Burrell v The Queen - [2010] HCATrans 141

[2010] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S14 of 2010

B e t w e e n -
BRUCE BURRELL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2010, AT 10.13 AM

MR I.M. BARKER, QC: If the Court pleases, I appear with MR A.C. HAESLER, SC, for the applicant. (instructed by Legal Aid Commission of NSW)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Mr Barker.

MR BARKER: Your Honours, as to special leave questions 1 and 2, we are asking the Court to clarify what is an indispensable intermediate step, as referred to in Shepherd v The Queen. The relevant part of Shepherd v The Queen has been reproduced in the CCA judgment in the application book at page 394, line 30, the judgment of Justice Dawson which was joined in by Justices Gaudron and Toohey. He described what circumstantial evidence is, then about a quarter of the way down the passage:

However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of interference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected . . . But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity . . .

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt . . . But where ‑ ‑ ‑

FRENCH CJ: The question here was a question of characterisation of the asserted intermediate facts as either links in the chain or strands in the rope, to use the metaphor.

MR BARKER: Yes, your Honour, and we say that they became indispensable because the Crown made them so. It was the Crown who said that they needed to be proved beyond reasonable doubt.

FRENCH CJ: The Crown suggested that the proof of any one of them was a sufficient basis for conviction and the judge wanted to clear up any suggestion that implied that they were each…

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 The Queen

Details

AGLC: Burrell v The Queen [2010] HCATrans 141
Case: [2010] HCATrans 141
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Burrell, against his conviction for murder. The applicant had been found guilty by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute concerned the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and, if so, whether this error had occasioned a substantial miscarriage of justice. Further, the Court considered whether the trial judge's directions to the jury regarding the use of this evidence were adequate to mitigate any prejudice.

The Court analysed the provisions of the *Crimes Act 1958* (Vic) concerning the admissibility of evidence of prior convictions. It held that the admission of such evidence was permissible only in limited circumstances, primarily where it was relevant to an issue in dispute or had significant probative value beyond merely showing a propensity to commit crime. The Court found that the evidence of prior convictions in this case was improperly admitted as it did not meet the statutory criteria and was highly prejudicial to the applicant. Consequently, the Court concluded that the admission of this evidence, despite the judge's directions, had resulted in a substantial miscarriage of justice.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders