Burrell v The Queen

Case [2008] HCA 34

HIGH COURT OF AUSTRALIA

GUMMOW ACJ
KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

Matters No S141/2008 & S142/2008

BRUCE BURRELL  APPELLANT

AND

THE QUEEN   RESPONDENT

Matters No S327/2007 & S328/2007

BRUCE BURRELL  APPLICANT

AND

THE QUEEN   RESPONDENT

Burrell v The Queen
[2008] HCA 34
31 July 2008
S141/2008 & S142/2008,
S327/2007 & S328/2007

ORDER

1.Dismiss so much of the appellant's applications for special leave to appeal to this Court on grounds other than those upon which the appeals to this Court are founded.

2.Appeals allowed.

3.Set aside the order of the Court of Criminal Appeal made on 23 March 2007.

4.Set aside the order of the Court of Criminal Appeal made on 16 March 2007.

5.Remit the appellant's appeal against conviction and his application for leave to appeal against sentence to the Court of Criminal Appeal for rehearing.

On appeal from the Supreme Court of New South Wales

Representation

I M Barker QC with D G Dalton SC for the appellant/applicant (instructed by Legal Aid Commission of NSW)

M G Sexton SC, Solicitor-General for the State of New South Wales with T L Smith for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Burrell v The Queen

Criminal law – Appeal and new trial – Orders dismissing appeals formally recorded – Reasons for judgment contained substantial factual errors – Whether superior court of record can reopen proceedings after its orders disposing appeals formally recorded – Whether power to reopen appeals – Finality of litigation – Procedural fairness.

Criminal Practice – Court of Criminal Appeal (NSW) – Appeal – Power to reopen proceedings after orders disposing of appeals formally recorded – Finality of litigation – Avoidance of injustice to parties – Procedural fairness.

Courts – Court of Criminal Appeal (NSW) – Appeal – Reasons for judgment contained substantial factual errors – Power to reopen proceedings after orders disposing appeals formally recorded – Relevance of status and general powers of Court – Whether implied or inherent powers to avoid injustice to parties suffice to sustain orders reopening proceedings.

Words and phrases – "finality", "perfecting", "procedural fairness", "reopen", "superior court of record".

Criminal Appeal Act 1912 (NSW), ss 3-23.
Criminal Appeal Rules 1952 (NSW), rr 51, 53.

  1. GUMMOW ACJ, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ.   The Court of Criminal Appeal of New South Wales published reasons for decision and pronounced orders dismissing the appellant's appeals against conviction and sentence.  After those orders had been formally recorded, the Court discovered that its reasons contained substantial factual errors.  Could the Court reopen the appeals and reconsider the orders that had passed into record?

  2. The appellant submitted, on appeal to this Court, that the Court of Criminal Appeal had no power to reopen the appeals.  He submitted that this Court should set aside the orders first made by the Court of Criminal Appeal on account of the errors the Court of Criminal…

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AGLC
Burrell v The Queen [2008] HCA 34
Case
[2008] HCA 34
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Burrell against decisions of the Court of Criminal Appeal of New South Wales. The dispute concerned the power of the Court of Criminal Appeal to reopen its own proceedings and reconsider orders that had been formally recorded, particularly in circumstances where the reasons for judgment contained substantial factual errors.

The central legal issue before the High Court was whether a superior court of record, such as the Court of Criminal Appeal, possesses the inherent or implied power to set aside its own final orders after they have been formally entered, especially when such errors could lead to injustice. This question engaged fundamental principles of the finality of litigation and procedural fairness.

The High Court acknowledged that while there might be a judicial inclination to correct errors and avoid injustice, the prevailing authority dictates that a court of criminal appeal, in New South Wales, does not have a legal entitlement to reopen its own formally pronounced and entered orders. This principle is rooted in the fundamental tenet of the judicial system that controversies, once resolved, should not be reopened except in narrowly defined circumstances, with the appellate system being a primary qualification to this general rule of finality.

The High Court allowed the appeals, set aside the orders of the Court of Criminal Appeal made on 16 and 23 March 2007, and remitted Mr Burrell's appeal against conviction and his application for leave to appeal against sentence to the Court of Criminal Appeal for a rehearing. The Court also dismissed so much of the appellant's applications for special leave to appeal on grounds other than those upon which the appeals were founded, without expressing a view on the merits of those other issues.

Orders

Orders of the court

1. Dismiss so much of the appellant's applications for special leave to appeal to this Court on grounds other than those upon which the appeals to this Court are founded.

