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 Kirby J from May 2003 to July 2007, which orders had suppressed publication of various documents and certain information in connection with the criminal trials of Bruce Allan Burrell. The effect of Barr J’s orders on 16 November 2007 was to lift the suppression of the material and make it available to the public and the press. The application for the orders made by Barr J was made by News Limited and certain other media interests. His Honour stayed the operation of his orders pending any application for leave to appeal, in order to preserve the subject matter of the appeal.

3 The suppression orders the subject of Barr J’s order of 16 November 2007 were conveniently described in [6] and [7(iii)] of his Honour’s reasons:

[6] … An examination of the Court record indicates that, relevantly, these orders were made -
(i) On 1 May 2003 Wood CJ at CL ordered that certain subpoenas be set aside and ordered that his Honour’s reasons for judgment be suppressed until completion of the trials of the accused for the murder of Mrs Whelan and for the murder of Mrs Davis, provided the trials were not stayed. Further suppression of the publication of proceedings was ordered to be determinable by the judge hearing the stay applications.
(ii) On 30 June 2003 Whealy J noted that there were motions for a stay of proceedings on the indictments, for an order for joint trials and concerning the admission of evidence. His Honour ordered that publication of the statements and affidavits filed by the Crown as well as written and oral submissions be suppressed.
(iii) On 22 September 2003 Wood CJ at CL continued the orders of 30 June 2003.
(iv) On 19 December 2003 Wood CJ at CL delivered judgment on the admission of evidence and on the application for a stay of proceedings. His Honour ordered non-publication of the reasons until further order.
(v) On 4 July 2005 I dealt with a motion for an order under the complex trials legalisation. I ordered that the evidence be not published and that there be no mention of the trial of the murder of Mrs Davis.
(vi) On 20 October 2005, immediately after the first Whelan jury retired, I ordered that there be no publication of evidence adduced in the trial in the absence of the jury. I ordered that there be no publication of the fact that Mr Burrell faced a further charge.
(vii) On 6 March 2006 I gave judgment on an application to disallow cross-examination of police and ordered that the reasons be published only to the parties. I ordered that evidence and submissions adduced on that issue be not published.
(viii) On 24 May 2006 I made an order continuing existing non-publication orders.
(ix) On 8 June 2006 I varied the order of 20 October 2005 to permit publication of the fact that Mr Burrell faced a charge that on or about 30 May 1995 he murdered Dorothy Ellen Davis.
…
[7(iii)] On 6 August 2007, having heard evidence and argument upon an application for an order staying proceedings, [Kirby J] gave judgment dismissing the motion for the stay and directing that the trial proceed. His Honour ordered that the publication of the reasons for the judgment should be confined to the parties.

4 As the above description of the orders makes apparent, the suppression orders concerned material (both evidence and submissions) placed before the Court in relation to various applications, including stay applications and the reasons for judgment in those applications.

5 The history of the related proceedings is a long one. The outline given by the primary judge in [1]-[4] of his reasons gives much of the background:

