Ross Andrew Burdon v The Queen

ROSS ANDREW BURDON
v
THE QUEEN
[2013] HCASL 63
C3/2013

The applicant was committed for trial before the Supreme Court of the Australian Capital Territory (Refshauge J) on an indictment charging him with the assault occasioning actual bodily harm of his wife. He elected to be tried by judge alone[1]. The trial commenced on 5 October 2010. On 6 October 2010 Refshauge J reserved his decision. On 1 June 2011 his Honour found the applicant guilty of common assault, a statutory alternative verdict[2]. On 26 July 2011 Refshauge J declined to record a conviction and released the applicant upon his undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months[3].
[1]Supreme Court Act 1933 (ACT), s 68B.
[2]Crimes Act 1900 (ACT), s 49.
[3]Crimes (Sentencing) Act 2005 (ACT), s 17.
The applicant appealed against the finding of guilt and sentence to the Court of Appeal of the Supreme Court of the Australian Capital Territory (Penfold, Burns and Marshall JJ). The appeal against sentence was not pressed on the hearing of the appeal[4]. The applicant was unrepresented on the hearing of his appeal. The Court made "some allowance for the inappropriate expression of the grounds of appeal", observing that in the course of the hearing it had become clear that the applicant's challenge was that the finding of guilt was "unsafe and unsatisfactory". The Court rejected the applicant's challenges to the delay in the delivery of judgment and allegations of bias. In their joint reasons, Burns and Marshall JJ rejected all save one of the applicant's many challenges to Refshauge J's factual findings. The one factual error was not of sufficient consequence to affect the verdict[5]. Their Honours were satisfied that it was open to Refshauge J to conclude that the applicant's guilt had been established beyond reasonable doubt. Penfold J in separate reasons came to the same conclusion[6].
[4]Burdon v The Queen [2012] ACTCA 54 at [15] per Burns and Marshall JJ.
[5]Burdon v The Queen [2012] ACTCA 54 at [72].
[6]Burdon v The Queen [2012] ACTCA 54 at [10].
The applicant seeks special leave to appeal on grounds which challenge the Court of Appeal's review of the factual findings. Nothing in the applicant's discursive written case calls into question the correctness of the decision. If special leave to appeal were granted the appeal would have no prospect of success.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
8 May 2013 S.J. Gageler

CaseChat Overview and Summary

The applicant, Ross Andrew Burdon, sought special leave to appeal his conviction for common assault by the Supreme Court of the Australian Capital Territory, as decided by the Court of Appeal of the Supreme Court of the Australian Capital Territory. The case involved an assault occasioning actual bodily harm of the applicant’s wife, tried by judge alone before Refshauge J. The applicant was found guilty of common assault, a statutory alternative verdict, and subsequently released upon undertaking to comply with good behaviour obligations. The applicant’s primary contention on appeal was that the Court of Appeal erred in upholding the primary judge's factual findings, which he argued were unsafe and unsatisfactory.

The legal issues in the case centered around whether the Court of Appeal correctly upheld the primary judge's findings and whether those findings were indeed unsafe and unsatisfactory. Specifically, the applicant argued that the delay in the delivery of judgment and potential bias by the trial judge undermined the integrity of the trial. Additionally, he challenged various factual findings made by the primary judge, asserting that these errors were significant enough to cast doubt on his conviction.

The High Court considered the applicant's challenges, noting that the Court of Appeal had made allowances for the applicant's unrepresented status and his inappropriate expression of grounds of appeal. The Court found no merit in the applicant's allegations of bias or delay in the delivery of judgment. Furthermore, the Court of Appeal had thoroughly reviewed the factual findings, concluding that any errors were not significant enough to affect the verdict. The High Court agreed with these findings, concluding that the applicant's appeal had no prospect of success. Consequently, the application for special leave to appeal was dismissed, and the Registrar was directed to draw up, sign, and seal an order dismissing the application.

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