R v Burrell

[2007] NSWCCA 79

Appeal Outcome: Special leave granted on limited grounds by the High Court - 7 March 2008Appeal allowed [2008] HCA 34

New South Wales

Court of Criminal Appeal

CITATION:	R v BURRELL [2007] NSWCCA 79
HEARING DATE(S):	21 March 2007
JUDGMENT DATE:	23 March 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Sully J at 60; James J at 61
DECISION:	The order of the Court dismissing the appeal is confirmed
CATCHWORDS:	CRIMINAL LAW - application to reopen criminal appeal - consideration of irrelevant evidence by Court of Criminal Appeal - misunderstanding of facts not in evidence - whether application should be heard by a reconstituted bench to avoid any apprehension of bias - whether jurisdiction exists to reopen a matter after judgment has been delivered - power of courts to review perfected orders - functions of judges - implied power of courts to do justice to parties
LEGISLATION CITED:	Court of Criminal Appeal Act (NSW) 1912 Judiciary Act 1903
CASES CITED:	AN (No 2) v The Queen (2006) 163 A Crim R 133 NSWCCA 218 Antoun v The Queen (2006) 80 ALJR 497 DJL v Central Authority (2000) 201 CLR 226 Grierson v The King (1938) 60 CLR 431 Johnson v Johnson (2000) 201 CLR 488 Jones v The Queen (1989) 166 CLR 409; 39 A Crim R 400 McAdam (No 2) [2001] SASC 206 NSW Bar Association v Smith, unreported, 4 July 1991 Pantorno v The Queen (1989) 166 CLR 466; 38 A Crim R 258. Pettigrew v R (1996) 89 A Crim R 1 Postiglione v The Queen (1997) 189 CLR 295 R v Allen [1994] 1 Qd R 526 R v Giri (No 2) [2001] NSWCCA 234 R v Gust [2000] NSWCCA 287 R v Kearns [2003] NSWCCA 367 R v Lapa (No 2) (1995) 80 A Crim R 398 R v McNamara (No 2) [1997] 1 VR 257; (1996) 86 A Crim R 339 R v Reardon (2004) 146 A Crim R 475 R v Reid (2004) 148 A Crim R 425 (at 431) [26]) R v Saxon (1998) 101 A Crim R 71 Re JRL; ex part CJL (1986) 161 CLR 342 Roy Carrion v R (2002) 128 A Crim R 29 Smith v NSW Bar Association (1992) 176 CLR 256) State of Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 Yuill v Spedley Securities Ltd (in liquidation) & Ors NSWCCA, unreported, 8 May 1992)
PARTIES:	The Crown (Appl) Bruce Allan Burrell (Resp)
FILE NUMBER(S):	CCA 2006/2061
COUNSEL:	D C Frearson SC/T Smith (Crown/appl) D Dalton SC (Resp)
SOLICITORS:	Director of Public Prosecutions (Crown/appl) Legal Aid Commission of NSW (Resp)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2006/2061
LOWER COURT DATE OF DECISION:	16 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	NSWCCA 65

2006/2061

McCLELLAN CJ at CL
SULLY J
JAMES J

FRIDAY 23 MARCH 2007

R v BURRELL, Bruce Allan

Judgment

1 McCLELLAN CJ at CL: The Court delivered its judgment dismissing the appeal in this matter on 16 March 2007. That order was entered by the Registrar of the Court of Criminal Appeal, without a request from the parties, on the same day.

2 The Crown has now made an application to the Court that it should, in the interests of justice, reopen the appeal. In circumstances which I shall explain it is accepted by the parties that the understanding which the Court had of evidence at the trial was in some respects not correct. The parties have generally agreed the matters which were not in evidence. I have detailed them below.

