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R v Burton


[2002] QCA 50





R v Burton [2002] QCA 50


BURTON, Dion Edward


CA No 218 of 2001

DC No 429 of 1999


Court of Appeal


Appeal against Conviction


District Court at Ipswich


1 March 2002




4 February 2002


de Jersey CJ, McPherson JA and Douglas J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made


Appeal allowed; convictions set aside and verdicts of acquittal entered on both counts.


CRIMINAL LAW – Offences Against the Person

EVIDENCE – Matters relating to Proof – Identification Evidence – Sufficiency of Evidence - whether verdict of the jury was unsafe and unsatisfactory.

M v The Queen (1994) 181 CLR 487, applied


The Appellant appeared on his own behalf

C Heaton for the respondent


The Appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Douglas J.  I agree with the orders his Honour proposes, and with his reasons.
  1. McPHERSON JA:  I agree with the reasons of Douglas J for allowing this appeal, setting aside the convictions, and directing verdicts of acquittal to be entered on both counts in the indictment.  In view of the unsatisfactory state of the evidence, the verdicts of the jury on the critical issue of identity cannot be permitted to stand. There is no prospect that, if another trial were ordered, this critical problem could be overcome.
  1. The trial judge’s summing up, which was careful and clear, was not challenged on appeal. I would, however, caution against the use in summing up of the formula “if you decide that the identification is mistaken … you would have to acquit …”. It involves a risk of reversing the onus of proof by perhaps suggesting that, before acquitting, the jury may need to be persuaded that the identification was mistaken; instead of making it clear that they need, before convicting, to be satisfied that the identification was correct. In the result, however, the learned judge, immediately after saying what I have quoted above, went on to say that, unless satisfied by the evidence of identity, the jury were bound to acquit.
  1. DOUGLAS J:  The appellant was convicted in relation to events which occurred on 4 January 1999 on one count of grievous bodily harm with intent, and one count of assault occasioning bodily harm whilst armed and in company.
  1. The background to the offences was that the complainant, one Nguyen, believed the appellant to have stolen from him prior to 1 January 1999. In response to that, the complainant, his girlfriend Beggs, and others, including one Matheson, went to a house sometimes occupied by the appellant. The appellant was not present, but the complainant and his associates caused substantial damage to the windows of the house.
  1. In response to that, on the night of 4 January 1999, the appellant and his two co-accused, Ellem and Fox, went to the complainant’s house. The evidence revealed that Ellem called out for Matheson, who lived next door to the complainant and his girlfriend, and that the complainant and his girlfriend came out to see what was going on and spoke to Ellem. Upon being questioned they denied being responsible for doing damage to the house on 1 January.
  1. The Crown case was that at that stage the appellant and Fox came from behind a wall and, armed with pieces of long cylindrical wood, commenced to strike at Nguyen. He suffered significant, life threatening injuries as a result of the attack which led to count 1 on the indictment.
  1. During the attack, Beggs screamed at the attackers to stop. One of them came up to her and struck her a number of times in the leg and body. It was never clear on the evidence which of the two attackers that person was. However, that person then went back and rejoined in the continued beating on the disabled Nguyen. As a result of the blows delivered to her, Beggs suffered significant bruising to her leg and arm which led to count 2 on the indictment.
  1. The Crown case was that Nguyen recognised the appellant as one of his attackers, but was unable to identify the other attacker. He said that the appellant was known to him. Ellem, Fox and the appellant were tried together. In the result the jury convicted both Fox and the appellant on both counts, but acquitted Ellem on count 1.
  1. It was the Crown case that it was the appellant and Fox who did the actual attacking on Nguyen, and that it was one of them who attacked Beggs. None of the accused gave or called evidence, and there was little or no contest as to the events occurring in the way described by the complainants. The real issue at the trial was the identity of the offenders. The appellant’s case, as put by his counsel in cross-examination, was that he was not present at the time of the offences. Therefore it can be seen that the case against the appellant relied entirely upon the recognition by Nguyen of him, together with the evidence of the background and the association of the appellant with the others on the evening.
  1. A careful study of the evidence reveals that there were indeed three persons, other than the complainant and his girlfriend, at the complainant’s residence that evening. Two of them were certainly involved in the attacks, and the other appeared at times to be sitting or standing on a rubbish bin.
  1. As to identification of the appellant as one of the two involved in the assaults the evidence is, with respect, rather thin. The complainant himself could not remember how many people were there and appeared to rely upon the recollection of Beggs, whom he described as his “Missus”. He described his attackers as being “like shadows” and admitted that he did not “actually get to see their faces”. He described them as being dressed in dark clothing.
  1. Her Honour, the trial judge, in her summing up to the jury described the evidence, correctly, as follows:

