Burrell v The Queen - [2009] NSWCCA 163

No judgment structure available for this case.

Reported Decision: 196 A Crim R 199

Appeal Outcome: 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

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 61(1)
Criminal Appeal Act 1912, s 6(1)
Evidence Act 1995, s 38, s 135, s 137, s 192
High Court Rules 2004 (Cth), reg 3.01

CATEGORY: Principal judgment

CASES CITED: Black v R [1993] HCA 71; (1993) 179 CLR 44
Burrell v R [2007] NSWCCA 65
Burrell v The Queen [2008] HCA 34
Chamberlain v The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521
Davidson v R [2009] NSWCCA 150
Edwards v The Queen (1993) 178 CLR 193
Grierson v R [1938] HCA 45; (1938) 60 CLR 431
Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151
House v R [1936] HCA 40; (1936) 55 CLR 499
Ibbs v The Queen (1987) 163 CLR 447
Knight v Regina [2006] NSWCCA 292; 164 A Crim R 126
M v R [1994] HCA 63; (1994) 181 CLR 487
MFA v R [2002] HCA 53; (2002) 213 CLR 606
Minniti v R [2006] NSWCCA 30; 159 A Crim R 394; 196 FLR 431
Plomp v R [1963] HCA 44; (1963) 110 CLR 234
R v Arthurell (Supreme Court of New South Wales, 3 October 1997, unreported)
R v Baker (Court of Criminal Appeal, 20 September 1995, unreported)
R v Bell (1985) 2 NSWLR 466
R v Valera [2002] NSWCCA 50
R v Burrell [2007] NSWCCA 79
R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported)
R v Crofts (Supreme Court of New South Wales, 6 December 1996, unreported)
R v Fowler [2000] NSWCCA 142
R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported)
R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409; 121 A Crim R 342
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Kalajzich (1997) 94 A Crim R 41
R v Keenan [2009] HCA 1; (2009) 83 ALJR 243
R v Kingswell (Court of Criminal Appeal, 2 September 1998, unreported)
R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450
R v Markulevski [2001] NSWCCA 290; (2001) 52 NSWLR 82; (2001) 125 A Crim R 186
R v Merritt [1999] NSWCCA 29
R v Merritt [1999] NSWCCA 29
R v Milat (Supreme Court of New South Wales, 23 April 1996, unreported)
R v Miles [2002] NSWCCA 276
R v Mrish (Supreme Court of New South Wales, 13 December 1996, unreported)
R v Ngo [2001] NSWSC 1021; (2001) 125 A Crim R 495
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Parkes [2003] NSWCCA 12; 147 A Crim R 450
R v Petrinovic [1999] NSWSC 1131
R v Petroff (Court of Criminal Appeal, 12 November 1991, unreported)
R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported)
R v Twala (Court of Criminal Appeal, 4 November 1994, unreported)
R v Zaiter [2004] NSWCCA 35
Ramstead v The Queen [1999] 2 AC 92
Regina v Dellapatrona (1993) 31 NSWLR 123
Regina v Kilbourne (1973) AC 729
Regina v Sandford (1994) 72 A Crim R 160
Regina v Small (1994) 33 NSWLR 575
Regina v Willard [2005] NSWSC 402
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Velevski v R [2002] HCA 4; (2002) 187 ALR 233
Yuill v R (1994) 34 NSWLR 179; (1994) 77 A Crim R 314

PARTIES: Bruce BURRELL (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/2061

COUNSEL: I Barker QC; D Dalton SC (Appellant)
M Sexton SC; T Smith (Respondent)

SOLICITORS: Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2002/101

LOWER COURT JUDICIAL OFFICER: Barr J

LOWER COURT DATE OF DECISION: 9 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Bruce Allan Burrell [2006] NSWSC 581

- 57 -

CCA 2002/2381

BEAZLEY JA
GROVE J
HOWIE J

17 June 2009

Bruce Allan Burrell v Regina

Headnote

On 6 June 2006, a jury convicted the appellant of the kidnapping and murder of Kerry Whelan. This was the second trial of the appellant for the charges of murder and kidnapping, the jury at the first trial having been unable to reach a unanimous verdict. Mrs Whelan was seen in the carpark at the Parkroyal Hotel in Parramatta at 9:38 am on 6 May 1997. Apart from some possible sightings of her later that day and another possible sighting on 9 May 1997, she has not been seen since and her body has never been found.

On 9 August 2006, Barr J sentenced the appellant to life imprisonment on the charge of murder and a term of 16 years imprisonment with a non-parole period of 12 years on the charge of kidnapping. The appellant appealed against his convictions and sought leave to appeal against his sentence to life imprisonment. On 16 March 2007, the Court dismissed the appeal against conviction and granted leave to the appellant to appeal against the sentence, but dismissed the appeal: see Burrell v R [2007] NSWCCA 65 (the first appeal). The Court purported to reopen the appeal and reconsidered the grounds of appeal to address factual errors said to be contained in the judgment: R v Burrell [2007] NSWCCA 79. The appellant appealed to the High Court, who quashed the orders made by the Court and remitted the matter for rehearing of the appeal: Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428. The appeal with which this Court is concerned is the rehearing ordered by the High Court.

Held

Per the Court

(a) three specified indispensable intermediate facts, or, alternatively;

(b) that they had to be satisfied beyond reasonable doubt of at least one of those three indispensable intermediate facts? (ground 1)

Shepherd v R

Chamberlain v The Queen (No. 2)

R v Merritt

Minniti v R

R v

Taylor

R v Zaiter

Davidson v R

Velevski v R

R v Hillier

R v Keenan

Plomp v R

A Shepherd direction is unlikely to be required where its effect in respect of certain evidence would deprive the jury of a consideration of possibilities, which are clearly open on the evidence and are part of the Crown case: [132]-[136].

Shepherd

M v R

MFA v R

R v Markulevski

Burrell v The Queen

Burrell v R

R v Kneebone

R v Fowler

R v Milat

R v Parkes

R v Kingswell

Burrell v R

Black v R

Ramstead v The Queen

Yuill v R

Burrell v R

Ramstead v The Queen

Yuill v R

Burrell v R

It is for the trial judge to determine whether it was appropriate, after receiving a note from a juror that he/she did not feel that deliberations were any longer genuine, to enquire as to the jury’s progress in their deliberations: [225].

R v Olbrich

R v Merritt

R v Twala

R v Harris

R v Arthurell

Veen v R (No 2)

R v Miles

Knight v Regina

R v Kalajzich

R v Petrinovic

R v Baker

R v Garforth

Regina v Willard

R v Mrish

R v Chetcuti

R v Crofts

R v Ngo

House v R

CCA 2002/2381

BEAZLEY JA
GROVE J
HOWIE J

17 June 2009

Bruce Allan Burrell v Regina

Judgment

1 THE COURT: On 6 June 2006, a jury convicted the appellant of the kidnapping and murder of Kerry Whelan. Mrs Whelan was seen at 9:38 am on 6 May 1997 walking up the ramp of the carpark at the Parkroyal Hotel in Parramatta. Apart from some possible sightings of her on that day and another possible sighting on 9 May 1997, she has not been seen since and her body has never been discovered. On 9 August 2006, Barr J sentenced the appellant to life imprisonment on the charge of murder and a term of 16 years imprisonment with a non-parole period of 12 years for the offence contrary to the Crimes Act 1900, s 90A.

2 The appellant appealed against his convictions and sought leave to appeal against his sentence. On 16 March 2007, the Court dismissed the appeal against conviction and granted leave to the appellant to appeal against the sentence, but dismissed the appeal: see Burrell v R [2007] NSWCCA 65 (the first appeal). However, because of factual errors contained in the judgment, the Court purported to reopen the appeal and reconsidered the grounds of appeal.

3 On 23 March 2007, the Court published a further judgment in which it again dismissed the appeals, but delivered different reasons: R v Burrell [2007] NSWCCA 79. The appellant was granted leave to appeal to the High Court in respect of both the first and second judgments. The central issue before the High Court was whether the Court of Criminal Appeal had power to reopen the appeals after orders had been made on the appeal and those orders been formally recorded. It was held that the Court of Criminal Appeal did not have that power. As the Court itself had acknowledged in its second set of reasons that its first set of reasons were based on erroneous matters, the High Court quashed the orders made by the Court and remitted the matter for rehearing of the appeal: Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428.

4 The orders made by the High Court in remitting the matter to this Court have implications for the rehearing, as discussed below. In particular, there is a question as to what grounds this Court was required to redetermine.

5 The appeal with which this Court is concerned is the rehearing ordered by the High Court. On the present appeal against conviction, the appellant relied on the following five grounds (the reference to the appeal ground number is a reference to the appeal ground in the original notice of appeal filed on 6 September 2006):

Shepherd v R

(2) That the trial judge had erred in directing the jury that the appellant’s counsel at trial had made incorrect statements of law in his address to the jury in respect of the Crown’s reliance on the indispensable intermediate facts (ground 2).

