Burrell v R - [2008] NSWCCA 276

New South Wales
Court of Criminal Appeal

CITATION: Bruce Allan Burrell v Regina [2008] NSWCCA 276

HEARING DATE(S): 10 September 2008

JUDGMENT DATE:
21 November 2008

JUDGMENT OF: Allsop P at 1; Johnson J at 25; Price J at 26

DECISION: 1. Grant leave to appeal from orders made by the Court on 16 November 2007.
2. Dismiss the application made on 10 September 2008 for orders in relation to the reasons of the Court of Criminal Appeal in R v Burrell [2007] NSWCCA 65 and [2007] NSWCCA 79.
3. Dismiss the appeal.

CATCHWORDS: PUBLICATION – non-publication order – evidence and submissions in previous applications and reasons for judgment – published in reported series available to public – whether prejudice – whether necessary and appropriate to protect future jury trial – whether necessary for utility of appeal procedure – whether error in refusing to make or continue order prohibiting publication of material – where further trial speculative.

CASES CITED: Burrell v R [2008] HCA 34; 248 ALR 428
John Fairfax Publications Pty Limited v Attorney-General (NSW) [2000] NSWCA 198; 181 ALR 694
John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
R v Burrell [2007] NSWCCA 79; 175 A Crim R 21
R v Burrell [2007] NSWCCA 65
R v Kanaan [2006] NSWCCA 109

PARTIES: Bruce Allan Burrell
Regina

FILE NUMBER(S): CCA 2007/5395

COUNSEL: D Dalton SC
M G Sexton SC & M L Rabsch
D R Sibtain (Media interests)

SOLICITORS: Steve O'Connor (Legal Aid Commission)
S Kavanagh (Director of Public Prosecutions)
Blake Dawson (Media interests)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC2401/2002

LOWER COURT JUDICIAL OFFICER: Barr J

LOWER COURT DATE OF DECISION: 16 November 2007

2007/5395

ALLSOP P
JOHNSON J
PRICE J
21 November 2008

BRUCE ALLAN BURRELL v REGINA

Judgment

1 ALLSOP P: This is an application for leave to appeal (and the concurrent hearing of the appeal should leave be granted) from orders made by a judge of the Court (Barr J) on 16 November 2007. During the hearing of the appeal another order was sought orally. Counsel for Mr Burrell reduced the order sought to writing. It was in the following terms:

On this the 10th of September 2008 the applicant Bruce Allan Burnell moves the Court for an order that:

1. The items of evidence which were not led or ruled to be inadmissible at trial referred to in the Judgments of this Court R v Burrell [2007] NSWCCA 65 and R v Burrell [2007] NSWCCA 79 be the subject of a non-publication order until further order of this Court.

2. The items of evidence so referred to Bruce Allan Burrell v Regina in those two respective Judgments are set out in the “Schedule of Matters Wrongly Taken into Account by Court of Criminal Appeal”.

2 The orders made by Barr J varied or vacated various orders made by Wood CJ at CL, himself (Barr J) and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burrell v R

Details

AGLC: Bruce Allan Burrell v Regina [2008] NSWCCA 276
Case: [2008] NSWCCA 276
Decision Date: 21 November 2008

CaseChat Overview and Summary

The matter of Burrell v R was heard by the High Court of Australia, involving a case of serious criminal conduct. The dispute centred around the non-publication order concerning evidence and submissions made in previous applications and the reasons for the judgment. The order had been published in a reported series accessible to the public, raising questions about potential prejudice to the defendant and the necessity of the order to protect future jury trials and the utility of the appeal procedure.

The court was tasked with determining whether the error in refusing to make or continue the non-publication order was significant enough to warrant a new trial, particularly given the speculative nature of any further trial. It examined the balance between the defendant's right to a fair trial and the public's right to access judicial decisions. The court considered the extent of the prejudice caused by the publication and whether the non-publication order was necessary to protect the integrity of the judicial process.

The High Court concluded that the publication of the material did not necessarily lead to a miscarriage of justice, as the prejudicial impact was not substantial enough to warrant a new trial. The court found that while the non-publication order was intended to protect the fairness of future jury trials, the speculative nature of any further trial did not justify overturning the previous judgment. The court emphasised the importance of the public's right to access judicial decisions, but also recognised the need to protect the integrity of the judicial process where significant prejudice might occur.

No orders were made to set aside the previous judgment or to grant a new trial, as the court determined that the error in not continuing the non-publication order did not prejudice the defendant to the extent necessary to warrant such relief.

Orders