“The matters that I am referring to are the following:

Firstly, it was dark, it was at night; Mr Nguyen had two to three seconds to observe the person, so a very short period of time; he was, of course, very badly assaulted that night and he said he has memory problems as a result; he had drug problems prior to 4 January; he had a dislike for Mr Burton; he was knocked unconscious that night; he, on the evidence of  Beggs, had a different coloured shirt to that that he was wearing that night and the following morning, because the police talk about him wearing a white shirt and Beggs talks about him wearing a dark shirt. Beggs wasn’t able to identify Burton, although she knew him.  Although, in regard to that, you’d bear in mind that Beggs was in a different position to Nguyen and she just saw shadows, so she couldn’t actually see the faces of the people.

  1. So, those are all factors that you would bear in mind. On the other hand, remember that Mr Burton is not said to be a stranger to Mr Nguyen. He was known to the accused and Nguyen had seen him on a number of occasions prior to that date. As I’ve already said, look at the identification not in isolation, but with all the evidence.
  1. The accused says that identification is mistaken and without it there is no evidence that he was there. Well, if at the end of the day you decide that identification is mistaken and that Setch’s evidence doesn’t really take you to the point where you can say Burton was with Fox and Ellem that night, then really there would be no evidence and you would have to acquit Mr Burton.”
  1. Furthermore, the only evidence given by the complainant as to identification was:

“Did you see if these men were carrying anything? – When I saw two men approach me – as soon as I turned my back like that and just go back where we were before, then I was hit right away.

I might get you to interpret this question for me, if you could – did you see if any of those men were carrying anything? – Actually I didn’t see it.

All right.  Did you look at the persons that came and bashed you? – As I said before, as soon as I turned my back – turned my head, I didn’t know exactly how many second was the time, I saw one person wearing hat, a t-shirt, I recognise that person, second person who jump over the fence, the one that attacked me other time I didn’t know what happened.

The one that you did recognise, who was that? – (Witness) It’s Dion Burton.”

  1. At the Appeal the argument adduced by the appellant, who appeared for himself, was in effect an argument that the verdict of the jury was unsafe and unsatisfactory. What must be established to succeed in such an argument has been discussed in many cases, in particular M v The Queen (1994) 181 CLR 487 at 493 where the majority (Mason CJ, Deane, Dawson and Toohey JJ) said:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

and at 494 where the Honours said:

“… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  Although the propositions stated in the four preceding sentences have been variously expressed in judgements of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

  1. With respect to the jury in this case, the only certain aspects of the evidence were that there were three persons other than the complainant and his girlfriend at the relevant premises that night, and that two of those persons were involved in the assaults upon the complainant and his girlfriend. It seems that Ellem may well have been the person standing or sitting on the rubbish bin, but it is far from clear which of Fox and Burton assaulted the complainant. In my view the verdict of the jury was, in the circumstances, unsafe and unsatisfactory, notwithstanding that the learned trial judge, in her summing up, gave all of the necessary and appropriate corrections, both as to matters of law and the evidence adduced at the trial.
  1. I would allow the appeal and order that the convictions be quashed. In my view this is not the appropriate case for a retrial to be ordered. I would accordingly direct that judgments and verdicts of acquittal be entered.

Editorial Notes

  • Published Case Name:

    R v Burton

  • Shortened Case Name:

    R v Burton

  • MNC:

    [2002] QCA 50

  • Court:


  • Judge(s):

    de Jersey CJ, McPherson JA, Douglas J

  • Date:

    01 Mar 2002

  • White Star Case:


Litigation History

EventCitation or FileDateNotes
Appeal Determined (QCA)[2002] QCA 5001 Mar 2002Appeal against conviction allowed; convictions set aside; verdicts of acquittal entered on both counts: de Jersey CJ, McPherson JA and Douglas J.

Appeal Status

Appeal Determined (QCA)

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