(3) That the trial judge erred in permitting further cross-examination by the Crown pursuant to the Evidence Act 1995, s 38, after cross-examination by the appellant of witnesses Francis Cater, Norman Elliott and Allan Burrell (ground 8).

Black v R

Black

(Grounds 8 and 9 are the grounds in respect of which there is a question as to whether they are to be reheard pursuant to the High Court’s order).

6 The appellant also appealed against the sentence of life imprisonment in respect of the conviction for murder (grounds 11 and 12).

The Crown case

7 The Crown case at trial was a circumstantial case, as there was no direct evidence linking the appellant to the disappearance of Mrs Whelan. Her body was never recovered. There were three major planks in the Crown case: (a) evidence suggesting that Mrs Whelan was last seen as a passenger in a vehicle similar to that of the appellant’s leaving the vicinity of the Parkroyal Hotel at Parramatta on the morning of 6 May 1997 and she was never seen again; (b) notes found in the appellant’s handwriting at his premises on 21 May 1997 which the Crown alleged were an outline of things that had to be done in connection with obtaining ransom from the disappearance of Mrs Whelan; and (c) a call made by the kidnapper on 23 May 1997 from Goulburn at a time when the appellant was in the city and from a telephone box that was admittedly used by him on the day of the call. This evidence was placed against a background of the appellant’s financial difficulties and his unexpectedly making contact with the Whelans shortly before Mrs Whelan’s disappearance.

The appellant’s financial difficulties prior to May 1997

8 The appellant was born and raised in the Goulburn district. He became employed as an advertising agent. Whilst working at The Advertising Works in 1985, he married his now ex-wife, Dallas Bromley. In 1988, the appellant and Ms Bromley, in conjunction with her parents, bought a 485 acre rural property called Hillydale near the village of Bungonia.

9 The appellant left The Advertising Works in 1989 and commenced employment with Crown Equipment. The appellant was retrenched in December 1990. The appellant then worked shortly at Printout and then for a few months with Peter Grace. He also did some sporadic freelance work.

10 In January 1995, Ms Bromley set up an advertising business with the appellant. The business prospered and, although the appellant was doing some freelance work, Ms Bromley was earning the majority of the income. Their marriage eventually deteriorated and in December 1996, they settled their financial affairs by each taking out a $125,000 loan and buying Ms Bromley’s parents’ share of Hillydale. Relevantly, as a result of those financial arrangements, the appellant retained ownership of Hillydale.

11 As at May 1996, Ms Bromley had stopped providing financial assistance to the appellant. It was clear from evidence led from the appellant’s father, Allan Burrell, that the appellant was in financial difficulty. He said that over the period of twelve months after the appellant’s separation from his wife, he loaned the appellant between $25,000 and $30,000 to assist him in maintaining Hillydale.

12 Peter Buckley was the director of Ultra Tune Australia. Between January and March of 1997, the appellant asked him to either gift or loan him $15,000 on six occasions. In March or April 1997, the appellant used these words: “Get me the fucking money. Just make it happen. Just fucking get it now”.

13 Analysis of several of the appellant’s bank accounts showed that by May 1997, the appellant had a balance of only $634.00, insufficient to pay off one month’s interest on his bank loan.

The appellant’s knowledge of Mrs Whelan

14 During the 1980’s, the appellant worked for a firm that did work for Crown Equipment, a company of which Mrs Whelan’s husband, Mr Bernard Whelan, was the Managing Director in Australia. The appellant came to know Mr Whelan when he attended a number of social functions at which Mr Whelan and Mrs Whelan were present. The appellant and Mr Whelan went on hunting trips together, and Mr Whelan and Mrs Whelan attended the appellant’s wedding in 1985.

15 Whilst employed at Crown Equipment, the appellant and his wife visited the Whelans’ home at Kurrajong for a tennis day. The appellant was also given the Whelans’ home telephone number and he would sometimes call Mrs Whelan at home.

16 After the appellant left Crown Equipment, he maintained contact with Mr Whelan until two events occurred. The first was the escape of some of Mr Whelan’s pedigree cattle from the appellant’s land, where they were being agisted, into a National Park. Mr Whelan’s cattle were expensive and not insured. The second was the theft of Mr Whelan’s .44 magnum semi-automatic rifle when it was in the possession of the appellant for sale to a neighbour. Following these events, Mr Whelan had very little to do with the appellant from 1993 until a phone call on 7 April 1997.

7 April: a telephone call from the appellant

17 After not speaking to each other for four years, the appellant telephoned Crown Equipment on 7 April 1997 asking to speak to Mr Whelan. Janet O’Hanlon, a personal assistant, received the call and told the appellant, whose voice she recognised, that Mr Whelan was unavailable. The appellant left a message asking Mr Whelan to call him. On his way home from work, Mr Whelan called the appellant from his car. The call dropped out, so he later called the appellant from home. The appellant engaged him in some general conversation, including asking whether Mr Whelan travelled much. Mr Whelan replied that he went to Adelaide every week or two.

18 Mr Whelan gave evidence that he was baffled as to the purpose of the call. It was the Crown case that the appellant learned that Mr Whelan would be visiting Adelaide on 15 April 1997 to attend a meeting the next day.

16 April: a visit by the appellant to Mrs Whelan

19 On 16 April, the appellant went unannounced to the Whelans’ house at Kurrajong. Mrs Whelan was there, as was her son, James, who was home from school ill. Upon reaching the front gate, the appellant realised it was locked. Instead of using his mobile phone, he returned about 10 km to Richmond to telephone the house.

20 Amanda Peters, who worked full-time for the Whelans looking after the horses and the children, answered the appellant’s call. The appellant said that he was “Bruce” and a friend of the Whelans. She told him that Mr Whelan was not home and that, although she had attempted to transfer the call to Mrs Whelan, Mrs Whelan was not answering and Ms Peters could not locate her. Ms Peters gave the appellant the code for the security gate and soon after the appellant arrived at the house.

21 Ms Peters saw the appellant’s vehicle arrive at the house but she did not see him meet Mrs Whelan or what they did or where they went. At some point, she entered the kitchen of the house and saw Mrs Whelan hand a cup of coffee to the appellant. They then went outside to drink it. A while later, Ms Peters saw Mrs Whelan and the appellant get up from the outdoor table and chairs. The appellant gave Mrs Whelan a kiss on the cheek and then left. The visit lasted about 40 minutes.

22 Mrs Whelan asked Ms Peters not to tell anyone of the appellant’s visit. She said that it was a surprise that she would reveal in a couple of weeks. She made it clear to Ms Peters that she was not having an affair. She never told her husband of the visit.

23 The appellant told police on 21 May that on the morning of 16 April he had telephoned Crown Equipment and was told that Mr Whelan was not in that day. No person who was in a position to answer such a call had a recollection of the call and it was against company policy to inform callers of Mr Whelan’s movements.

16 April to 6 May: the appellant’s bad back

24 Between the visit on 16 April and 6 May, the appellant spoke to a number of people complaining of back pain. On 2 May, he contacted Dr Harmon seeking medical advice in regard to an old back injury, which he said had flared up again. The appellant was not one of Dr Harmon’s patients. On 4 May, the appellant attended the property of his neighbours, Mr and Mrs Cooper. During this visit the appellant told them that he had a bad back.

25 On 5 May, the appellant made a purchase from Woolworths in Goulburn at 8:31 am and cashed a cheque at about mid-morning.

26 On 6 May, between 6:00 am and 8:00 am, the appellant made a call to Mrs Cooper, his neighbour, in which he mentioned the problem with his back.

27 The appellant told investigating police officers that he had been at Hillydale, on 6 May, incapacitated.

6 May: Mrs Whelan disappears

28 On 6 May, Mrs Whelan had arranged to exchange vehicles with Ms Peters so that the vehicle Ms Peters drove could be serviced. She arrived at Ms Peters’ mother’s home in Glossodia at about 8:20 am. Mrs Whelan was looking forward to going to Adelaide with her husband overnight. She seemed happy, although she looked at her watch a number of times as she said she had an appointment in Parramatta at 9:30am. The Whelans’ household diary showed “9:30” on the page for 6 May 1997 written in Mrs Whelan’s handwriting. She left for Parramatta from Ms Peter’s home at 8:45 am.

29 After leaving Ms Peter’s home, Mrs Whelan had two telephone conversations with her husband. She told him that she was going to Parramatta that morning to see a beautician or a skin specialist for a skin condition. She said she would leave her car where she usually parked it, in the Parkroyal Hotel in Phillip Street. She had arranged to meet her husband at Crown Equipment at 3:45 pm.

