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 2008JUDGMENT 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 109PARTIES: 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
21 November 2008ALLSOP P
JOHNSON J
PRICE J
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…
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- AGLC
- Bruce Allan Burrell v Regina [2008] NSWCCA 276
- Case
- [2008] NSWCCA 276
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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