Duane Charles Burgess v The Queen

IN THE SUPREME COURT OF NEW ZEALAND
SC 46/2008
[2008] NZSC 79
DUANE CHARLES BRENDAN PAUL BURGESS
v
THE QUEEN
Court:Elias CJ, McGrath and Wilson JJ
Counsel:R G Glover for Applicant

S B Edwards for Crown

Judgment:14 October 2008

JUDGMENT OF THE COURT

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
REASONS
[1]       The applicant appealed unsuccessfully to the Court of Appeal[1] against his conviction, after being found guilty by a jury, on charges of detaining the complainant without her consent with intent to have sexual connection and sexual violation by unlawful sexual connection. He now seeks leave to appeal to this Court on the grounds that the verdict was unreasonable and has resulted in a miscarriage of justice.
[1] [2007] NZCA 274.
[2]       The applicant has attempted to establish these grounds by an analysis of the evidence at trial, supplemented by inquiries by his present counsel (not his trial counsel), which purports to demonstrate that the applicant could not have been at the scene of the offending at the time of the offending.
[3]       The analysis does not demonstrate that proposition. It relies on the evidence of the police officer in charge of the prosecution that it took him 12 minutes to walk between the tavern at which the applicant had been filmed on security cameras and the bus stop where the offending had occurred, and the assertion of counsel that it had taken him 16 minutes to walk that route “at a brisk pace”. The complainant did however give evidence that the offender had run from the scene and, if the applicant were the attacker, he could obviously have run all or part of the way to the tavern and reached it much more quickly than if walking.
[4]       Whether the applicant could have been and was the offender were very much issues for the jury. It was entitled to conclude that he was. It is not the role of a final Court to embark upon a review of the strength of the evidence when the Court of Appeal has already given the issues careful consideration.[2]
[2]      Clifton v R [2005] NZSC 3.
[5]       It follows that the verdict was not unreasonable and it does not appear that a miscarriage of justice has occurred. The application for leave to appeal is therefore dismissed.
Solicitors:
Crown Law, Wellington

CaseChat Overview and Summary

Duane Charles Brendan Paul Burgess was unsuccessful in his appeal to the Court of Appeal against his conviction, following a jury's finding of guilt on charges of detaining the complainant without her consent with intent to have sexual connection and sexual violation by unlawful sexual connection. He now seeks leave to appeal to the Supreme Court of New Zealand, arguing that the verdict was unreasonable and has resulted in a miscarriage of justice. The applicant attempts to establish these grounds through an analysis of the evidence at trial, supplemented by inquiries by his present counsel, which aims to demonstrate that he could not have been at the scene of the offending at the time of the offending. However, this analysis does not convincingly demonstrate this proposition. The Court of Appeal had already given careful consideration to the issues, and it is not the role of the final Court to review the strength of the evidence.

The legal issues before the Court were whether the verdict was unreasonable and whether a miscarriage of justice had occurred. The Court found that the jury was entitled to conclude that the applicant was the offender, and that the verdict was not unreasonable. The Court was also satisfied that it did not appear that a miscarriage of justice had occurred. The Court relied on the precedent set in Clifton v R, where it was held that it is not the role of a final Court to embark upon a review of the strength of the evidence when the Court of Appeal has already given the issues careful consideration.

In light of the above findings, the Court dismissed the applicant's application for leave to appeal. The Court held that the verdict was not unreasonable and did not appear to result in a miscarriage of justice. Therefore, the appeal was dismissed, and no further leave to appeal would be granted.

The final orders of the Court were that the application for leave to appeal is dismissed, and no further leave to appeal would be granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established