30 At about 9:40 am, Mrs Whelan arrived at the Parkroyal Hotel car park. She was seen by two people, the car park attendant, Mr Mascari and a Mr Shah. Mr Mascari told Mrs Whelan that the car park was full but he would look after her vehicle. He gave her a parking ticket and she walked up the ramp from the car park. She did not seem distressed.

31 Mr Shah had parked his vehicle at the car park at about 9:38am. As he walked up the ramp there was a woman on the other side ahead of him. He heard Mr Mascari call out to her about her keys and she told him they were in the vehicle. Mr Shah went to the left and the woman, whom he identified as Mrs Whelan, exited the ramp to the right. He thought she was walking towards an off-white sedan, not a four-wheel drive vehicle, parked outside the hotel.

32 Ms Peters attempted to contact Mrs Whelan on her mobile telephone at about 1:30 pm and at 3:30 pm. On neither occasion was she able to get through to Mrs Whelan’s phone. She was on her way to pick up James Whelan from school at about 3:45 pm, when Mr Whelan rang and asked whether she had any recent contact with Mrs Whelan.

33 When Mrs Whelan did not appear at Crown Equipment at the arranged time, Mr Whelan called her, and continued to call her until 4:40 pm, when he drove to Parramatta to look for her. After finding Mrs Whelan’s car in the car park with the keys still in the ignition, he became worried and asked the car park attendant to call ‘000’. He later attended at Parramatta police station and reported his wife as missing.

34 At the time of her disappearance, Mrs Whelan was wearing jewellery to the value of $50,000 and a valuable watch that her husband had given her on his recent return from Asia. Her passport was in a safe at home. A joint bank account was untouched after her disappearance.

Surveillance footage

35 In the course of the investigation that ensued, police inspected camera surveillance footage of the Parkroyal Hotel captured on 6 May. Of relevance, from 9:01:00 to 9:01:24 am, is an image of a Pajero 4WD, the type of vehicle in possession of the appellant, moving forward outside the Parkroyal Hotel. At 9:38:03 am, Mrs Whelan is seen walking up the right-hand side of the car park ramp and exiting the ramp. From 9:38:08 to 9:38:12 am, there is a dark image, which the Crown suggested was the top of Mrs Whelan’s head walking towards the Pajero.

36 From 9:38:45 to 9:38:46 am, the Pajero can be seen pulling away from the Parkroyal Hotel. This occurred 42 to 43 seconds after Mrs Whelan exited the car park ramp.

37 Police investigated hairdressers, beauticians, and skin specialists in Parramatta, but found no trace of Mrs Whelan having an appointment or having attended those premises on the day of her disappearance.

6 May: possible sightings of Mrs Whelan in Parramatta

38 Frances Carter worked on George Street Parramatta, and gave evidence that she saw a woman, she believed to be Mrs Whelan, on 6 May 1997 sometime between 10:00 and 10:15 am. Her evidence was that when she was going for a walk around the block she saw “Mrs Whelan” walking towards her. “Mrs Whelan” seemed spaced out, on drugs, in shock or in need of help. Mrs Carter also noticed a man walking with “Mrs Whelan”. He appeared to be of Anglo Saxon descent, was shorter than she and was of a slimmer build. He was walking very close to “Mrs Whelan” and appeared to be in control and not worried.

39 Norman Elliott saw a person he believed to be Mrs Whelan on 6 May 1997. At about 9:35 am, he parked his company vehicle in Phillip Street on the opposite side of the Parkroyal Hotel, about 50 or 60 m away from it. He needed to go to the toilet. While walking towards the Parkroyal Hotel, he saw “Mrs Whelan” and a young man walking up the car park ramp. After coming out of the toilet, he saw the same woman standing near the lane that runs towards the David Jones car park beside the Parkroyal Hotel. He saw a different male standing with her who appeared to be “chatting her up”. He overheard “Mrs Whelan” say, “how do you know that?” and after a short pause, she said, “that’s right”. After returning to his vehicle and doing a U-turn, he saw a white commercial-type van come out of the lane where he had seen the two persons standing. When the van had gone, he could no longer see the man or “Mrs Whelan”.

7 May: a ransom note is delivered

40 On 7 May, Mr Whelan was at home at Kurrajong. The mail was collected and at about 5:00 pm he opened it. There was a ransom note that demanded the payment of $US1 M and gave instructions about an advertisement that was to be placed in the Daily Telegraph when the money was ready for collection. The note also stated that after the advertisement was placed in the newspaper “we will be in touch within three days at your home to tell you the next step”. There was a direction that the money was to be delivered by Mr Whelan and only by Mr Whelan, that he must be alone and neither he nor his car was to be wired. He was not to use his car radio. The money was to in $AU100 bank notes, the notes were not to be consecutively numbered and not treated with dye or radioactive dust. It was to be delivered in a green plastic bag. The note stated that complying with its terms was “your only means of ever seeing her alive again”.

41 The note set out the advertisement to be placed in the following terms:

.

42 The ransom note also stated:

“TO ENSURE HER SAFE RETURN YOU MUST AT NO TIME BRING IN THE POLICE THE PRESS ANY AUTHORITIES OR OUTSIDE ASSISTANCE. WE WILL KNOW IF YOU DO SO.”

43 Notwithstanding this command, Mr Whelan immediately contacted the police. Mr Whelan had also been advised to contact a person, reputed to have criminal connections and whom he had met previously, as he might be able to help gather information. At Mr Whelan’s request, Ms Peters’ mother made contact with this person, a man maned Karl Bonnette. About a month after the disappearance, Mr Whelan spoke to Mr Bonnette at a party. He advised police that he had done this. Mr Bonnette later said that he had been unsuccessful in finding out anything. Mr Whelan admitted having discussed some aspects of the ransom note with Mr Bonnette, but not the amount of the ransom nor the requirement to place the advertisement in the paper.

44 Mr Bonnette gave evidence that he was not at the Whelans’ house when the ransom note arrived. He was unaware of its contents until Ms Peters told him about it after the contents were published in the media. He denied any involvement in the kidnapping.

45 The ransom note was tested for fingerprints and DNA. The only fingerprints identified were those of Mr Whelan and his son. No DNA evidence was found.

9 May: possible sighting of Mrs Whelan in Brisbane

46 Robyn Lambert was a customs officer at the Brisbane International Airport and gave evidence that on 9 May 1997 between 10:30 and 11:00 am, she observed a very emotional and distraught woman who said she did not think that she would ever see her children again. On 23 May, Ms Lambert became aware of the disappearance of Mrs Whelan. That night she realised that woman she processed on 9 May looked like Mrs Whelan.

13 May: an advertisement is placed

47 Mr Whelan placed the advertisement in accordance with the ransom note in the Daily Telegraph on 13 May. The appellant was seen purchasing the Daily Telegraph from an Ampol service station on this day. The advertisement ran until 21 May 1997, but there was no response from the kidnapper.

16 May: the appellant’s vehicle is seized

48 On 16 May 1997 in Goulburn, police spoke to the appellant and took possession of his Pajero. Also on this day, police executed a covert search warrant on the appellant’s home. There was no sign of Mrs Whelan.

21 May: search of

Hillydale

and two notes are found

49 On 21 May 1997, police executed a search warrant on the appellant’s Hillydale property. The search lasted five days. Police took possession of, inter alia, a silver 1995 Jaguar Sovereign sedan motor vehicle. Found underneath the front passenger seat of that vehicle was a UBD street directory. The position of the Parkroyal Hotel was highlighted in purple and the hotel’s address written in the margin.

50 Two Woolworths dockets, dated 5 May 1997 and 23 May 1997 were taken into police possession.

The notepads

51 Two notepads were taken from the appellant’s home. The foolscap notepad contained this writing on the last page:

52 These notes were referred to at trial as the ‘dot point notes’.

53 It was the Crown case that the shorthand in the dot point notes meant:

54 A document examiner gave evidence that the writing in both notepads was the appellant’s handwriting. The appellant conceded at trial that he had written the notes.

The typewriter

55 Police also took possession of a Canon QS100 typewriter. A “Courier 10” daisywheel was in the typewriter. The document examiner concluded that the ransom note was created with an “Orator 10” daisywheel, but that the daisywheel could easily be removed from the typewriter and replaced. Both of these types of daisy wheels could be used in this typewriter.

56 A total of 22 exhibit bags were filled with documents seized from the appellant’s house. At the end of the search, the appellant checked and signed the exhibit record. Detective Sergeant Allan Duncan and Detective Sergeant Richard Agius picked up the exhibits from Goulburn Police Station on 23 May 1997. Some were taken to Lidcombe Analytical Laboratories and some to Parramatta Police Station.

57 Evidence was led from Detective Sergeant Duncan that the two officers had travelled from Goulburn Police Academy on the morning of 23 May 1997 to Goulburn Police station. They then travelled to Hillydale, where they conferred with other police. From there they travelled to Lidcombe Analytical Laboratories and from there, went to Parramatta Police Station. Evidence was led from Detective Sergeant Agius that the officers went from Goulburn Police Academy in the morning, to Hillydale, then to the Goulburn Police station, then next to Lidcombe, and then to Parramatta.