2. Appeals allowed.

3. Set aside the order of the Court of Criminal Appeal made on 23 March 2007.

4. Set aside the order of the Court of Criminal Appeal made on 16 March 2007.

5. Remit the appellant's appeal against conviction and his application for leave to appeal against sentence to the Court of Criminal Appeal for rehearing. (Orders of the Court)

Background

Background to the litigation

I have said this[25], and suggested[26] so much in earlier decisions in this Court. I remain of the same opinion. However, I am required to acknowledge that the opinion that prevails in this Court's authority, specifically when addressed to the jurisdiction and powers of a court of criminal appeal such as that in New South Wales, denies any legal entitlement of such a court, in a case such as the present, to reopen its own orders, formally pronounced and entered in court records. This is so, despite some indications to the contrary in decisional authority and in terms of legal principle. I will explain how I come to this conclusion. Effectively, it requires that the matter be returned to the Court of Criminal Appeal for a completely fresh hearing.[25]DJL v Central Authority (2000) 201 CLR 226 at 266 [98]-[99]; [2000] HCA 17.[26]Postiglione v The Queen (1997) 189 CLR 295 at 343; [1997] HCA 26.The facts Mr Burrell was charged with detaining Mrs Kerry Whelan with intent and for advantage on 6 May 1997 and with murdering her on or about 6 May 1997. On that day, in Sydney, Mrs Whelan disappeared without expectation, warning or notice. She left behind her husband and three children, to whom the evidence showed she was devoted. The evidence also showed that Mrs Whelan was expecting later that day to depart with her husband by plane for Adelaide. Mr Burrell had at one stage worked for a company with which Mrs Whelan's husband was associated. In December 1990 he had been made redundant. Shortly before Mrs Whelan's disappearance, Mr Burrell re-established contact with Mr Whelan and his wife. At trial, the prosecution case against Mr Burrell relied on circumstantial evidence. It is unnecessary for the issue that determines this appeal to describe that evidence. Suffice it to say that, in certain respects, it was not insubstantial. In crimes of the kind charged, it is by no means unique, or even unusual, for the prosecution to have to rely on circumstantial evidence[27].[27]cf De Gruchy v The Queen (2002) 211 CLR 85 at 95 [40]; [2002] HCA 33. The charges detailing the subject offences were first brought in April 1999. In December of that year, Mr Burrell was committed for trial upon them. Hearings anterior to a first trial took place in the Supreme Court of New South Wales between January and April 2001 before Sully J. After a number of voir dire hearings, the trial did not commence. The matter was stood over to a date to be fixed. In April 2001 the Director of Public Prosecutions for New South Wales filed a nolle prosequi in respect of both counts. Following an inquest in May and June 2002 into Mrs Whelan's disappearance, the Director, in September of that year, filed a fresh ex officio indictment. This contained the two stated counts relating to the disappearance and alleged murder of Mrs Whelan. There followed applications by Mr Burrell for a stay of the proceedings upon those charges. Such applications were refused. The refusals were, in turn, contested without success before the Court of Criminal Appeal and in this Court. The trials and the appeal

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GUMMOW ACJ ACJ, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ KIRBY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GUMMOW ACJ, ACJ, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ, KIRBY J

Against the possibility that remitter to the Court of Criminal Appeal, for rehearing of the appeals by that Court, may not be thought appropriate, the appellant sought special leave to appeal on grounds alleging, in effect, that the Court of Criminal Appeal should have found errors in the proceedings at trial. In so far as the application for special leave raised those matters, it was referred for consideration by the Full Court of this Court that would hear and determine the appeals. The matters giving rise to these additional grounds should be dealt with afresh on the rehearing of the matter in the Court of Criminal Appeal. So much of the appellant's applications for special leave to appeal to this Court on grounds other than those upon which the appeals to this Court are founded should be dismissed. As is implicit in what has been said, however, that dismissal is not to be understood as expressing any view about the merits of those other issues.Some basic considerations The question that arises in this appeal concerns the powers of a superior court of record[6] to reopen a proceeding and reconsider the orders that have been made. The position of courts other than superior courts of record need not be examined and what is said in the balance of these reasons considers only the orders of a superior court of record.[6]See as to "superior court of record": DMW v CGW (1982) 151 CLR 491 at 503‑505; [1982] HCA 73; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177‑178 [19]‑[23], 235‑236 [216], 274‑275 [328]‑[329]; [2000] HCA 62. Consideration of the issues presented in this matter must begin from the recognition that, as pointed out in DJL v Central Authority[7], "clarity of thought and the isolation of the true issues [is not] encouraged by submissions expressed in general terms respecting the position in 'intermediate courts of appeal'". Rather, as the plurality went on to point out in DJL[8]:"In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s 73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 2][9]".[7](2000) 201 CLR 226 at 247 [43]; [2000] HCA 17.[8](2000) 201 CLR 226 at 247 [43]. See also Elliott v The Queen (2007) 82 ALJR 82 at 85 [7]; 239 ALR 651 at 654; [2007] HCA 51.[9][2000] 1 AC 119. Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta‑Ekenaike v Victoria Legal Aid[10]: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud[11] and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.[10](2005) 223 CLR 1 at 17 [34]; [2005] HCA 12.[11]DJL v Central Authority (2000) 201 CLR 226 at 244‑245 [36]‑[37].