3 The respondent to this application, Mr Burrell, (I shall refer to him as the respondent in these reasons) submitted that this Court does not have jurisdiction to entertain the Crown’s application. He also submitted that in order to avoid any apprehension of bias the Crown’s application should be heard by a Court of Criminal Appeal differently constituted. There is no allegation of actual bias. Against the eventuality that the Court as presently constituted determines that the Court of Criminal Appeal has jurisdiction in the matter the respondent submitted that it should be resolved by a differently constituted court.

Apprehended bias

4 The respondent submitted that, in the circumstances where this Court had determined the appeal, although it had a misunderstanding of some of the facts in the Crown case, if it was to entertain an application to reopen and redetermine the matter there would be a reasonable apprehension in the ordinary fair minded person that the Court may be biased. The submission was put that any decision which the Court, as presently constituted, might make in relation to the relevant evidentiary material “may be tainted by the Court’s prior consideration of the irrelevant and highly prejudicial material.”

5 The relevant principles by which a submission of apprehended bias is to be considered are well known. In Johnson v Johnson (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at (492) [11]:

“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide eg Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.”

6 In Re JRL; ex part CJL (1986) 161 CLR 342 Mason J said (at 352):

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at pp 553-554; Watson (1976) 136 CLR 248 at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p 14. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

7 It is important when considering a submission of apprehended bias in a judicial officer to bear in mind the assumptions which must inform that consideration. Objectivity, independence and firmness of mind are essential characteristics of a judge. A judge will be assumed to have a capacity to put from his or her mind evidence of a prejudicial kind which has been heard or seen but is not relevant to the determination of the question before the Court. In the State of Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 Gibbs CJ rejected the suggestion that a judge could be influenced by the media. In the course of his reasons the Chief Justice said (at 58):

“It is the everyday task of a judge to put out of his mind evidence of the most prejudicial kind that he has heard and rejected as inadmissible.”

8 In the same case Stephen J said (at 76):

“Judges are necessarily engaged daily in hearing and later banishing from their minds evidence which is of a prejudicial nature and which proves to be inadmissible. They should both by experience and training, be better able to do so than most people.”

9 In Johnson at [12]-[13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:

“At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial" (Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584-585, per Toohey J)
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge (Webb v The Queen (1994) 181 CLR 41 at 73, per Deane J), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time……”

10 Callinan J said (at 517-518 [80]):

“As to the latter however it is important to keep in mind that the notional, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct.”

11 In many of the cases to which I later refer, where an application to reopen an appeal has been made it has been determined by the Court as constituted when the original appeal was heard. I am not aware that it has ever been suggested that the Court as so constituted cannot entertain the application. There are many occasions upon which a judge, either at trial or on an appeal, may be asked to reconsider a ruling which he or she has made, a factual determination or a decision upon a matter of law. Matters are routinely returned from an appellate court to the trial judge to be determined according to law. The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge. Such a person, properly informed, would not in my opinion reasonably apprehend that the judge or judges would bring other than an impartial mind to the determination of the matter: (R v Reid (2004) 148 A Crim R 425 (at 431) [26]); R v Kearns [2003] NSWCCA 367).

12 The position may be different where a judge has expressed a view about the credit of a witness (see Yuill v Spedley Securities Ltd (in liquidation) & Ors NSWCCA, unreported, 8 May 1992) (see also Smith v NSW Bar Association (1992) 176 CLR 256). In Antoun v The Queen (2006) 80 ALJR 497 the High Court found that a trial judge should have disqualified himself from hearing the matter when, before submissions were made, the judge stated emphatically that he would not accept them. It was determined that the judge had presented an unmistakable appearance of prejudgment and had failed to display appropriate standards of fairness and detachment.

13 Cases of that type are quite different to the present matter. This Court is required to consider whether it has jurisdiction to consider the Crown’s application and, if so, to consider the evidence at trial and determine, inter alia, whether it was open to the jury to be satisfied of the charges beyond reasonable doubt. The answer to that question may vary depending upon the evidence which was admitted at the trial. When, as has happened, the Court is made aware that it has determined the matter upon a misunderstanding of the relevant facts no reasonable person properly informed would assume that, being made aware of the correct facts, a judge would do other than impartially determine the matter having regard to those facts.