First record of interview with appellant

58 The appellant was formally interviewed at Goulburn Police Station on 21 May 1997. He answered questions about his relationship with the Whelans. He admitted attending their home on 16 April because he was in the area, staying with his father at Balgowlah. He intended to see Mr Whelan in the hope of obtaining freelance work. When he learned that Mr Whelan was not at the office, he assumed he was at home. Mrs Whelan later told him her husband was away and offered to speak to her husband for him. He was at the property for about an hour and a half.

59 He said that he was at home on 6 May, incapacitated with a sciatic nerve problem. He spoke with Dr Harmon on 2 May who advised him to take Panadol and Morphine. A neighbour had suggested he see a physiotherapist. He rang to make an appointment, but cancelled it because he could barely move. He denied meeting Mrs Whelan on 6 May. He admitted his finances were “pretty damn low”.

23 May: the kidnapper telephones from Goulburn

60 At around 9:30 am on 23 May 1997, Kathleen Pemberton, a receptionist at Crown Equipment, received a telephone call from the kidnapper. The caller said that Mr Whelan ought to call off the police and media “today” and that he would be in touch in two weeks. The caller had knowledge of the ransom note. Ms Pemberton said that the caller had a “deep, husky-tone” voice and that he did not have an accent, sounded educated and in his 40s.

61 The call was made from a public telephone booth located outside the Empire Hotel on Auburn Street, Goulburn.

Voice identification

62 In December 1997, Inspector Peter Walsh played seven tapes with seven different voices to Ms Pemberton. Ms Pemberton listened to the tapes twice and then selected tapes C and D as having voices closest to that of the caller. The voice on tape C belonged to Senior Constable Michael Lewis, and the voice on tape D belonged to the appellant.

63 Sergeant Warren Hamilton was present at Hillydale on 23 May and kept a log for the day. He recorded that the appellant left the property at 7:20 am on a blue quad bike, returned at 9:55 am in a white utility, left again at 10:00 am in the white utility and finally returned at 10:15 am on the quad bike.

64 Phillip Broadhead, the appellant’s neighbour, gave evidence that the appellant arrived at his property on the quad bike just before 8:00 am. The appellant left with his utility around 8:00 am. At almost 10:00 am, the appellant returned in the utility and then left on his quad bike.

65 The appellant admitted to making a telephone call from a public telephone booth on Auburn Street Goulburn between 9:20 and 9:30 am. He asserted that this call was to his solicitor. Emma Hill was a receptionist for the solicitor and gave evidence that the call from the appellant was made between 9:00 and 9:10 am, based upon her contemporaneous note of calls made that day. The appellant called again at 2.17 pm, confirming a future appointment.

66 On 25 May 1997, Sergeant Nargis Fam examined the telephone booth on Auburn Street and found no fingerprints that matched any persons of interest, including the appellant.

15 June: second record of interview

67 An interview was conducted with the appellant at his property on 15 June 1997. He admitted his financial situation was not good and he was looking for work. He said that he telephoned Mr Whelan on 7 April to look for work but thought it was better to speak to him face to face. He learned in that telephone call that Mr Whelan was doing a lot of business in Adelaide. Mr Whelan confirmed in his evidence in chief that he told the appellant in this telephone call that he usually had a meeting on a Wednesday in Adelaide either every week or every second week.

68 The appellant said he was at home from 2 to 9 May with a sciatic nerve problem and that he did not go to Parramatta on 6 May. He said had a physiotherapy appointment for later that week but he cancelled it because he was unable to get out of bed.

69 He said that on 23 May while police were searching his property he borrowed his neighbour’s vehicle to go into Goulburn for some shopping. While there he rang his solicitor at about 9:00 am from the post office. He rang again about 20 minutes later from the phone box in Auburn Street.

70 Janelle McDonald was a bank clerk at the Westpac Bank in Goulburn. Her evidence was that she cashed a cheque for the appellant on 5 May at the Bank. She asked him for identification because he was not a regular customer.

Other matters

Kidnapping and death insurance policies

71 Mr Whelan had been given, about 15 years before his wife’s disappearance, an envelope from the President of Crown Equipment with instructions that it was only to be opened when he or other senior executives were under threat. After the disappearance of Mrs Whelan, he opened the envelope and learned that the company had a kidnapping insurance policy in place.

72 On 13 May 1998, Mr Whalen received an e-mail from the President of Crown Equipment, informing him of the existence of a $US100,000 death benefit. The e-mail said that this was being brought to his attention as a result of what had been reported in the papers. Mr Whelan at some later stage received an insurance benefit in the sum of $US100,000. He denied under cross-examination of being aware of these policies before the disappearance of his wife.

Trevor Whelan

73 Mr Whelan’s adopted son from his first marriage gave evidence that he was angry and bitter towards his father after his father separated from his mother to start a relationship with Mrs Whelan. However, he became reconciled and attended their wedding. He said he had a good relationship with Mrs Whelan, who was about his age.

74 Mr Whelan said that in 1980 or 1981, Trevor had threatened to kill him with a knife. In 1980, Mr Whelan had excluded him from his will. After they were reconciled, Trevor worked for Crown Equipment for a short period and then with Mr Whelan in an enterprise involving boats called Whelan Marine. When that business came to an end, Mr Whelan did not have any contact with Trevor until the time of Mrs Whelan’s disappearance. Mr Whelan described Trevor as being a very violent and disturbed person at that time and had no further contact with him after he made threats to a member of the family in 1995. Trevor had never threatened Mrs Whelan.

75 Trevor said that at the time of Mrs Whelan’s disappearance, he was not in regular contact with his father and was unaware they were living in Kurrajong. He thought they lived in Castle Hill. He agreed in cross-examination that in a drunken state he would ring his father and threaten him and that he could become violent when intoxicated.

The appellant’s case at trial

76 The appellant’s case in general was that there was no, or insufficient, evidence to connect the appellant with the disappearance of Mrs Whelan. In particular, the appellant denied that the Crown could prove that Mrs Whelan left the vicinity of the Parkroyal Hotel in a vehicle similar to that of the appellant on 6 May and was never seen again.

77 There was evidence to support the appellant’s claim that he had a back condition. Dr Allan Watts was working at Carcoar District Hospital when the appellant sustained an injury following a fall while unloading hay, in 1982 or 1983. Dr Watts gave evidence that the injury was close to the path of the sciatic nerve and could have caused it damage, which could result in ongoing back pain.

78 There was evidence of attempts by the appellant to find work. Des Bridekirk had worked with the appellant in the late 1970s and 1980s at Country TV in Orange. The appellant called him in 1997 and asked whether he knew of any employment opportunities in the television industry. Mr Bridekirk could not help him but they agreed to catch up with each other. The appellant contacted Anthony Cavanagh by phone on 30 April or 7 May 1997 and asked whether he had any leads for the appellant to get back into advertising. Mr Cavanagh could not help him.

79 It was the appellant’s case at trial that a police officer may have made the telephone call to Crown Equipment on 23 May 1997. A number of police officers were cross-examined on this possibility.

80 The appellant’s case suggested that there were other possible suspects, including associates of Mr Whelan who had criminal associations, such as Mr Bonnette. There was also Trevor Whelan. It was also put to Mr Whelan that he was having an extramarital affair with, for example, Ms Peters. The suggestion was that this provided a motive for Mr Whelan having killed his wife.

Grounds 1 and 2: the requirement for a

Shepherd

direction

81 Grounds 1 and 2 are set out above at [5] and may be considered together, as they raise the same essential question, namely, whether a Shepherd direction should have been given in this case.

82 The appellant contended that the Crown case depended upon the following indispensable intermediate facts being established:

(1) that Mrs Whelan in fact left from the front of the Parkroyal Hotel by way of the Pajero 4WD seen in camera 7 at 9.38.45/46 am on 6 May 1997 (the Pajero evidence);

(2) that the terms of the two dot point notes found at the appellant’s home on 21 May had the meaning ascribed to them by the Crown’s theory, that is, that they were an outline of the things to be done in connection with obtaining the ransom (the dot point evidence); and

83 The appellant submitted that in accordance with the principles stated in Shepherd the jury had to be satisfied of each of those matters beyond reasonable doubt, the trial judge was required to direct to that effect. His Honour failed to do so. Alternatively, the appellant contended that his Honour erred in failing to direct the jury that if the jury was to convict him upon any one of the three independent bodies of evidence, at least one indispensable intermediate fact had to be found beyond reasonable doubt.

