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Court of Criminal Appeal 10 September 2003

R v Burt

[2003] NSWCCA 248

Also reported as 140 A Crim R 555
Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION ASSAULT WITH AN ACT OF INDECENCY MURRAY DIRECTION

Citation: R v Burt [2003] NSWCCA 248
Court: Court of Criminal Appeal, New South Wales
Date: 10 September 2003
Judge(s): Wood CJ at CL, Greg James J, Howie J

Background

The appellant was convicted in the Bathurst District Court before Nield DCJ and a jury on five counts of assault with an act of indecency and one count of attempted sexual intercourse without consent. All offences related to a single incident on 26 October 2001 at the complainant's home. The complainant, who was 17 at the time, gave evidence that the appellant had made threats of physical violence and compelled him to participate in a series of sexual acts.

The appellant received a total effective sentence of three years imprisonment with a non-parole period of 18 months. He then appealed to the Court of Criminal Appeal, challenging his convictions on several grounds relating to the adequacy of the trial judge's directions to the jury.

  • Whether the trial judge's directions on the standard of proof were adequate, or whether they implicitly suggested that the jury need only prefer the complainant's version over the appellant's without applying the beyond reasonable doubt standard throughout.
  • Whether the absence of a so-called "Murray direction" (a direction to scrutinise the complainant's evidence with particular care in sexual assault cases involving a contest between complainant and accused) resulted in a miscarriage of justice.
  • Whether the failure to direct the jury on the element of the accused's knowledge of, or recklessness as to, the complainant's lack of consent caused a miscarriage of justice in relation to the assault counts.
  • Whether the same omission in relation to the attempted sexual intercourse without consent count also caused a miscarriage of justice.

Decision

On the standard of proof ground, the Court found that the summing up maintained a proper balance. The jury had been directed in a way that would have prevented them from simply choosing between two versions of events without applying the beyond reasonable doubt standard to the Crown's case, having regard to all the evidence including the appellant's account. Leave to argue this ground was refused.

On the Murray direction ground, the Court accepted that such a direction would have been desirable. However, the summing up had made clear to the jury the need to examine the complainant's evidence with great care. Given the circumstances of the trial as a whole, the absence of a formal Murray direction did not warrant leave being granted.

On the knowledge and recklessness grounds (Grounds 3 and 4), the Court noted that no direction on these elements had been requested at trial by defence counsel, who were described as competent and thorough. A consistent line of authority establishes that leave to challenge a conviction based on an undirected element will not be granted unless the omission caused a miscarriage of justice, and the burden of proving that miscarriage rests on the appellant. Given that the complainant's evidence of threats, physical resistance, and forced participation went directly to the question of non-consent, the Court was not persuaded that directions on knowledge or recklessness would have changed the outcome. Leave to argue both grounds was refused and the appeal was dismissed.

Orders Made

  • Leave to argue Grounds 1 to 4 refused.
  • Appeal dismissed.

Key Takeaways

  • A Murray direction (directing the jury to scrutinise a complainant's evidence with special care in sexual assault cases) is desirable where the outcome turns on a credibility contest, but whether it is strictly required depends on the circumstances of the individual trial.
  • Challenging a conviction on appeal by pointing to a direction not given at trial faces a significant threshold: the appellant must establish that the omission caused a miscarriage of justice, and the Court of Criminal Appeal confirmed that this burden sits firmly with the appellant.
  • Where experienced defence counsel did not seek a particular direction at trial, and no explanation for that omission is offered on appeal, the Court of Criminal Appeal will draw the inference that the direction was not perceived as necessary in the context of the case as it was actually fought.
  • In dismissing the appeal, the Court reaffirmed that appellate review is not a microscopic search for technical omissions, and that not every omission from a summing up will render a conviction unsafe.
  • The primary factual contest at trial (whether the complainant was forced into the acts) was thoroughly addressed in the summing up, and the absence of directions on the secondary element of knowledge or recklessness did not, on these facts, produce an unjust result.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L

Cases:
- BRS v The Queen (1997) 191 CLR 275
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- Holland v The Queen (1993) 117 ALR 193
- Liberato v The Queen (1985) 159 CLR 507
- R v Bonora (1994) 35 NSWLR 74
- R v Button (2002) 54 NSWLR 455
- R v Chai [2002] 76 ALJR 628
- R v Connors [2000] NSWCCA 470
- R v ITA [2003] NSWCCA 174
- R v Kuckailis [2001] NSWCCA 333
- R v Murray (1987) 11 NSWLR 12
- R v PAH, NSWCCA 10 September 1998
- Saffron v The Queen (1988) 17 NSWLR 395