[1]…This is an application by News Limited and certain other organs of the news media for an order vacating orders which have been made from time to time forbidding publication of material concerning the respondent Bruce Allan Burrell. Years ago, Mr Burrell was committed to this Court for trial on charges that he murdered Mrs Dorothy Davis on 30 May 1995 and that he kidnapped Mrs Kerry Whelan on 6 May 1997 and murdered her on or about that day. It was always the Crown’s intention to have Mr Burrell tried first for the kidnap and murder of Mrs Whelan, even though the events giving rise to those charges happened after the death of Mrs Davis. Extensive objections were taken to the receipt of evidence in that trial. Much evidence was received in the absence of the jury. Many judgments were published by several judges determining that identified pieces or bodies of evidence would or would not be allowed into evidence. Other issues were determined as well, including applications for the trial to be stayed or postponed. Since all those hearings and judgments took place in the absence of the jury it was, on ordinary principles, inappropriate for them to be publicised lest the jury learn of matters not to be put before them at trial, with the risk of a consequential miscarriage of justice. Some judgments were expressly restricted in their publication but most were not. The first trial of Mr Burrell on the Whelan charges ensued, but the jury were unable to agree and were discharged without verdict. There was a second trial, at the conclusion of which the jury found Mr Burrell guilty of both offences. During both trials evidence adduced in open court before the jury was reported on in the normal way. The jury verdicts were reported on in the normal way, as was evidence received on sentence and the sentences themselves.
[2] Ordinarily there might have been no difficulty after the jury verdicts about reporting evidence adduced in the absence of the jury, together with submissions and judgments thereon. There was, however, the anticipated trial of Mr Burrell on the charge of having murdered Mrs Davis. It was necessary for some substantial time to elapse after the cessation of reporting of the Whelan trial and the commencement of the Davis trial. It was also made clear, whether by express order or by request, and the difference does not now seem to me to matter, that the ordinary rule about the publication of interlocutory material ought not to apply to the Whelan trial. That is why there has to this day been no publication of evidence, submissions or judgments in interlocutory applications in the Whelan trial.
[3] More than a year went by between the end of the Whelan trial and the commencement of the Davis trial. Members of the news media made full contemporary reports of the verdicts, evidence and sentences at the Whelan trial, but after that there was no further reference to the reportable material in the Whelan trial. That was in anticipation of the forthcoming Davis trial.
[4] In the Davis trial, Kirby J decided interlocutory questions in the absence of the jury, hearing applications, receiving evidence and submissions and giving judgment. As before, it was inappropriate to publish that matter before the jury delivered its verdict. There was accordingly no publication of that matter though evidence before the jury was fully reported. The jury found Mr Burrell guilty. That too, was reported. Mr Burrell was convicted and remanded for sentence.

6 Mr Burrell appealed to the Court of Criminal Appeal against his convictions and sentences resulting from the Whelan trial. That appeal was dismissed by the Court of Criminal Appeal. Those orders were set aside by the High Court ([2008] HCA 34; 248 ALR 428) and the appeal was remitted to the Court of Criminal Appeal for rehearing. The appeal is to be reheard in December 2008. An appeal in the Davis matter is on foot. Before turning to the primary judge’s reasons, it is convenient to deal with the order sought at the hearing. No notice was given to the Court or to the other parties that it was to be sought. The two judgments of this Court ([2007] NSWCCA 65 and [2007] NSWCCA 79; 175 A Crim R 21) had referred to material that had been excluded from evidence. These were the 7 bodies of material that were included in the suppression orders. These two judgments were available to the public on the internet from their publication in 2007 to the day of the hearing of this application. There was no attempt by the applicant during that period to suppress the reasons of the Court. An application for special leave and an appeal to the High Court were heard in public. No attempt was made in this context to suppress this material. At least one of those judgments of the Court has been reported by legal publishers: R v Burrell [2007] NSWCCA 79;

175 A Crim R 21.

7 In my view, it would not be appropriate to make an order in the terms sought in relation to material that had been in the public domain for over year up to the hearing of this application, without any application to prevent such. It should be noted that when this application was made I requested the Registrar to remove the two judgments from the Court’s electronic website to hold the position. I informed the parties of this step during the argument.

8 I would therefore dismiss the application made informally in Court in the handwritten document on the file.

9 This has an impact on the application for leave to appeal and the appeal. If there were error in the primary judge’s reasons, this Court could re-exercise the discretion. A powerful consideration in any such re-exercise of discretion would be that the bulk of the very material which is sought to be suppressed had been available in the public domain for over one year up to the appeal and one judgment (that reported) remains in the public domain.

10 There were a number of aspects of evidence that were ruled inadmissible or were not led at the Whelan and Davis trial. They are most clearly set out in the reasons for judgment of Wood CJ at CL of 19 December 2003. Despite the fact that counsel for Mr Burrell in the application in this Court did not attempt to anonymise any of the matters, I will do so.

1. A bottle of a certain substance and a marked street directory

• This was dealt with by Wood CJ at CL on
19 December 2003 at [27]-[60].

• The bottle of the substance was ruled by Sully J at the first trial to be inadmissible as carrying virtually no probative value, but as likely to encourage impermissible reasoning.
• Wood CJ at CL likewise rejected the tender of the bottle; allowed a partial tender of the street directory and rejected other parts of the marked street directory under the Evidence Act 1995 , s 137 on the basis of prejudice.
• The Crown case statement, referred to by Wood CJ at CL in his reasons of 1 May 2003, concerning subpoenas at [13(b)(xix)], [14](viii)] and [23(b)(iii)(c)], recounted the aspects of the Crown case insofar as it relied on the type of substance in the bottle and the pages from the street directory that were rejected.
• The bottle of substance and the street directory were referred to in detail in [2007] NSWCCA 65 at [109], [111], [112] and [154] and again in abbreviated form in [2007] NSWCCA 79; 175 A Crim R 21 at [44], points 6 and 7.