The principles in

Shepherd v R

84 In Shepherd, the High Court was concerned with the directions required to be given to a jury in a case based on circumstantial evidence. The High Court recognised in that case that an apparent misunderstanding had arisen out of the joint judgment of Gibbs CJ and Mason J in Chamberlain v The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521. The misconception was that in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon individual items of evidence, each of which had been proved beyond reasonable doubt.

85 Dawson J (Mason CJ, Toohey and Gaudron JJ agreeing) explained both the misconception and the correct position in these terms, at [14]-[15] 585:

“The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts - individual items of evidence - proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

86 Earlier in his judgment, at [4]-[5] 579, Dawson J said in respect of the matters of which a jury had to be satisfied in a circumstantial evidence case, and the directions required to be given by a trial judge in such a case:

“Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. 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 inference. 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, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. 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, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.

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.

It should not be given in any event where it would be unnecessary or confusing to do so

87 Dawson J reiterated the fundamental proposition that the prosecution bears the burden of proving all the elements of the crime beyond a reasonable doubt. As his Honour noted, that means that the essential ingredients of each element must be proved beyond reasonable doubt. It does not mean that every piece of evidence relied upon to prove an element by inference must itself be proved beyond reasonable doubt. His Honour referred, by way of example, to the element of intent, noting that, save for certain statutory exceptions, intent is an ingredient of every crime and that, apart from admissions, must be proved by inference. His Honour continued, at [6] 580:

“But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.”

88 McHugh J also emphasised the cumulative nature of circumstantial evidence, stating at [10] 592:

Reg. v. Kilbourne

‘Circumstantial evidence ... works by cumulatively, in geometrical progression, eliminating other possibilities.’”

89 His Honour continued that in a case based on circumstantial evidence, the jury was not concerned with the question whether any particular fact has been proved beyond reasonable doubt, but whether, if an inference of guilt is open on the evidence, that inference has been proved beyond a reasonable doubt. As his Honour explained, at [11]-[12] 593:

“… [t]he cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

90 The application of these principles was considered by the Court in R v Merritt [1999] NSWCCA 29. There, the Court (Wood CJ at CL, James and Adams JJ) said, at [70], that it is for the trial judge to determine whether it is necessary to give a direction in respect of the standard of proof of what are, or might be, indispensable intermediate facts. In deciding whether such a direction is necessary, the Court said that the trial judge should consider whether the jury might reasonably regard certain facts to be indispensable intermediate facts, even if the judge does not. Importantly for present purposes, the Court also said, at [70] (in a passage relied upon by the appellant):

“… 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 before convicting.”

91 In Merritt, the Court considered, at [71], that there were relatively so few incriminating facts that it was incumbent upon the trial judge to identify for the jury the crucial factual matters and assist the jury in applying the legal rule requiring proof beyond a reasonable doubt of the Crown case to those facts. The Court continued that the trial judge should direct the jury:

“… in particular … that if they [regard] any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict. We do not think that this was a case of such simplicity as to enable a general direction concerning the onus and standard of proof to suffice.”

92 In Minniti v R, [2006] NSWCCA 30; 159 A Crim R 394; 196 FLR 431 a question arose as to how a trial judge ought determine whether a direction in respect of indispensable intermediate facts is necessary. Sully J, with whom Hoeben and Latham JJ agreed, referred, at [35], to the metaphorical description used by Dawson J in Shepherd distinguishing the case where the evidence consists of “strands in a cable” rather than “links in a chain”. Sully J asked what were the principles upon which a trial judge could determine whether the case was one calling for “links in a chain” directions; or, rather, a case calling for “strands in a cable” directions. His Honour noted that the problem was a real one, as in Merritt itself, the Court, at [69], said that the case could reasonably have been considered either a “links in a chain” case or a “strands in a cable” case.

93 Sully J acknowledged that in such a case, it is easy to understand why directions dealing with both circumstances are required. His Honour’s concern, however, was that that there was no clear statement of principle by reference to which a particular case could be categorised as a “links in a chain” case as distinct from a “strands in a cable” case. His Honour, at [42], drew assistance from what Hunt CJ at CL, with whom Sully and Levine JJ agreed, said in R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported) in relation to the manner in which the topic of lies was treated in a particular case. The passage from Taylor is as follows:

“The ground of appeal numbered 6B asserts that the judge misdirected the jury as to lies. In his written submissions, counsel for the appellant complained that the judge failed to identify the particular lies which could be considered by the jury as evidencing a consciousness of guilt, and that he should have directed them ‘that, before they could use the telling of a lie as an independent proof of guilt, they would have to be satisfied as to the lie and its character beyond reasonable doubt’.

Regina v Dellapatrona

Edwards v The Queen

Regina v Sandford

Regina v Small

94 In R v Zaiter [2004] NSWCCA 35 Ipp JA considered, at [8], that if one particular factual matter was removed from the list of facts relied upon by the Crown to prove its case, one was “left with an empty shell” and, accordingly, a direction should have been given that that was an indispensable intermediate fact that had to be proved beyond a reasonable doubt.

95 The comments of Hunt CJ at CL in Taylor, relied upon by Sully J in Minniti say no more than that the trial judge must give careful consideration to the Crown case in order to determine whether a direction should be given to the jury in respect of intermediate facts. The analysis of the factual circumstances in Zaiter is an example of when a fact might properly be considered an indispensable intermediate fact in respect of which a direction is required. A trial judge has to be astute, therefore, to analyse the facts and circumstances of the particular case to determine whether a Shepherd direction should be given.

96 That this is so was emphasised by this Court recently in Davidson v R [2009] NSWCCA 150. Spigelman CJ, at [8], noted that in a case like Merritt where there were only two intermediate facts, it would not be “ ‘unnecessary’ nor ‘confusing’ “ to give a Shepherd direction. However, in a case where:

Minniti

Hannes v DPP (Cth) (No 2)

97 We have already referred to Minniti. In Hannes Hall J, after referring to the comment by Dawson J that a Shepherd direction should not be given if it was “unnecessary or confusing to do so” (being the second bolded portion of the passage set out at [86] above), said, at [665]:

Merritt

98 In Davidson Spigelman CJ noted that having regard to these later authorities, the statement in Merritt at [70] may need to be reconsidered. His Honour then referred to Velevski v R [2002] HCA 4; (2002) 187 ALR 233; R v Hillier [2007] HCA 13; (2007) 228 CLR 618 and R v Keenan [2009] HCA 1; (2009) 83 ALJR 243. The relevant passages from those authorities bear directly upon the question whether the trial judge erred in this case in not giving a Shepherd direction and hence should be set out verbatim.

99 In Velevski Gleeson and Hayne JJ said, at [43]-[44]:

“It was next submitted that, even if it was permissible to leave the alleged lie to the jury in the way it was, it was necessary, in the circumstances, to give the jury a direction that they could rely upon an intermediate fact as a link in a chain of reasoning only if satisfied beyond reasonable doubt of that intermediate fact. Stated in that form the proposition is legally accurate but its recitation to the jury would be of no assistance unless its application to this case were explained. How that could have been done in this case was not made clear. It was submitted that the jury may (but need not) have concluded that the telling of the lie settled any reasonable doubt that consideration of the other evidence tendered at trial allowed. If the jury followed this path, it would, so it was said, make the telling of the lie an indispensable intermediate fact. It was the possibility that the jury might reason in this way that called, so it was submitted, for judicial instruction about how it should be undertaken.

100 In Hillier, Gummow, Hayne and Crennan JJ (Gleeson CJ agreeing), said, at [46]:

“… It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.” (Citations omitted)

101 Their Honours further stated, at [48]:

“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.”

102 Their Honours referred to Chamberlain v R (No 2) where Gibbs CJ and Mason J said, at [15] 539:

Belhaven and Stenton Peerage

Reg v Van Beelen

Thomas v The Queen

Plomp v R

I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.

Hillier

103 In Keenan Keifel J noted at [126] that the “usual direction” given in a circumstantial evidence case that the accused could only be found guilty if no other inference favourable to the accused was reasonably open, was no more than an amplification of the principle that the prosecution must prove its case beyond reasonable doubt. Her Honour, at [128], observed that in Hillier the Court had said that a case was not to be considered piecemeal and added that it was of critical importance that all the circumstances established by the evidence be considered.

Was a

Shepherd

direction required in this case?

104 The Crown contended that the appellant’s motive for kidnapping and murdering Mrs Whelan was his desperate financial situation. It contended that his financial circumstances were such that they necessitated a desperate move and that desperate move was kidnapping Mrs Whelan for a ransom. It relied upon a large body of circumstantial evidence to prove that the appellant had kidnapped and murdered her. However, the Pajero evidence, the dot point evidence and the telephone call evidence were the three prominent factual circumstances upon which the Crown relied.

105 The appellant contended that these three areas of evidence were indispensable intermediate facts which required the judge give a direction that the jury had to be satisfied of each beyond a reasonable doubt before they could convict the appellant. ground 1(a). The appellant argued in the alternative that the jury had to be satisfied beyond a reasonable doubt of at least one of the three before being able to convict: ground 1(b).