Jurisdiction

14 A review of the relevant authorities indicates that the extent of the jurisdiction of a court of appeal to reopen a matter which has been heard and orders made has received consideration on a number of occasions. Although there is a fundamental public interest in the finality of litigation the courts have also been concerned to ensure that parties receive a fair hearing and a determination of the matter upon its merits. Particular difficulties arise when the orders have been perfected.

15 In Grierson v The King (1938) 60 CLR 431 the High Court confirmed that the jurisdiction of the Court of Criminal Appeal is provided by the Court of Criminal Appeal Act (NSW) 1912. Confined to the provisions of that Act Dixon J, with whom McTiernan J, agreed said (at 436) that this Court “has no authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up.”

16 As Hodgson JA identified in R v Reardon (2004) 146 A Crim R 475 Grierson was considered in Jones v The Queen (1989) 166 CLR 409; 39 A Crim R 400. The problem in that case was that the appeal court had not considered all of the appellant’s arguments. The argument in the High Court on an application for special leave to appeal proceeded on the footing that, because the order of the Court of Criminal Appeal had been perfected, it was not possible to move the Court of Criminal Appeal to determine grounds of appeal which had been left undetermined. Mason CJ and Brennan, Dawson and Toohey JJ left open the question of whether or not the assumption was correct. However, and in my opinion, of significance, was their expression of regret that the Court of Criminal Appeal had not been approached before the order was perfected.

17 The question was again considered in Pantorno v The Queen (1989) 166 CLR 466; 38 A Crim R 258. In that case special leave to appeal to the High Court was sought on a ground which had not been argued in the Court below. Mason CJ and Brennan J, after emphasising that failure to argue a point before a Court of Criminal Appeal presents a considerable obstacle to an applicant seeking special leave, recognised (at p 474:264) that a court of criminal appeal “may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal.” Their Honours later said:

“However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave is this case.”

18 Their Honours found that a failure to consider the additional grounds had the consequence that the appellant had been denied natural justice.

19 In that case Deane, Toohey and Gaudron JJ said (at 484:271):

“There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court.”

20 The issue was again referred to by the High Court in Postiglione v The Queen (1997) 189 CLR 295 where Dawson and Gaudron JJ said (at 300):

“If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione’s first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King . It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to reopen an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected. Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected.” (emphasis added)

21 Gummow J (at p 327) expressly agreed with the relevant passage in the judgment of Dawson and Gaudron JJ. However, McHugh J considered the matter was foreclosed by Grierson.

22 The consequence is that an application which is in effect a second appeal must be rejected. But where there has been a denial of procedural fairness, whether or not the Court’s order has been perfected, there has been no hearing on the merits and the matter has not been finally determined. For this reason, mindful of the fact that it will only be appropriate to do so in exceptional cases, a court may reopen the appeal.

23 In Pettigrew v R (1996) 89 A Crim R 1 the Court of Appeal in Queensland held that where the Court had proceeded to determine an appeal on an erroneous basis it could entertain an application to reconsider the matter. The order which was sought to be set aside had been entered. After giving consideration to the relevant provisions of the Act constituting the Court it was determined that the Court had power to entertain the application. In the course of his reasons Fitzgerald P noted that there was only a limited opportunity for further appeal (p 5 and footnote 8). Grierson was decided at a time when there was an appeal as of right to the High Court. That situation has long since changed and with the introduction of the requirement to obtain special leave to appeal (s 35(2) Judiciary Act 1903) in the overwhelming majority of cases the decision of the intermediate appellate court will be the final determination of the matter.