2. Expressions of interest in relation to an acquisition of property in Tasmania

• This was dealt with by Wood CJ at CL on
19 December 2003 at [61]-[70]. Sully J had found the probative evidence to be slight and that its tender would result in an unnecessary and unproductive side issue. The rejection was not based on prejudice. Wood CJ at CL agreed.
• In the reasons of Wood CJ at CL on 1 May 2003, the Crown case about this was set out at [13(b)(iv)], [14 (xi)] and [23(b)(iii)(a)].
• These matters were referred to in detail in [2007] NSWCCA 65 at [16] and [2007] NSWCCA 79; 175 A Crim R 21 at [44], point 1, in abbreviated form.

3. A visit by Mr Burrell and a comment by Mrs Whelan

• Wood CJ at CL dealt with this on 19 December 2003 at [71]-[96]. The evidence concerned Mr Burrell and a comment made by Mrs Whelan about him. Sully J excluded the statement by Mrs Whelan as obscure and prejudicial. Wood CJ at CL agreed.
• In the reasons of Wood CJ at CL on 1 May 2003 the Crown case about this was discussed at [13(b)(xiii)].
• These matters were referred to in [2007] NSWCCA 65 at [21] and [22] and relevantly in full in [2007] NSWCCA 79; 175 A Crim R 21 at [44], point 4.

4. A lie allegedly told to James Whelan on 16 April 1997

• Wood CJ at CL dealt with this on 19 December 2003 at [97]-[103]. The evidence concerned a statement (said to be a lie) said to have been made to James Whelan (then 11 years old) that he (Burrell) had been to Lithgow to a pistol club. It was not said to be a lie evidencing a consciousness of guilt, but a misleading statement about his whereabouts. Sully J excluded the statement as of little probative value, with a risk of misuse, and excluded the evidence under the Evidence Act , s 137. Wood CJ at CL agreed.
• In the reasons of Wood CJ at CL on 1 May 2003, the Crown case about this was discussed at [14(iv)] and [23(b)(iii)(b)].
• These matters were referred to in [2007] NSWCCA 65 at [20] and substantially in full at [2007] NSWCCA 79; 175 A Crim R 21 at [44], point 3.

5. A telephone call to the Canon Help Desk

• Wood CJ at CL dealt with this evidence on
19 December 2003 at [117]-[124].
• The evidence concerned a call to the Help Desk of Canon from Mr Burrell’s land line. There was evidence that the ransom note had been typed using a Canon typewriter. The inference sought to be drawn was as to a particular kind of enquiry about the Canon typewriter possessed by Mr Burrell.
• Sully J held the evidence to have no probative value. Wood CJ at CL agreed.
• The evidence was discussed by the Court of Criminal Appeal in [2007] NSWCCA 65 at [42] and, indirectly, at [102].

6. The Buckley Evidence

• Wood CJ at CL dealt with this on 19 December 2003 at [125]-[142]. Mr Buckley could give certain evidence about Mr Burrell that reflected on his financial position and his need for money. Mr Buckley and the police were cross-examined on this evidence before Wood CJ at CL, who was of the view that it was admissible and that neither s 135 nor s 137 required its exclusion.
• The Crown case as to its use was set out in [13(b)(iii)] of the reasons of Wood CJ at CL on 1 May 2003.
• The evidence was discussed by the Court of Criminal Appeal in [2007] NSWCCA 65 at [12]-[15].

7. Mrs Harvey Allegation

• Wood CJ at CL dealt with this on 19 December 2003 at [474], point 5, and [509(iii)]. It concerned an alleged approach to a Mrs Harvey to invest a considerable amount of money in a financial scheme.
• This related to the Davis matter and was not discussed by the Court of Criminal Appeal in [2007] NSWCCA 65 or [2007] NSWCCA 79; 175 A Crim R 21.
• Kirby J discussed this evidence on 16 August 2007 at [8]-[12] and [19]-[32]. He held that the evidence did not have significant probative value (though was relevant) to outweigh its prejudicial effect.