106 As the appellant’s case was developed in oral argument on the appeal, the emphasis was in respect of the Pajero evidence. That evidence, on the appellant’s argument was the only evidence capable of demonstrating a physical connection between the appellant and Mrs Whelan. The appellant submitted that this was a critical indispensable intermediate fact in the jury’s chain of reasoning in determining whether the appellant was guilty of kidnapping and murdering Mrs Whelan. The jury had to be satisfied beyond a reasonable doubt that Mrs Whelan left the front of the Parkroyal Hotel in the Pajero at 9:38 am on 6 May and the jury should have been so directed by the trial judge.

107 The Crown submitted that its case as presented at trial was that this was a “strands in a cable” case, not a “links in the chain” case and the trial judge had correctly so directed the jury. The Crown submitted that this case did not require a Shepherd direction. Rather, as was the case in Shepherd, itself grouping the evidence into separate categories was done as a matter of convenience. The convenience in doing so did not convert the case into one where a direction was required in respect of indispensable intermediate facts. Dawson J had referred to this in Shepherd when he said, at [16] 586:

“Whilst it was possible to categorize the evidence in this manner and, no doubt, convenient for certain purposes to do so, it was not necessary for the jury to reach any conclusion upon the evidence in one category before considering the evidence in another. Indeed, the only proper course for the jury to adopt was to consider all the evidence together. Nor was it necessary for the jury to reach any particular intermediate conclusion of fact in making an inference of guilt on the part of the applicant, other than the obvious one, tantamount to an inference of guilt, that the applicant was engaged in a combination of the kind alleged against him. Of course, the jury could not properly have made that inference unless they were satisfied that, upon the whole of the evidence in all three categories, there was no reasonable explanation consistent with the applicant's innocence. It was appropriate that the jury should have been given a direction in those terms and they were given one. The case did not admit of any further direction upon the standard of proof required, save, of course, for the ordinary direction that the prosecution was required to prove its case beyond reasonable doubt.”

108 The appellant contended, however, that a problem arose, because of the manner in which the Crown put its case to the jury, such that a Shepherd direction was required. Counsel for the Crown, having identified the appellant’s alleged motive, said in his closing address to the jury on 15 May 2006:

“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 for his vehicle outside the Parkroyal Hotel. Finished.

If you are satisfied beyond a reasonable doubt that those dot-point notes contained his early thoughts about a kidnapping and a ransom note, that’s the end of it. You would have to convict him. There is no other explanation for why he would have written such notes.

If you are satisfied beyond a reasonable doubt that he made that call to Crown Equipment from outside the Empire Hotel on 23 May, that’s the end of it: You would have to convict him, because there is no other possible explanation other than that he was the kidnapper.

109 Prior to the trial recommencing before the jury on 16 May 2006, the Crown Prosecutor informed the trial judge that the appellant’s counsel, Mr Dalton SC, had brought to his attention that in his address the previous day, he had stated that the jury had to be satisfied of the telephone call evidence beyond a reasonable doubt. Counsel for the Crown then sought to clarify to his Honour what the Crown’s position was. He said:

“… 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 the 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 the direction from your Honour that they needed to be satisfied of it beyond a reasonable doubt before they could convict.”

110 His Honour stated:

“I didn’t so understand it, Mr Crown and Mr Dalton. I wouldn’t have expected the Crown to be directing the jury on matters of law as important as those.”

111 The appellant contended that the Crown’s statement to the jury demonstrated that it was in fact relying upon the three categories of evidence as indispensable intermediate facts, notwithstanding what the Crown said to the trial judge on 16 May (see [109]). Accordingly, it was submitted that the trial judge erred in the following passages of his summing up to the jury:

“Mr Dalton says to you that you cannot be satisfied beyond reasonable doubt that Mrs Whelan was abducted by [the appellant]. I have told you the things you have to be satisfied about beyond reasonable doubt and that is one of them. You must be satisfied that [the appellant] abducted, detained Mrs Whelan.

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 for the journey to the airport and to Adelaide and clearly, if she was kidnapped, she had been kidnapped by then.

Both counsel have said things to you in their closing addresses that may possibly lead to a misunderstanding of the law. I have told you that you are to judge this case on the evidence, and that means all the evidence.

The Crown submitted to you that you could be satisfied beyond reasonable doubt, on the evidence of the events at Parramatta on 6 May that [the appellant] was the kidnapper. Whether you can be satisfied beyond reasonable doubt about that conclusion on that evidence alone, I do not know, and I express no view about it.

The point I wish to make now is that what the Crown said to you may have given you the impression that you can properly find [the appellant guilty only if this evidence, standing by itself, is sufficient to prove beyond reasonable doubt that [the appellant] was the kidnapper.

That is not the law. You are not restricted to any piece of body of evidence, when deciding whether the Crown has proved the guilt of [the appellant], whether the Crown has proved any essential element on either of the charges. You should judge the case on all the evidence.

In the same way, Mr Dalton said to you that he understood that I would be directing you that you were not restricted to a consideration of the Parramatta evidence in deciding whether the Crown had proved the guilt of [the appellant] and he went on to refer to two other bodies of evidence; namely, the evidence of the telephone call of 23 May and the evidence of the dot-point notes found at [the appellant’s] house.

‘Apparently the trial will be left to you on the basis that, even if you cannot be satisfied, which in our submission you clearly cannot be, that Mrs Whelan had left by way of that Pajero outside the Parkroyal Hotel, you could still rely upon other material in the nature of the dot-point notes and/or the phone call.’

‘Still, as I understand, the matter would be left to you, even if he was not at Parramatta, even if it was not his vehicle and it was not there at Parramatta on the morning of 6 May at 9.38, we can still convict on other evidence and that other evidence will be the dot-point notes on the one hand, and/or the telephone call on 23 May.’

Last Friday Mr Dalton – and I think this Monday – made a number of references saying that the Crown relied on ‘those three flawed bricks,’ referring to the Parramatta evidence, the telephone evidence and the dot-point note evidence.

They were not correct statements of the law. You are not restricted, in deciding whether the Crown has proved its case on kidnapping or murder, to evidence of events at Parramatta or the dot-point notes, or of the telephone call to Crown Equipment, or to any two of those bodies of evidence, or even to all three. In coming to your decision on any element of the charge, you are to take into account every piece of evidence in the case that, in your view, is capable of bearing upon your decision,

219 That then leads to the question whether his Honour should have discharged the jury, rather than give a Black direction. The appellant submitted that the juror’s note may have given rise to a reasonable apprehension of suspicion of bias in a fair-minded and informed member of the public, in two ways. First, it was submitted that the note revealed that the intractable majority would not discharge their task impartially and, secondly, it demonstrated that the minority juror would not or could not discharge his/her task impartially, because of that juror’s evident distress. The Court on the first appeal rejected this submission. The Court noted that the jury had been in deliberation for a number of days (at least seven and a half days). The Court considered that it was not unexpected that during that period of time, certain positions would have been taken and that the case was undoubtedly subject to rigorous debate. McClellan CJ at CL stated, at [294]:

“It could not rationally be suggested that all jurors must come to the same conclusion at the same time before they may enter a valid verdict. If it could be argued that a minority juror’s decision to join the majority gives rise to an inference of bias, then in almost any case where the jury deliberated for any length of time there may be grounds for discharge.”

220 At [297], McClellan CJ at CL identified the issue for the Court’s determination as being whether the trial judge erred by giving a Black direction when, because of the juror’s note, his Honour knew that the minority juror was under pressure from the majority. His Honour noted that the giving of the direction was a matter for his Honour’s discretion. His Honour had presided over a lengthy trial with the attendant advantage of being able to assess the demeanour of the jury. His Honour did not find it surprising that a minority juror felt pressure from the other jurors. However, that factor, of itself, would not give rise to concerns that a miscarriage of justice had, or was, occurring. In any event, any ability of the jurors to exert pressure on a minority juror by threatening to reveal that juror’s transgressions was dispelled by his Honour’s unequivocal direction stated in open court, that they were not matters of concern.

221 McClellan CJ at CL concluded, at [299]:

Black

222 We agree with his Honour’s reasoning and nothing further was put in submissions to this Court to explain why that reasoning was not available.

223 Finally, the appellant submitted that the Black direction should have been modified. The modifications that should have been made, on the appellant’s submission, were that “the jury be told that the direction was the normal given in such circumstances” and that the fact of giving the direction or its terms should not be perceived as pressure being exerted by the Court on any juror to compromise his/her decision, nor be used by the majority to try and force the minority to compromise their position.

224 The trial judge gave careful and clear directions to the jury which addressed these matters. Those directions are set out at [301]-[302] of the judgment in the first appeal and it not necessary to set them out again. We agree with the Court’s opinion in that case that the directions were appropriately formulated.

