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

Copyright in the High Court of Australia

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 necessary for conviction.

MR BARKER:   Quite, but the major problem arose this way, that the Crown opened a case which had a very specific beginning of the narrative, that is that Mrs Whelan was taken away in a vehicle driven by Mr Burrell at  9.38 in the morning of 6 May 1997 and was not seen again.  So the abduction was carried out by the use of his Pajero vehicle.  There was a great deal said about that.  The Crown invested a great deal of forensic effort in proving that that is how things happened.

The time and place of each offence was unknown, but however the case is approached, the narrative starts with the Pajero and the Crown did not deviate from that.  To give your Honours the flavour of this, would you mind looking that transcript of his opening at page 26.  It is right at the back of the bundle of documents.  It should be the first page on the transcript, at line 40 he said that the jury would note that “detaining” is “At a place unknown”.  He said:

The reason for that is this:  Kerry Whelan, it is alleged by the Crown, met the accused outside the Parkroyal Hotel at Parramatta at about 9.40am on 6 May 1997.  It is alleged that she voluntarily, willingly, got into his car and went with him.  There will not be any direct evidence about why she went with him or where she went with him.  That is one of the enduring mysteries of this trial – how he managed to coax her into getting willingly and voluntarily into his car.  But the Crown case is that at some stage, not too long after that, the accused changed what was a voluntary lift in his car into a forced abduction.

He said quite a deal more about that, and I do not have time to take your Honours through it all in a special leave application, but there was a very considerable body of evidence going to prove that fact:  expert evidence about the wheels of the vehicle; long and detailed surveillance evidence about the video camera at the hotel; 1,600 questionnaires sent to Pajero owners around Australia and that evidence was, indeed, the lynchpin of the Crown case and was very heavily relied on by the Crown.

In response to the case as open, the defence called witnesses who said they saw a woman who they thought was Kerry Whelan, or who at least looked like her, some time after 9.38 - one, Mrs Carter, at 10.00 to 10.45 on the same day; Mrs McMurray at 9.40 on the same day; Mrs Lambert at Brisbane on 9 May and Mrs Woods at Armidale on 16 May.  That evidence, we submit, was an impediment to proof beyond reasonable doubt of the starting point of the Crown case, and in his closing address, the Crown Prosecutor told the jury that if they accepted the Pajero evidence, or either of the other two bodies of evidence, beyond reasonable doubt, they could convict and that starts at page 403 of application book, line 40.

It is the Crown submission to you that in this trial you have heard three completely independent bodies of evidence.  The first body of evidence is the Pajero evidence; the second body of evidence is the dot‑point notes; and their similarity to the ransom note; and the third body of evidence is the call from the Empire Hotel.  If you are satisfied in relation to the Pajero evidence; namely, that it was [the appellant’s] Pajero outside the Parkroyal Hotel, that is the end of the matter.  You would have to convict him, because there is no other explanation . . . 

If you are satisfied beyond reasonable doubt that those dot‑point notes contained his early thoughts about a kidnapping and a ransom note, that’s the end of it . . . 

If you are satisfied beyond a reasonable doubt that he made that call to Crown Equipment . . . that’s the end of it . . . 

Now, you can look at those three bodies of evidence independently but you can also look at them all together and you can say to yourself:  What an amazing body of evidence ‑ ‑ ‑

FRENCH CJ:   So any one of those three conclusions, on the Crown case, would have been sufficient to warrant conviction?

MR BARKER:   Yes, and according to him, beyond a reasonable doubt.

FRENCH CJ:   The position was taken by defence counsel in submission to the judge, at least so far as one can see from the oral submissions at 99, that the jury would have to make a positive finding on at least one of those three areas.  That is the direction he wanted.  Is that the direction he sought in a written direction he submitted to the judge because it seems he is saying that not all of those conclusions are necessary, but at least one of them is necessary?

MR BARKER:   The direction he sought is at page 409, line 20.

FRENCH CJ:   It is at least one, and that is reflected, I think, in your ground 2.3 at 467.

