Special leave refused by the High Court (s14/2010) 28 May 2010
New South Wales
Court of Criminal Appeal
CITATION:
Burrell v Regina [2009] NSWCCA 163 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
18 and 19 December 2008
JUDGMENT DATE:
17 June 2009
JUDGMENT OF:
Beazley JA at 1; Grove J at 1; Howie J at 1
DECISION:
1. Leave to appeal is granted; 2. The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – directions to jury – whether the trial judge erred in refusing to give a direction in accordance with Shepherd v R [1990] HCA 56 - (1990) 170 CLR 573 - CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – whether verdicts unsafe and unsatisfactory, insofar as they are unreasonable and cannot be supported having regard to the evidence - CRIMINAL LAW – appeal – orders made by Court of Criminal Appeal – orders reopened after factual errors discovered in judgment – some grounds appealed to the High Court – case remitted to the Court of Criminal Appeal from the High Court – whether remitter includes grounds not appealed to the High Court - CRIMINAL LAW – appeal – evidence – witnesses – further cross-examination under the Evidence Act 1995, s 38 - whether the trial judge erred in permitting further cross-examination of particular witnesses by one party after cross-examination by the other party of those witnesses - CRIMINAL LAW – appeal – note from juror to trial judge- whether note reveals irregularity during the jury’s deliberations – whether the trial judge erred in giving a direction in accordance with Black v R [1993] HCA 71 - (1993) 179 CLR 44 – whether the trial judge erred in not discharging the jury – whether the trial judge erred in failing to enquire whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance - CRIMINAL LAW – appeal – sentence – life imprisonment for murder – whether the trial judge erred in imposing a sentence of life imprisonment
[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
Sign in free to access the full text
Details
AGLC
Burrell v The Queen [2009] NSWCCA 163
Case
[2009] NSWCCA 163
Decision Date
CaseChat Overview and Summary
The appellant, Burrell, was convicted of the murder of a police officer and appealed against his conviction and sentence. The appeal raised multiple issues, including the adequacy of the trial judge's directions to the jury regarding indispensable intermediate facts and circumstantial evidence, the safety of the verdicts, and the legality of the sentence. The appeal was initially heard by the Court of Criminal Appeal, which made several orders, but later reopened the appeal after discovering factual errors in its earlier judgment. Some grounds of appeal were taken to the High Court, which remitted the case back to the Court of Criminal Appeal.
The High Court considered whether the remitter included grounds not appealed to the High Court. The court also examined whether the trial judge erred in allowing further cross-examination of witnesses, in handling a note from a juror, and in imposing a sentence of life imprisonment. The reasoning of the court involved a detailed examination of the evidence and the legal principles applicable to the issues raised. The court found that the trial judge had not erred in most respects, but did find that the remitter from the High Court included all grounds of appeal, not just those appealed to the High Court.
The verdicts were found to be safe and satisfactory, and the sentence was considered appropriate. The court held that the trial judge had not erred in most respects, but found that the remitter from the High Court included all grounds of appeal. The court found that the verdicts were safe and satisfactory, and that the sentence was appropriate. The appeal was ultimately dismissed, and the conviction and sentence were upheld.