225 Finally, we agree with the Court’s determination in the first appeal that there was no error in the trial judge’s failure to enquire at the end of 5 June as to whether there was any real prospect of reaching a unanimous verdict. As the Court pointed out in the first appeal, after his Honour gave the first direction, it was for him to determine when it was appropriate to enquire as to the jury’s progress in their deliberations. There was no error in his Honour’s failure to make that enquiry at the end of the day on 5 June.

226 It follows that ground 9 should be rejected.

Application for leave to appeal against sentence

227 The appellant also sought leave to appeal against sentence.

228 The trial judge stated, at [27]-[30] of his remarks on sentence, that a good deal of planning went into the commission of the offences, including early preparations for a ransom note, the drafting and typing of the ransom note, the ascertainment of times when Mrs Whelan was more likely to be alone at her house and the invention of a reason compelling enough to persuade Mrs Whelan to meet him at Parramatta on 6 May. His Honour also remarked upon the steps the appellant took to try to avoid detention, including the false account he had given of his movements to his father; the disposal of the daisy wheel and typewriter tape used to type the ransom note; and the use of a public telephone on 16 April, when he realised he could not access the Whelans’ property unannounced, rather than his mobile phone, which he was carrying. His Honour further commented upon the appellant’s persistence when things did not go as planned. In this regard, his Honour found that the appellant’s intention in going to the Whelans’ property on 16 April was to abduct Mrs Whelan on that day and leave the ransom note at the house.

229 His Honour stated, at [32], in relation to the position of a life sentence, that:

“The law requires that if it is satisfied that the level of culpability in the commission of the offence of murder is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only through the imposition of a sentence of imprisonment for life, the Court is to impose that sentence. In my opinion [the appellant’s] detailed planning, his persistence, the precautions he took to avoid detection, his motive, namely the cold desire to extort a large sum of money, and the intent he harboured between 16 April at the latest and 6 May to kill Mrs Whelan, comprehend a level of culpability that is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence.”

230 His Honour also considered that a sentence that strongly deterred others from committing offences such as kidnapping was also appropriate.

231 So far as the appellant’s personal circumstances were concerned, his Honour noted his age, being 53 years old at the date of sentence; that he had a modest criminal record, which his Honour ignored for the purposes of sentencing; and that although it had been suggested during a bail hearing that the appellant was not in good health, no such evidence was tendered on sentence, nor was there any other evidence relating to the appellant’s personal circumstances. His Honour considered in those circumstances that the proper approach was to assume the appellant would get appropriate medical or other assistance whilst he was in custody. His Honour also found there were no subjective features by reference to which any argument could be put for a mitigation in sentence. His Honour also noted that the appellant had shown no remorse.

232 The trial judge considered the act of detaining Mrs Whelan against her will for the purposes of creating a chance that the ransom demand might be met to be part of the appellant’s criminality in the offence of murder. In this regard, his Honour considered that the circumstances of the two offences were inextricably tied together, as was exemplified by the fact that the appellant’s reason for killing Mrs Whelan was to conceal his responsibility for her detention. His Honour, therefore, indicated his intention to impose concurrent sentences for the two offences.

233 His Honour also considered that the offence of detaining for advantage was a very serious one of its kind. His Honour again emphasised that the appellant had engaged in long, careful and persistent preparatory acts. His Honour found, at [45], that the appellant’s motive was “the cold desire to enrich himself”.

234 His Honour referred to the appellant’s specific intent relating to the crime of murder. It was the Crown case that because Mrs Whelan knew the appellant, once he had detained her he could never let her go, because he knew that if he did, he would be exposed. His Honour did not expressly make a finding as to whether he accepted that was appellant’s intent. However, it is apparent from his remarks on sentence generally that his Honour accepted that the jury had so found.

The law relating to the imposition of a life sentence

235 The Crimes (Sentencing Procedure) Act 1999, s 61(1) provides:

“ 61 Mandatory life sentences for certain offences

236 The burden of proving that a case falls within s 61(1) rests on the Crown. The standard of proof in such case is beyond reasonable doubt: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Merritt. In R v Twala (Court of Criminal Appeal, 4 November 1994, unreported), the Court stated:

case

237 Twala was cited with approval in R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409; 121 A Crim R 342 per Wood CJ at CL (Giles JA and James J agreeing) at [84]-[85] and again in Merritt.

238 In R v Arthurell (Supreme Court of New South Wales, 3 October 1997, unreported) Hunt CJ at CL referred, at 11, to the meaning of “heinousness” as “atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked”. His Honour held, therefore, that the test to be satisfied in determining whether to impose a life sentence, was “a substantial one”. These comments were approved in Merritt at [39] and Harris at [84]-[85].

239 In Merritt, the question arose whether a sentencing judge had to be satisfied, before imposing a life sentence, of the presence of each of the indicia referred to in s 61(1), that is, that the culpability was so extreme that the community interest in “retribution, punishment, community protection and deterrence” could only be met by the imposition of a life sentence. Wood CJ at CL considered, at [42], that there were several possible interpretations of the section and enumerated the following:

“(a) First, that a life sentence is required, if the culpability is so extreme that the community interest, in any one of the four indicia, is such that it could only be met by such a sentence;

(b) Second, that such a sentence is only required if the culpability is so extreme that the community interest, in each of the four indicia, is such that it could only be met by such a sentence; …

(c) Third, that such a sentence is required if the culpability is so extreme that the community interest, in the combined effect of such of the four indicia as are applicable, could only be met by such a sentence (a construction which would embrace a circumstance where any one or more of those factors may be of itself insufficient, or inapplicable); and

each contributing

240 His Honour noted that the drafting of the section was not clear and looked at the legislative history to obtain assistance in determining the correct construction of the section. His Honour held, at [50], that s 61(1) should be given a purposive construction. On that approach, his Honour considered that the third of the possible interpretations was the correct approach. He gained further support for that approach from the comments of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v R (No 2) [1988] HCA 14 at [13]; (1988) 164 CLR 465 at 476, where their Honours said:

“However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

241 His Honour also considered that this approach was supported by the acceptance in Harris and most likely, in R v Miles [2002] NSWCCA 276, that the test in s 61(1) broadly accorded with the common law approach. His Honour concluded:

“[52] In my assessment, the primary focus of the legislation is directed towards how extreme the offender's culpability is. Both Harris and Miles , and the various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime. In these circumstances, I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence, that can be passed, is one of imprisonment for life.

242 Whilst accepting the correctness of Wood CJ at CL’s conclusion, with which Tobias JA and Hidden J agreed, the appellant also placed emphasis upon the following comments of Tobias JA, with which Hidden J also agreed:

“[5] Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated (subject always to s 61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence.

[6] It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be attained. On the other hand, as [Wood CJ at CL) observes in [53] of his judgment, absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree.

only

243 The principles that apply in determining whether a life sentence should be imposed were summarised by McClellan CJ at CL in Knight v Regina [2006] NSWCCA 292; 164 A Crim R 126, at [23], as follows:

“Section 61(1) has been the subject of consideration in a number of decisions. It is not necessary to analyse them for present purposes beyond a statement of the following principles:

the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452.

it is not possible to prescribe a list of cases falling within the worst category – ingenuity can always conjure up a case of greater heinousness: [ Veen (No 2) at 478; R v Petroff (Court of Criminal Appeal, 12 November 1991, unreported)].

a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; [ R v Kalajzich (1997) 94 A Crim R 41 at (50-51); R v Baker (Court of Criminal Appeal, 20 September 1995, unreported); R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported)].

in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50.

it is the combined effect of the four indicia in s 61(1) which is critical: [ Merritt ].

Merritt

244 In Knight, Adams J, who substantially agreed with McClellan CJ at CL, emphasised, at [55], in respect of s 61(1) that:

only

without the possibility of being considered for release on parole

245 However, it is not necessary in order for a sentence of imprisonment for life to be imposed for the Court to be satisfied that the crime is of the most serious or most heinous category. Rather, as the High Court said in Veen (No 2), at [15] 478:

“… the maximum penalty … is intended for cases falling within the worst category of cases for which that penalty is prescribed … That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness.” (Citations omitted)

246 The Crimes (Sentencing Procedure) Act, s 21(1) provides that if an offender is made liable to imprisonment for life, a court may nonetheless impose a sentence of imprisonment for a specified term. In Merritt, Wood CJ at CL noted the tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) and s 21(1). His Honour noted that the tension had been recognised in the authorities: see R v Petrinovic [1999] NSWSC 1131 and Harris, where that tension had been resolved in favour of recognising the continued existence of the discretion provided for by s 21(1), notwithstanding the fact that the s 61(1) criteria had been met in circumstances where the offender’s subjective circumstances justified a lesser sentence that one of life imprisonment.