8. Improvements note

• There was also evidence that Mr Burrell wrote out a note covering improvements to his house and property. This was referred to at [13(b)(vi)] of the reasons of Wood CJ at CL on 1 May 2003. This was not dealt with in the later reasons.

The decision of the primary judge

11 It is first necessary to examine the reasons of the primary judge to ascertain whether there was any error which would entitle the Court to intervene and re-exercise the discretion for itself.

12 The primary judge set out the submissions of counsel for News Limited.

13 His Honour first noted that the orders were made to protect the integrity of anticipated criminal trials, which had now been completed.

14 At [20]-[26] his Honour recorded the arguments on behalf of Mr Burrell and rejected them as follows:

[20] Mr Young, SC, representing Mr Burrell in the prosecution for the murder of Mrs Davis, informed the Court that the sentencing proceedings will take place on 7 December next, but that Mr Burrell’s instructions are thereafter to lodge an appeal against the conviction. Mr Young submitted that so damaging was the evidence kept from the jury and consequently not published to the public at large, that if it were published it would in all probability come to the notice of members of the public who might in due course form the pool from which a jury would be selected to try Mr Burrell again. Mr Young took issue with recent statements about the robustness of juries and their preparedness faithfully to follow the directions of trial judges to judge the matters before them solely on the basis of the evidence put before them.
[21] Mr Dalton, SC, representing Mr Burrell in proceedings arising out of the conviction for the kidnap and murder of Mrs Whelan, informed the Court that, following the dismissal by the Court of Criminal Appeal of his appeal against conviction and sentences, Mr Burrell had lodged in the High Court of Australia an application for special leave to appeal. That application might be expected to be heard late in February or early in March 2008. It was implicit in Mr Dalton’s submissions that, as in the Davis matter, there was a possibility that there might some time in the future be the need to put Mr Burrell on trial again. Thereafter the argument was as Mr Young had put it. Potential jurors would be irretrievably prejudiced. There was real risk that Mr Burrell would not get a fair trial. Mr Dalton also submitted that the evidence held inadmissible was “still well and alive” in the course of the intended proceedings in the High Court of Australia. So it was not just the prospect of the damage to a new trial but also the public confidence in the administration of justice, which would be undermined if the applicants were allowed to publish. One of the arguments which it is apparently intended to advance in the High Court of Australia is that in dismissing his appeal against conviction the Court of Criminal Appeal incorrectly took into account material which had been kept out of evidence. That material was excluded because of the orders now under consideration.

[22] I do not accept those submissions. It is clear that when there is an express or implied order prohibiting the publication of prejudicial material dealt with in open court in the absence of the jury, that express or implied order operates only as a postponement until the jury verdict has been delivered. The jury verdicts have now been delivered and it seems to me that there is no necessity to make or continue any order prohibiting publication of material dealt with in open court. The argument that Mr Burrell may one day be facing a retrial in relation to Mrs Whelan or Mrs Davis seems to me to be speculative. Any one of a number of things might happen in the future. In the Davis matter, the conviction may stand after appeal. If the appeal against conviction is successful there may not be any order for a new trial. If the appeal is successful and there is an order for a new trial, that could not happen until a year or so from now, well after the intended publications have ceased to affect the minds of members of the public. I do not share the concern of counsel for Mr Burrell about the permanent nature of the effect of publications upon members of the public or about the ability and willingness or [sic] members of juries to obey directions and judge issues only on the evidence properly put before them. As to the application for special leave to appeal against the orders of the Court of Criminal Appeal in the Whelan matter, the notion of a retrial some time in the future is equally speculative. Special leave may be refused. If it is granted the ultimate appeal may be dismissed. If it succeeds, there may not be an order for a new trial. If there is to be a new trial it will not be for a long time.
[23] But there is, I think, a more fundamental answer to the submissions put on behalf of Mr Burrell. In effect, they treat the jury verdicts as somehow provisional. A verdict of guilty followed by conviction and sentence is a final judgment: R v Kanaan [2006] NSWCCA 109 at [24]. It should be respected as such.
[24] I do not think that public confidence in the administration of justice would be affected if the details of the evidence held inadmissible were to be published before the hearing of the special leave application.
[25] I make no order as to the confidential portions of the jury note MFI 114. They should remain confidential.
[26] I order that each of the orders identified in paras 6 and 7(iii) be varied or vacated so as to cease to forbid the publication of matter referred to therein.

