Burrows v R [2012] NSWCCA 113

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Burrows v R [2012] NSWCCA 113 Hearing dates: 7 May 2012 Decision date: 04 June 2012 Before: Whealy JA at [1] Hidden J at [2] Schmidt J at [3] Decision: 1. Leave to appeal be granted. 2. The appeal be dismissed. Catchwords: CRIMINAL LAW - appeal - indecent assault and sexual intercourse with a child - whether the verdict was unreasonable and unsupportable on the evidence - whether verdict involved a miscarriage of justice because it involved an inconsistent verdict with the acquittal on count 2 in the indictment Legislation Cited: Criminal Appeal Act 1912 Cases Cited: MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 MFA v R [2002] HCA 53; (2002) 213 CLR 606 FB v Regina; Regina v FB [2011] NSWCCA 217 Category: Principal judgment Parties: Terrance Burrows (Applicant) Regina (Crown) Representation: Counsel: Mr A Metcalfe (Applicant) Ms M Cinque (Crown) Solicitors: O'Brien Solicitors (Applicant) S Kavanagh, solicitor for Public Prosecutions (Crown) File Number(s): 2009/248314 Publication restriction: None Decision under appeal Date of Decision: 2011-03-25 00:00:00 Before: Sweeney DCJ File Number(s): 2009/248314

Judgment 1WHEALY JA: I agree with Schmidt J. 2HIDDEN J: I agree with Schmidt J. 3SCHMIDT J: Terrance Burrows, the applicant, seeks leave to appeal his conviction on three charges. On 8 February 2011, he was convicted by a jury of counts 1, 3 and 4, having pleaded not guilty to the following charges: "Count 1: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her. (Section 61M(2) Crimes Act 1900) Count 2: On or about 31 October 2009 at Sylvania in the State of New South Wales, did have sexual intercourse with [the complainant], a child then under the age of 10 years, that is, of the age of 7 years. (Section 66A (1) Crimes Act 1900) In the alternative Count 3: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her. (Section 61M(2) Crimes Act 1900) Count 4: On or about 31 October 2009 at Sylvania in the State of New South Wales, did have sexual intercourse with [the complainant], a child then under the age of 10 years, that is, of the age of 7 years. (Section 66A (1) Crimes Act 1900) In the alternative Count 5: On or about 31 October 2009 at Sylvania in the State of New South Wales, did assault [the complainant], a person then under the age of 16 years, that is, of the age of 7 years, and at the time of the assault did commit an act of indecency on her." (Section 61M(2) Crimes Act 1900) 4Two grounds of appeal were pressed: "1. The verdict was unreasonable and unsupportable on the evidence. 2. The verdict involved a miscarriage of justice because it involved an inconsistent verdict with the acquittal on count 2 in the indictment." 5On a conviction appeal the Court's power is that given by s 6(1) of the Criminal Appeal Act 1912: "6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the applicant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."