247 The Crown submitted that there was nothing of significance in the appellant’s subjective circumstances in this case, such as youth or mental illness. The appellant had not pleaded guilty so as to obtain the benefit of such a plea, nor had he expressed remorse or regret for his criminal behaviour. The appellant was aged 53 years at the time of sentencing and the Crown submitted that even if he would reach an age at which he no longer posed a threat to the community, it was open to his Honour to impose the maximum penalty in the circumstances of this case. This question was addressed by Hunt CJ in CL in Kalajzich at 50-51, where his Honour stated:

“The maximum penalty for murder of penal servitude for life, meaning for the term of the prisoner's natural life, is … reserved for cases falling within the worst category of cases, but it is not reserved only for those cases where the prisoner is likely to remain a continuing danger to society for the rest of his life or for those cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment.”

248 The Crown also submitted that there was no evidence of favourable prospects of rehabilitation, but even if there were, this would not mean that a sentence of life imprisonment should not be imposed: see Garforth and Baker.

249 The appellant submitted that premeditated, planned killings that are financially motivated do not fall within any recognised category of case where the maximum penalty was the only sentence able to meet the interests set out in s 61(1). He pointed to a number of cases where a life sentence had not been imposed, notwithstanding a finding that the murder had been premeditated and financially motivated (see Regina v Willard [2005] NSWSC 402; R v Mrish (Supreme Court of New South Wales, 13 December 1996, unreported); R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported)).

250 It was submitted that premeditation, planning and financial motivation did not point to a level of culpability that was so extreme the community interest could only be met through the imposition of a sentence of imprisonment for life. It was submitted that those features were not “of very great heinousness”, even if the detention of Mrs Whelan was taken into account. In that regard, it was submitted there was no evidence to support a contention that Mrs Whelan was exposed to any period of fear and that his Honour did not make such a finding.

251 The appellant accepted that the effect of the sentence imposed was to make his crime comparable to a contract killing. In respect of that type of case, Grove J in R v Crofts (Supreme Court of New South Wales, 6 December 1996, unreported) had commented that:

“A deliberate killing for payment would prima facie find its place in the worst category of case with a potential for the imposition of the maximum penalty of penal servitude for life.”

252 Hunt CJ at CL endorsed this comment in Kalajzich, at 52, stating:

Crofts

253 The Crown and the appellant advanced directly opposing cases as to whether this case ought to be likened to a contract killing. The Crown submitted that the fact the murder was motivated by a desire for financial gain was a factor relevant to whether the crime fell within the worst case category. It was submitted that it was in that regard that the murder committed by the appellant was akin to a contract killing.

254 The appellant submitted that this case was to be distinguished from a contract killing case, in that it was the appellant’s own financial ruin and desperation which motivated the killing. It was submitted that it was an ameliorating factor that as the person with the motive to kill, the appellant did not exploit others to bring about Mrs Whelan’s death: see by contrast, Willard and Kalajzich.

255 The appellant acknowledged that an offender did not need to be found to be a continuing danger for the rest of his life, or to have no chance of rehabilitation, before a sentence of life imprisonment could be imposed. However, it was submitted that those factors were matters that would justify the imposition of a life sentence. In this case, the absence of either factor was to be given weight. Insofar as the appellant being a danger to society, it was submitted there was nothing of significance in his criminal antecedents.

256 Finally, the appellant sought to draw a distinction between this case and a case such as R v Ngo [2001] NSWSC 1021; (2001) 125 A Crim R 495. In that case, the trial judge was satisfied that Ngo’s motive for killing the Member of Parliament, John Newman, was “naked political ambition and impatience”, the deceased having stood in the way of Mr Ngo’s wish to be the Legislative Assembly Member for Cabramatta. That offence involved careful planning, including the recruitment of others. Notwithstanding that a life sentence was imposed, the trial judge in that case indicated that he did not consider that Mr Ngo needed to be kept in custody for the whole of that time and said he would have fixed a non-parole period had he the power to do so (Ngo involved a different sentencing regime to the present). It was submitted that it was significant in Ngo that there were two features of the offence that made the maximum sentence of imprisonment for life applicable, namely, the actual killing itself, as well as the attack on the constitutional system of parliamentary democracy. In this regard, the killing of a Member of Parliament for political purposes was viewed as striking at the very fabric of our public institutions. It was submitted that there was no comparable consideration in this case.

257 However, the comparison with Ngo is not of any particular assistance. Indeed, it invokes no more than the comments of the High Court in Veen (No 2) to which we have already referred above at [245].

258 In this Court’s opinion, there was no error in the trial judge’s sentencing approach. This was clearly a premeditated, planned murder for financial gain. It is not necessary to reiterate the matters the trial judge took into account. No error of principle has been demonstrated. Nor is this a case where the sentence imposed was so unreasonable that there must have been some underlying error in the sense described in House v R [1936] HCA 40; (1936) 55 CLR 499. Leave to appeal should be granted, but the appeal dismissed.

**********

13/07/2009 - typographical error - Paragraph(s) [98] and [103]

Citations

Burrell v The Queen [2009] NSWCCA 163

Most Recent Citation

Cases Citing This Decision

17

Vojneski v The Queen [2016] ACTCA 57

R v Singh [2019] SASCFC 51

R v Tartaglia [2011] SASCFC 88

Cases Cited

44

Statutory Material Cited

4

Burrell v R [2007] NSWCCA 65

R v Burrell [2007] NSWCCA 79

Burrell v The Queen [2008] HCA 34

Actions

Download as PDF Download as Word Document

Reported Decision:	196 A Crim R 199
Appeal Outcome:	Special leave refused by the High Court (s14/2010) 28 May 2010

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
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, s 61(1) Criminal Appeal Act 1912, s 6(1) Evidence Act 1995, s 38, s 135, s 137, s 192 High Court Rules 2004 (Cth), reg 3.01
CATEGORY:	Principal judgment
CASES CITED:	Black v R [1993] HCA 71; (1993) 179 CLR 44 Burrell v R [2007] NSWCCA 65 Burrell v The Queen [2008] HCA 34 Chamberlain v The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521 Davidson v R [2009] NSWCCA 150 Edwards v The Queen (1993) 178 CLR 193 Grierson v R [1938] HCA 45; (1938) 60 CLR 431 Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 House v R [1936] HCA 40; (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Knight v Regina [2006] NSWCCA 292; 164 A Crim R 126 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v R [2002] HCA 53; (2002) 213 CLR 606 Minniti v R [2006] NSWCCA 30; 159 A Crim R 394; 196 FLR 431 Plomp v R [1963] HCA 44; (1963) 110 CLR 234 R v Arthurell (Supreme Court of New South Wales, 3 October 1997, unreported) R v Baker (Court of Criminal Appeal, 20 September 1995, unreported) R v Bell (1985) 2 NSWLR 466 R v Valera [2002] NSWCCA 50 R v Burrell [2007] NSWCCA 79 R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported) R v Crofts (Supreme Court of New South Wales, 6 December 1996, unreported) R v Fowler [2000] NSWCCA 142 R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported) R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409; 121 A Crim R 342 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Kalajzich (1997) 94 A Crim R 41 R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 R v Kingswell (Court of Criminal Appeal, 2 September 1998, unreported) R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 R v Markulevski [2001] NSWCCA 290; (2001) 52 NSWLR 82; (2001) 125 A Crim R 186 R v Merritt [1999] NSWCCA 29 R v Merritt [1999] NSWCCA 29 R v Milat (Supreme Court of New South Wales, 23 April 1996, unreported) R v Miles [2002] NSWCCA 276 R v Mrish (Supreme Court of New South Wales, 13 December 1996, unreported) R v Ngo [2001] NSWSC 1021; (2001) 125 A Crim R 495 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 R v Petrinovic [1999] NSWSC 1131 R v Petroff (Court of Criminal Appeal, 12 November 1991, unreported) R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported) R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) R v Zaiter [2004] NSWCCA 35 Ramstead v The Queen [1999] 2 AC 92 Regina v Dellapatrona (1993) 31 NSWLR 123 Regina v Kilbourne (1973) AC 729 Regina v Sandford (1994) 72 A Crim R 160 Regina v Small (1994) 33 NSWLR 575 Regina v Willard [2005] NSWSC 402 Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Velevski v R [2002] HCA 4; (2002) 187 ALR 233 Yuill v R (1994) 34 NSWLR 179; (1994) 77 A Crim R 314
PARTIES:	Bruce BURRELL (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/2061
COUNSEL:	I Barker QC; D Dalton SC (Appellant) M Sexton SC; T Smith (Respondent)
SOLICITORS:	Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2002/101
LOWER COURT JUDICIAL OFFICER:	Barr J
LOWER COURT DATE OF DECISION:	9 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Bruce Allan Burrell [2006] NSWSC 581