MR BARKER:   Yes, your Honour.

FRENCH CJ:   But the first ground you take is that you need all of them.  Is that right?

MR BARKER:   We say all of them or alternatively, any of them.

FRENCH CJ:   At least one.

MR BARKER:   At least one.  Going back to page 404, the prosecutor sought to clarify what he had said, and this is line 30:

. . . my intention in relation to all three bodies of evidence was to say that if they were satisfied beyond a reasonable doubt of any individual one of those three categories, that that would be sufficient to convict.  It was not my intention to suggest to that jury that they needed to be satisfied of that piece of evidence beyond a reasonable doubt in order to convict, and I went on to address the jury on the totality of all the evidence.  So, it was not my intention to suggest that that piece of evidence was one that required direction –

I am not quite sure what he is talking about there, but the significance for our purpose is that he said “if they were satisfied beyond a reasonable doubt of any individual one of those categories, that that would be sufficient to convict”.  What happened then was at page 405 you have his Honour’s direction to the jury in which he criticised both counsel for what they said as being not according to the law, but at line 10 he said:

Mr Dalton says to you that you cannot be satisfied beyond reasonable doubt that Mrs Whelan was abducted by [the appellant] . . . 

It is possible that you may find yourselves satisfied beyond reasonable doubt that she was detained in precisely the same way as is submitted to you by the Crown, that is to say, that [the appellant] drove her away at 9.38 and some seconds travelling eastwards and that within some time shortly after that she was detained because she became an unwilling passenger.

It is not, however, necessary for you to be satisfied beyond reasonable doubt that that is precisely how [the appellant] went about the detention.  What you must be satisfied about beyond reasonable doubt is that, by some manner and means, and certainly by, say, a quarter to four on the same afternoon, 6 May, [the appellant] detained Mrs Whelan.  I say a quarter to four because that is about the time Mrs Whelan was due to arrive at her husband’s office at Smithfield -

What his Honour did, in effect, is to tell the jury that they did not require the Pajero as a starting point, in fact, they did not require the Pajero at all.  They did not require a 9.38 starting point, and they did not require any starting point provided the abduction happened before 3.45.  Indeed, he seems to have gone so far as to say that if the witness from Brisbane could be accepted the murder could have taken place some time after 6 May.  Could I take you then to the view of the Court of Criminal Appeal about all this at page 414?  At the top of the page:

There was considerable forensic importance to the appellant in having a Shepherd direction given, at least in respect of the Pajero evidence.  If that was an indispensable intermediate fact of which the jury had to be satisfied in order to be satisfied of the appellant’s guilt, then the evidence of the later sightings of Mrs Whelan took on a particular significance.  If the jury believed that any one of those sightings was credible, in the sense of being a sighting of Mrs Whelan, then the jury would have been required to have a reasonable doubt as to the Pajero evidence, and thus of the guilt of the appellant.

However, an acceptance that those later sightings, particularly those on 6 May, were sightings of Mrs Whelan, was consistent with a case that she was abducted, not at about 9:38 am, but at some later point of time, most likely before 4 pm.  An acceptance that Mrs Whelan was sighted at Brisbane airport some days later would be consistent with a case that she was murdered sometime later than 6 May.  The effect of a Shepherd direction in respect of the Pajero evidence would have deprived the jury of a consideration of these possibilities, which were clearly open on the evidence and were part of the Crown case.

But they were not part of the Crown case the way the prosecutor put it.  What his Honour effectively did was to deprive the defence evidence of any real significance because you just ignore the Crown narrative and the Crown’s starting point and say it could have happened some time later that day.  We do not know how, but there is evidence, it is said, that would justify conclusion that you can ignore the way the Crown put the starting point.

FRENCH CJ:   That is a bit of a shift from saying that a direction as to the necessity of establishing at least one of the so‑called intermediate facts was required.  That does not depend upon how the Crown put its case.  That is put up as a matter of principle, is it not, by you?

