the complainant was said to have sustained red marks around her neck. His Honour the trial judge said at [172]-[174]:

I found it quite difficult to understand how Mr Burdon was explaining the incident in his sworn evidence before me. He said that Mrs Burdon was poking him in the chest. She must then have been in front of him. He then says she grabbed his hair. That must have been from in the front. He then says she was behind him, but I found it really hard to see how that occurred.
He then said that he reached behind him and pulled on her scarf, apparently to steady himself. This is inconsistent with his concession that he may have pulled her off the ground.
His evidence then was that Mrs Burdon fell over, but if Mrs Burdon was behind him and pulling his hair and he was hanging on to her scarf –…

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.

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Details

Case: [2012] ACTCA 54
Decision Date

CaseChat Overview and Summary

Ross Andrew Burdon appealed his conviction for common assault against The Queen in the Court of Appeal of the Australian Capital Territory. The appeal concerned the trial judge's findings of fact regarding the physical altercation between the appellant and the complainant, his wife, which resulted in red marks around the complainant's neck. The appellant argued that the trial judge's findings were unsafe and unsatisfactory, and that specific errors were made in assessing the evidence.

The primary legal issue before the Court of Appeal was whether the trial judge's verdict of guilty for common assault was unsafe or unsatisfactory, notwithstanding that there was evidence to sustain it. This required the Court to assess whether, upon the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty. The appellant also raised specific complaints about the trial judge's interpretation of the sequence of events, the appellant's explanation for not falling with the complainant, and alleged factual errors in the trial judge's reasons.

The Court of Appeal, comprising Penfold, Burns, and Marshall JJ, dismissed the appeal. While acknowledging a minor factual error in the trial judge's reasons, the majority found that the trial judge was entitled to reject the appellant's evidence regarding the mechanics of the incident, particularly his explanation for not falling with the complainant. The Court emphasised that the trial judge, having heard and seen the witnesses, was not obliged to accept the appellant's version of events and was permitted to find inconsistencies. The Court concluded that, on the totality of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt of the appellant's guilt for common assault, and that no substantial miscarriage of justice had occurred.

The Court ordered that the appeal be dismissed and the sentence imposed by the trial judge be confirmed.

Orders