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Judges Dismiss Mrs.
Burrows's Appeal
CASE WILL GO TO HIGH
COURT OF AUSTRALIA
FAILURE ON
ALL COUNTS
IS JUDGMENT
Appeal of Mrs. Evelyn Florence Burrows
against her conviction for the murder of her
husband, Henry John Burrows, at Dalkieth on
the night of March 18, was dismissed today by
the Court of Criminal Appeal.
It is understood that counsel for the woman
will ask for leave to appeal to the High Court of
Australia.
If that is done the case will come before
the judges of the High Court who will pay their
annual visit to this State in September.
Since sentence of death was recorded against her
by Mr. Justice Dwyer on April 15, Mrs. Burrows has been
in the condemned cell at Fremantle gaol. . .In the event
of an appeal to the High Court she will remain there for
at least another three months.
When the Chief Justice (Sir John Northmore) and
Mr. Justice Draper and Mr. Justice Dwyer took their
places on the Bench today there was a big gathering of
the legal fraternity but remarkably few of the general
public were in the gallery.
Mr. Norbert Keenan, K.C.,
who with Mr. F. Curran,
appeared for Mrs. Burrows at
the hearing of the appeal and
the Crown Prosecutor (Mr. C.
B. Gibson) were the only
robed and bewigged barristers
at the tables.
Mrs. Burrows's father was the
..lone occupant ot a form ??-??*£- - the
eastern side of the court..
After Sir John Northmore had
given his judgment the two other
judges did not speak.
The Chief Justice gave judgment as
follows: —
'The appellant was . convicted of the
murder of her husband, Henry John
Burrows, with a' strong recommenda
tion to mercy. As a result she was not
sentenced to death, but a sentence of
death was recorded against her.
Against that conviction she brings this
appeal. It is not a ground of the ap
peal that the verdict was against the
evidence as it stands, but' it is said (1)
that the trial judge misdirected the
jury in point of law; ' (2) that he
wrongly admitted evidence in rebuttal;
and (3) that he misdirected the jury
on the evidence, with the result that
the trial resulted in a miscarriage of
justice. A further ground put forward
is that additional evidence has been
ascertained.
DIRECTION ON
'DOUBT'
Under the first head the complaint
is in these words: 'The learned judge
misdirected the jury by not directing
them that if they had any reasonable
doubt that I was guilty, I was entitled
to the benefit of that doubt and had a
right to a verdict of not guilty.' It is a
fact that the learned judge did not
use the words 'reasonable doubt,' and,
if the law required those actual words
to be used in directing a jury in a
criminal case, the first point raised by
the appellant would necessarily be de
cided in her favor.
The law, as I understand it, is that
in criminal cases the onus is upon
the Crown to prove the charge it
makes against the accused. The
accused is deemed to be innocent
until he is proved guilty. The
Crown must prove the guilt of the
accused, and therefore, if in the
minds of the jury the evidence of
the* Crown falls short of that proof,
the accused is entitled to be ac
quitted.
Jn practice that position is common
ly put to. the jury by directing them
that the Crown must satisfy them as
to the guilt of the accused 'beyond all
reasonable doubt'; but the counsel for
the appellant has been unable to point
to any authority for the proposition
that those specific words are the only
words adequate to define the degree of
certainty as to the guilt of the ac
cused that the criminal law requires to
warrant a conviction.
CASES CITED
Cases were cited — for instance Brown
y. the King and Hicks v. the King —
in which those words were discussed,
but in each of those cases the woi-ds
'reasonable doubt' were in fact used
by the judge in his charge,. but in each
case he had attempted to explain to the
jury what was meant by the words, and
in each case opinions were expressed
that the explanation amounted to a
misdirection. On the other hand it
was decided in the case of Walter
Sykes (8 C.A.R., p. 233) that the doc
trine of 'reasonable doubt' may be
conveyed to the jury in any adequate
language and that case was decided
by a court which included the late Mr.
Justice Avory, who was a most experi
enced judge in criminal cases. Again
in the case of Wittig v. the King (27
C.L.R. 158). an application for special
leave to appeal to the High Court on
the ground of misdirection because the
trial judge had not used those words
was dismissed.
(Continued in Page. 2, Col. 3)

Burrows Appeal (From Page 1)
COURT DOES NOT
UPHOLD 'DOUBT'
CONTENTION

With the decision in Sykes' case
I respectfully agree and I proceed
therefore to consider whether in
the present case the* language used
by the trial judge was adequate to
convey to the jury the doctrine of
'reasonable doubt.'
In considering that question ib is
well to remember that the particular
passage objected to was not an isola
ted statement of the judge, but formed
part of a somewhat lengthy summing
up in the course of which he, on more
than one occasion, emphasised the fact
that it was the duty of the Crown to
prove the guilt of the accused and that
the burden was on the Crown to prove
that the death of the deceased was not
the result of an accident. The actual
words of the learned judge were 'The
burden of proof is on the Crown. The
defence is that it was an accident. It
is not necessary that she should prove
there was an accident, but if you have
any substantial doubt that she is guilty,
then she is entitled to the benefit of
that doubt. You should not be wor
ried by a mere shadow, or scintilla of
doubt. Nothing in this world is abso
lutely certain.'
NOT EASY TO
DEFINE
It has been pointed out by more than
one judge that it is not an easy matter
to define what is meant by 'a reason
able doubt,' but in the case of 'Brown
v. The King, Mr. Justice Isaacs (as he
then was) did essay the task. The de
finition which he gave was that if the
jury after considering the evidence, find
that there exists in their minds 3 resi
duum of doubt as to the guilt of the
accused — not a mere conjectural, vision
ary doubt, or a doubt arising from the
bare possibility of his innocence, but a
real doubt, then their doubt is a icason
able doubt wiihin the meaning of the
rule.
In the passage complained of in this
case the judge used the words 'sub-«
stantial doubt' in contradistinction to
'a shadow or scintilla of doubt.'
In the Oxford dictionary the
word 'real' is given as one of the
meanings of the word 'substantial,'
and in my view the plain meaning
of the passage complained of is
that the accused was to have the
benefit of any real doubt as op
- posed to a conjectural or visionary
doubt.
? In my opinion the words used by the
trial judge in this case were adequate
to inform the iurv as to the deeree of

certainty which it was the duty of the
Crown to bring home to their minds,
and the absence of which would entitle
the accused to an acquittal, and that
the use of those words, and the failure
to use the words 'reasonable doubt,'
did not amount to a misdirection.
Assuming, however, that the view
I have taken be wrong, the proviso to
sub-section (1) of Section 689 falls to
be considered. The proviso reads as
follows: 'Provided that the Court may,
notwithstanding that they are of opinion
that the point raised in the appeal
might be decided in favor of the ap
pellant, dismiss the appeal if they con
sider that no substantial miscarriage of
justice has actually occurred.'
'DIDN'T AFFECT
VERDICT
I have perused with some care the
notes of evidence in this case and have
read the learned judge's charge to jury,
and I can feel no doubt that the sub
stitution of the words - 'reasonable
doubt' for the words used by the judge

would not have affected the verdict at
which the jury arrived, and that there
fore in any case no substantial : mis*
carriage of justice actually occurred.
The next ground of appeal is stated
in these words 'The learned judge
wrongly admitted the evidence of De
tective Cannon in rebuttal of my evi
dence.'
It is difficult to understand the face
of this complaint. It is admitted that
the evidence of Detective Cannon was
called in rebuttal of the accused's evi
dence. The fact is that the evidence
of the accused introduced new matter,
and it is beyond argument that in such
circumstances a judge has a discretion
ary power to admitting evidence in re
buttal.
Although nothing was said in the no
tice of appeal about setting a trap, at
tention was called, during the argu
ment, to some words appearing in the
judgment of Mr. Justice Darling in
Crippen's case to the effect that the
court reserved to itself full power .to
deal with the matter if in any case it
should be shown that the prosecution
had done something unfair, that is set
something unfair, that is set some
thing in the nature of a trap.
It is sufficient to say that those
observations have no application to
the facts of this case, that here
there was nothing unfair, nothing
in the least resembling a trap.
I come now to the complaints of
misdirection which are contained in
paragraphs 4, 5, 6 and 7 of the notice
of appeal.
The particulars under this head were
drawn in reliance upon the transcript
of a shorthand note of the sutnming
up, which, unfortunately contained a
number of verbal inaccuracies, some of
which put a different complexion upon
the passages alleged to be misdirec
tions.
OBSERVATIONS
BY JUDGE
Moreover many of the excerpts from
the summing up were observations by
the judge upon the contentions and
comments made by council at the trial
and were not directions on matters ap
pearing in evidence. Others again
were expressions of opinion by the
learned judge on the facts in evidence.
It seems to have been overlooked,
in the drafting of the particulars of al
leged misdirection, that a judge is fully
entitled to express his opinions upon
the effect of the evidence, provided
that he makes it clear to the jury that
it is only his opinion, and is in no way
binding upon, arid may be disregarded
by them.
In the present case the learned
judge made that fact abundantly
clear to the jury at the beginning
of his summing up, and he im
pressed upon them again and a pain
that it was for them to decide for
themselves upon the facts.
In short I think I cannot do better
than to quote and adopt the opening
remarks of the judgment in the Sykes'
appeal, already referred to, which are
apt to the facts of the present case.
In giving the judgment of the Court
in that case, the learned judge said:
'This is another of the cases where
counsel, endeavoring to do all that is
possible for his client, attacks the
summing up and suggests that there
has been misdirection. I think the term
is loosely Used, for comment on facts
properly stated to the jury is uot mis
direction. Here we have heard all that
can be said, and read the shorthand
notes of the case, and it is not possible
to say the summing up contained any
misdirection.'
There remains only the ninth ground

of appeal, which is that additional evi
dence 'has been ascertained. In order
that a new trial may be granted on that
ground it is necessary that the appel
lant should show (1) that the proposed
evidence could not have been obtained
with reasonable diligence at the trial,
and (2) that it is of «uch importance
as very probably to influence the ver
dict.
In my opinion the proposed ad
ditional evidence answers neither
of those tests.
It is directed to show that on the
night in question there were two shots
fired at an interval of a few seconds,
and that there was nothing in the na
ture of cries after the first shot. The
proposed witness — Edgar Sumption — is
the man whose assistance the appel
lant sought almost immediately after
the shooting. At least two witnesses had
deposed at the inquest, and subsequent
ly at trial, to the opposite effect,
viz.. that human cries were hearc
after the first and before the second
shot.
If the contrary were true the ap
pellant must have known it, and
In that case surely no time would
have been lost in seeking informa
tion from {Sumption on the point. At
any rate, it is clear that Sumption's
evidence could have been obtained
by the Exercise of reasonable dili
gence.
But in any event, bearing in mind
the oral evidence, and the written
statements which the jury had before
them, it is. I think, impossible to say
that Sumption's proposed evidence
would probably have influenced the
verdict at which they arrived.
The appeal, having failed on every
ground, will therefore be dismissed.

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