The arguments on appeal

15 The first ground of appeal was that his Honour erred in approaching the application on the basis that the orders sought to be varied or to be vacated were impliedly made only up to the time that the verdicts were delivered in both trials and/or the onus was upon the Mr Burrell to demonstrate why further orders should be made or the existing orders continued.

16 I do not think that is a fair analysis of what the primary judge did. A fair reading of the primary judge’s reasons is that he concluded that there was no necessity to make or to continue any order prohibiting publication of the material. I do not read his Honour’s reasons as doing other than considering whether it was necessary and appropriate to protect any possible future jury trial. His Honour used the word “speculative” about such further trial. That was a legitimate expression of the contingency of a successful appeal, not by way of an expression of view that success in the appeal was unlikely, but that it was simply speculative to assess that likelihood. No attempt was made before the primary judge, and none was made before this Court, to demonstrate any error in the conduct of the trial below. In other words, no attempt was made to submit that the appeal had any particular strength. In those circumstances, the use of the word “speculative” is both understandable and entirely appropriate.

17 A submission was put that the orders were in place and subject to any question of the original validity of those orders (which was eschewed before the primary judge) the onus was on the applicant (News Limited) to demonstrate why the orders should have been vacated. I do not accept this submission. Non-publication orders of the kind his Honour was dealing with are serious restrictions upon the free flow of information about the operation of the judicial branch of government in its most important field of the criminal law. The interference with that free flow of information and the public dissemination of it should always be justified as necessary and appropriate. In this case, the orders, when made, were seen as necessary and appropriate for the protection of future jury trials. Once the jury trials were completed the furtherance of the non-publication orders had to be justified: John Fairfax Publications Pty Limited v Attorney-General (NSW) [2000] NSWCA 198; 181 ALR 694 at 703-704 [52]-[56] and John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344 at 352 [18].

18 Thus I do not see any error in the approach of the primary judge in approaching the matter from the perspective of assessing whether the orders continued to be necessary and therefore appropriate.

19 His Honour then expressed the view that there was no necessity for the continuation of the orders. He noted that there would be a significant delay until any order for a new trial “well after the intended publications have ceased to affect the minds of members of the public”. Whilst his Honour did not directly refer to the question of the use of the material on the internet, in [22] his Honour’s reference to the permanent nature of the effect of publications and the ability and willingness of members of the jury to obey directions can be taken to include this issue in modern day jury trials as well as to any permanent literary publications.

20 The learned primary judge was the judge who conducted the trial in the Whelan case. He can be taken to be fully aware of the evidence in that trial. His Honour came to view that there was likely to be little prejudice or insufficient prejudice to require a further non-publication order to protect a possible retrial sometime in the future in circumstances which were speculative. This was a conclusion well open to the learned primary judge. The submissions put on behalf of Mr Burrell which attack his Honour’s conclusion proceed on the assumption that whilstsoever there is the possibility of a retrial, non-publication orders should remain as if there were a trial coming up in the future. It was put that to do otherwise would undermine the utility of the appeal procedure.

21 I cannot accept these submissions. If there is another trial, the jury can be appropriately directed in relation to extrinsic material: see generally R v Kanaan [2006] NSWCCA 109 at [24]. The proper test is the assessment of the necessity for the orders. The primary judge assessed that question and addressed himself to the relevant considerations.

22 In my view, there has been no error shown in the approach of the primary judge.

23 If it were for this Court to re-exercise the discretion I would exercise the discretion the same way as his Honour did. Looking at the material and the relevant judgments referred to earlier and taking into account what had been in the public domain for over a year up to the hearing of this application, I do not think that it can be concluded that it is necessary to protect any possible future jury trial that these orders be continued.

24 The orders that I would make are:

1. Grant leave to appeal from orders made by the Court (Barr J) 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.

25 JOHNSON J: I agree with Allsop P.

26 PRICE J: I agree with Allsop P.

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