Ross Andrew Burdon v The Queen

[2013] HCASL 63

ROSS ANDREW BURDON

v

THE QUEEN

[2013] HCASL 63
C3/2013

1. The applicant was committed for trial before the Supreme Court of the Australian Capital Territory (Refshauge J) on an indictment charging him with the assault occasioning actual bodily harm of his wife.  He elected to be tried by judge alone[1].  The trial commenced on 5 October 2010.  On 6 October 2010 Refshauge J reserved his decision.  On 1 June 2011 his Honour found the applicant guilty of common assault, a statutory alternative verdict[2].  On 26 July 2011 Refshauge J declined to record a conviction and released the applicant upon his undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months[3].

   [1]Supreme Court Act 1933 (ACT), s 68B.

   [2]Crimes Act 1900 (ACT), s 49.

   [3]Crimes (Sentencing) Act 2005 (ACT), s 17.

2. The applicant appealed against the finding of guilt and sentence to the Court of Appeal of the Supreme Court of the Australian Capital Territory (Penfold, Burns and Marshall JJ).  The appeal against sentence was not pressed on the hearing of the appeal[4].  The applicant was unrepresented on the hearing of his appeal.  The Court made "some allowance for the inappropriate expression of the grounds of appeal", observing that in the course of the hearing it had become clear that the applicant's challenge was that the finding of guilt was "unsafe and unsatisfactory".  The Court rejected the applicant's challenges to the delay in the delivery of judgment and allegations of bias.  In their joint reasons, Burns and Marshall JJ rejected all save one of the applicant's many challenges to Refshauge J's factual findings.  The one factual error was not of sufficient consequence to affect the verdict[5].  Their Honours were satisfied that it was open to Refshauge J to conclude that the applicant's guilt had been established beyond reasonable doubt.  Penfold J in separate reasons came to the same conclusion[6].

   [4]Burdon v The Queen [2012] ACTCA 54 at [15] per Burns and Marshall JJ.

   [5]Burdon v The Queen [2012] ACTCA 54 at [72].

   [6]Burdon v The Queen [2012] ACTCA 54 at [10].

3. The applicant seeks special leave to appeal on grounds which challenge the Court of Appeal's review of the factual findings.  Nothing in the applicant's discursive written case calls into question the correctness of the decision.  If special leave to appeal were granted the appeal would have no prospect of success. 

4. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
8 May 2013 S.J. Gageler