Burrows v The Queen - [2014] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND

CA361/2013
[2014] NZCA 296

BETWEEN	TIMOTHY HUGH FERGUSSON BURROWS Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	Appellant in person J M Jelas and K J Cooper for Respondent
Judgment:	4 July 2014 at 10 am

JUDGMENT OF THE COURT

AExtension of time to appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

Following a jury trial in the Manukau District Court Timothy Burrows was found guilty and convicted of two charges of injuring with intent to injure. The complainant was his former partner, Ms Husband. The charges arose from an argument between them during which Mr Burrows forced Ms Husband to the floor, strangled her and put his hand over her nose to prevent her from breathing then bit her arm. Count 1 related to the strangling/stifling and count 2 to the biting.
Judge Johns sentenced Mr Burrows on 3 July 2012. She imposed sentences of 18 months’ intensive supervision and 120 hours’ community work. She also required Mr Burrows to attend relationship counselling and an anger management programme as directed by his probation officer.[1] Mr Burrows appeals his convictions only.

Leave to appeal

[1]R v Burrows DC Manukau CRI-2011-092-11407, 3 July 2012 at [18]–[21].

Mr Burrows filed his notice of appeal on 4 June 2013, well out of time. He required leave, to which there was no objection from the Crown. We accordingly grant an extension of time and consider the substance of the appeal.

Appeal against sentence not pursued

The notice of appeal indicated that Mr Burrows was appealing both his convictions and sentence. At the hearing, however, he addressed only the points that related to his appeal against conviction. Since the sentence was well within the range for offending of this kind we do not need to consider that aspect further.

Grounds of appeal against convictions

Not all of the grounds of appeal against conviction that were identified in the notice of appeal were pursued in argument. In particular, Mr Burrows did not advance complaints about his counsel’s conduct of the defence or assertions of bias on the part of the Judge or the failure of the police to prosecute Ms Husband for other incidents. Mr Burrows’ argument before us can be summarised as a complaint of miscarriage of justice as a result of:
(a)Late disclosure of a second set of photographs received on the day of the trial;
(b)The trial Judge refusing to allow Mr Burrows to give evidence about a previous assault on him by Ms Husband; and
(c)An error in the summary of facts describing the relationship between Mr Burrows and Ms Husband as on again/off again when he asserts that it had ended.

Further evidence

The notice of appeal had also indicated that Mr Burrows wished to adduce further evidence in support of his appeal. In her minute dated 6 August 2013 French J noted this and…

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 Burrows v The Queen

Details

AGLC: Burrows v The Queen [2014] NZCA 296
Case: [2014] NZCA 296
Decision Date: 4 July 2014 at 10 am

CaseChat Overview and Summary

In Burrows v The Queen, the appellant, Timothy Hugh Fergusson Burrows, appealed his convictions for two charges of injuring with intent to injure his former partner, Ms Husband. The appeal was heard in the Court of Appeal of New Zealand, with Justices Harrison, Courtney, and Clifford presiding. The appeal against the convictions was dismissed, and an extension of time to appeal was granted. Mr Burrows was represented in person, while the Crown was represented by counsel.

The primary legal issues before the court were whether the late disclosure of a second set of photographs, the trial judge's refusal to allow Mr Burrows to give evidence about a previous assault by Ms Husband, and an error in the summary of facts describing the relationship between Mr Burrows and Ms Husband as ongoing when he asserts that it had ended, had any impact on the fairness of the trial or the outcome of the appeal.

The court held that the late disclosure of the second set of photographs could not have affected the fairness of the trial, as Mr Burrows had been offered an adjournment to consider the matter further but had declined. The court also found that the trial judge's intervention to exclude inadmissible evidence was not objectionable, as it was merely a direction to ensure that the evidence was admissible. Finally, the court held that the reference to the ongoing relationship in the summary of facts could not have made any difference to the outcome of the trial, as it was of peripheral significance.

As a result of the court's reasoning, the appeal against conviction was dismissed, and the convictions were upheld. The court granted an extension of time to appeal, but did not provide any specific orders beyond that.

Orders