R v Burgess - [2007] NZCA 274

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA65/07 [2007] NZCA 274

THE QUEEN

v

DUANE CHARLES BRENDON PAUL BURGESS

Hearing: 25 June 2007
Court: Ellen France, Rodney Hansen and Ronald Young JJ Counsel: D C Ruth for Appellant
S B Edwards for Crown

Judgment: 3 July 2007 at 11 am

JUDGMENT OF THE COURT

Extension of time granted but appeal dismissed.

REASONS OF THE COURT

(Given by Ronald Young J)

R V BURGESS CA CA65/07 3 July 2007

[1] The appellant was found guilty by a jury in December 2006 of detaining the complainant without her consent with intent to have sexual intercourse (s 208(b) Crimes Act 1961) and sexual violation by digital penetration of her genitalia (s 128(1)(b) Crimes Act 1961). He was acquitted on a count of demanding money with menaces (s 239(2) Crimes Act 1961). The appellant was sentenced by Judge Holderness (the trial Judge) to seven years imprisonment with a minimum period of imprisonment of three and a half years.

[2] The appellant seeks an extension of time to file the appeal maintaining:

(i)The evidence of timing of various events given at trial meant the convictions are unsafe (s 385(1)(a) Crimes Act 1961);

(ii)The failure of trial counsel to cross-examine the doctor who gave evidence resulted in a miscarriage of justice.

[3] The delay in filing the appeal was less than one month. In the circumstances, the Crown does not oppose the granting of an extension of time.

Background facts

[4] The complainant was 14 years old at the time of these events On

12 August 2005, at about 8.00 p.m., she was waiting at a bus stop near her home. The appellant walked past the complainant and went into a dairy near the bus stop. He purchased an ice-cream and returned to the bus stop where he briefly spoke to the complainant about when the next bus was due. After some remarks about her body the appellant grabbed the victim by the arm and pulled her under a nearby tree. He demanded money from her and threatened her if she refused. The appellant then put his hand down the victim’s jeans and inside her underpants and inserted a finger or fingers into her vagina. This continued for several minutes until the appellant ran off. The appellant denied the offending. He initially denied being in the area at the time but later admitted he had been in the area.

First ground of appeal

[5] The appellant submits that a careful consideration of the timing of various events reveals that “the actual window of opportunity for these incidents to have occurred is not impossible but highly improbable”. The appellant says the chronology of events including their timing is:

(i) At 8.00 p.m., the complainant left her home for the bus stop.

(ii)At 8.02 p.m. (approximately), the complainant arrived at the bus stop and was due to catch the 8.15 p.m.…

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 R v Burgess

Details

AGLC: R v Burgess [2007] NZCA 274
Case: [2007] NZCA 274
Decision Date: 3 July 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to review the conviction and sentence of Duane Charles Brendon Paul Burgess, who was found guilty of detaining a complainant without her consent with intent to have sexual intercourse and of sexually violating her by digital penetration of her genitalia. Burgess was acquitted on a count of demanding money with menaces. The appellant appealed against his conviction and sentence, seeking an extension of time to file the appeal on the basis that the evidence of timing of various events given at trial meant the convictions were unsafe, and that the failure of trial counsel to cross-examine the doctor who gave evidence resulted in a miscarriage of justice. The Court considered the appellant's arguments and concluded that the jury was entitled to find that there was ample time for the events to have occurred, and that there was no evidence that the doctor's failure to cross-examine resulted in a miscarriage of justice. The Court granted an extension of time for filing the appeal but dismissed the appeal.

The legal issues before the Court were whether the evidence of timing of various events given at trial meant the convictions were unsafe, and whether the failure of trial counsel to cross-examine the doctor who gave evidence resulted in a miscarriage of justice. The Court found that the jury was entitled to conclude that there was ample time for the events to have occurred and that there was no evidence that the doctor's failure to cross-examine resulted in a miscarriage of justice. The Court rejected the appellant's arguments and dismissed the appeal.

In reaching its decision, the Court considered the evidence given at trial and the arguments presented by the appellant and the Crown. The Court found that the jury was entitled to accept the evidence of the complainant and other witnesses, and that there was ample evidence to support the convictions. The Court also found that there was no evidence that the doctor's failure to cross-examine resulted in a miscarriage of justice, as there was no evidence that any trauma to the complainant would have been likely in these circumstances.

The Court granted an extension of time for filing the appeal but dismissed the appeal. The appellant's conviction and sentence were therefore upheld.

Orders