MR BARKER:   Yes.

FRENCH CJ:   In terms of characterisation relevant to the application of Shepherd?

MR BARKER:   Yes, your Honour, but the most important aspect of all this is the Pajero evidence.

FRENCH CJ:   Yes, I know.

MR BARKER:   Of course, as to the passage at page 414, paragraph 130:

was consistent with a case that she was abduced, not at about 9:38 am, but at some later point of time -

The case was not that she was abducted at 9.38; she got into the car voluntarily according to the Crown theory and was subsequently abducted.  In our submission, as to that passage, the defence was entitled to take whatever proper forensic advantage that could be taken from the way the prosecutor presented the case.  The effect of a Shepherd direction would not have deprived the jury of the consideration of possibilities.  It would have more adequately concentrated their mind on the Crown case.

HAYNE J:   But does that amount to saying that when the Crown opens a case, necessarily a circumstantial case, by describing a narrative – I would have thought something that every prosecutor would want to do in a circumstantial case – that the jury must receive a Shepherd direction about each element of that narrative?  It seems a large proposition, I think.

MR BARKER:   If it is said by the Crown to be the case, which is what the effect of the prosecutor’s speech was here - his opening here.  At page 410 his Honour specifically invited the jury to find that – at the bottom of the page he said:

You may care to regard those circumstances like strands in a rope.  If one piece of evidence does not satisfy you the strand breaks but the rope does not necessarily break; in other words, the Crown can still prove its case even if fails to prove one or more of the circumstances it relies on.

We say as to that that the jury may well have responded differently had they been given a direction that they might also consider whether the evidence should be looked at as links in a chain rather than strands in a rope.  That, effectively, again took away any prospect of the jury coming to the conclusion that they ought to be satisfied beyond reasonable doubt before they convicted on any of these three bodies of evidence. 

We submit that was extremely unfair to the accused.  A judge cannot direct a jury how they are to assess facts and, if I may put it rhetorically, why should a judge be allowed to tell a jury that no fact need be proved beyond reasonable doubt if it is open, or may be open, to the jury to take a different view.  That was simply not left to the jury in this case.  I am not sure about this new system, am I ‑ ‑ ‑

FRENCH CJ:   You are on the amber, I think, at the moment.  The light will start flashing.

MR BARKER:   Right.  To go back to where I started in dealing with the two special leave questions, we ask the Court to clarify what is meant by an indispensable step in all this and we ask the Court to hold that proof beyond reasonable doubt may sometimes be required in respect of intermediate evidence whether or not it can strictly be regarded as indispensable, and this is a good example of that.

Thirdly, we ask the Court to hold that when a question arises about whether or not evidence is indispensable, it should be left to the jury to determine and that would require a resolution of conflict in New South Wales between Merritt and Davidson.  They are both in the bundle of folders.  If I can get to them before the trapdoor opens, Merritt [1999] NSWCCA 29 at paragraph [70], about halfway down the paragraph:

In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt -

In Davidson, a later case, [2009] NSWCCA 150, at paragraph 18 his Honour, Chief Justice Spigelman, said that:

The statement in Merritt at [71] set out at [5] above, that a direction “would usually be essential” does not accord with the principle affirmed most recently in Keenan set out at [14] –

and he went on to say that ‑ ‑ ‑

FRENCH CJ:   Your position here is not whether it should have been left the jury to decide that they were intermediate indispensable facts, but that they should have been told either that they were all intermediate indispensable facts, or that at least one of them was.  They are the two grounds of appeal you are running, are they not?

MR BARKER:   Yes.

FRENCH CJ:   I think your time is up, Mr Barker.

MR BARKER:   Thank you, your Honours.

FRENCH CJ:   We will not need to trouble you, Mr Solicitor.

This application does not disclose a basis upon which a Shepherd direction was necessary.  The approach of the trial judge and the Court of Appeal was correct.  Special leave will be refused.

AT 10.36 AM THE MATTER WAS CONCLUDED