24 The issue has been considered by this Court on a number of occasions. In R v Lapa (No 2) (1995) 80 A Crim R 398 the appellant complained that the Court of Criminal Appeal had not determined one of the grounds of appeal. In that case the application was made before the order had been entered. However, entry of the order occurred after the application to reopen was made and before judgment on that application was given. The Court of Criminal Appeal was satisfied that it could review its judgment at any time until its order had been perfected. It further held that the power of the Court was not lost by the administrative act which perfected the order after the application to reopen had been made.

25 In his reasons for judgment Clarke JA emphasised that the approach to a question of reopening a criminal appeal raises different considerations to the circumstances where it is sought to reopen civil proceedings. Criminal proceedings affect only the rights of the accused and the Crown. They do not affect the rights of third parties. Although his Honour accepted that the principle of finality is of “first importance” he questioned:

“whether it should operate so as to close off automatically any reconsideration of a judgment after it has been perfected, at least where questions of status and the rights of third parties are not concerned. To take the instant case as an example – why should the rights of the parties be so dramatically affected by the administrative actions of a court officer?”

Where an application for consideration of a judgment is made before the judgment is perfected a court accords great weight to the principle of finality and, primarily for this reason, it is only in rare cases that it does accede to the application. A similar approach in cases where a judgment has been perfected would, in my opinion, more readily meet broad considerations of justice than the present rule does” (at 403).

26 In R v McNamara (No 2) [1997] 1 VR 257; (1996) 86 A Crim R 339 the appellant complained that one of his grounds of appeal had not been fully heard and disposed of on the merits. The Court of Appeal rejected his application to reopen the appeal and held that it was bound by Grierson.

27 In R v Saxon (1998) 101 A Crim R 71 an appeal against conviction had been dismissed and the order of the Court perfected. The appellant sought to bring a further appeal based upon fresh evidence. The Court held that Grierson precluded the making of any application to bring a fresh appeal, except in circumstances where an earlier appeal may have been abandoned.

28 However, Sperling J who joined in the decision of the Court said (at 82):

“Where there has been a denial of procedural fairness, the matter has not been heard and determined according to law and entry of the prior order does not therefore perfect a determination; Pantorno and McNamara .”

29 In R v Gust [2000] NSWCCA 287 this Court held that a court did have power to grant an application to reopen the hearing of an appeal if an applicant could show that he had been denied procedural fairness even when judgment had been perfected.

30 In DJL v Central Authority (2000) 201 CLR 226 Callinan J acknowledged that a court has an inherent power to reopen defective orders, inter alia, in the event of a failure to give a party a hearing notwithstanding that an order may have been perfected [189]

31 In R v Giri (No 2) [2001] NSWCCA 234 the appellant argued that he had been denied natural justice by the Court of Criminal Appeal. He applied to have the appeal reopened and further submissions considered. Although the Court rejected the application Heydon JA said (at [17]):

“It is clear that an appellate court may reopen a case which has already been decided if it was decided on a point on which the losing party has, without personal fault, not been heard; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302, 308, 312, 317 and 322. It is also the case that an appellate court may reopen a case which has already been decided on other grounds: Autodesk at 302 and 322.”

32 However his Honour emphasised that (at [17]):

“according to Mason ACJ Wilson and Brennan JJ in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684, in practice the circumstances;
‘are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution.’

33 In R v Reardon, Hodgson JA reviewed these authorities and expressed the view that “what was said in Jones, Pantorno and Postiglione is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to reopen the appeal.” (at 487 [41])

34 However, his Honour acknowledged, at 487[41] that “this is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud.” His Honour also accepted that the “principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined.”

35 In Roy Carrion v R (2002) 128 A Crim R 29 Wood CJ at CL when considering the problem in the context of a “slip”, carried out a comprehensive review of the authorities. This included the decision of the Queensland Court of Appeal in R v Allen [1994] 1 Qd R 526. In that case the Court held that it had inherent jurisdiction to vary an order which it had originally made so as to allow an appellant to argue a further ground of appeal. This was done, although the order on appeal had been perfected. Wood CJ at CL recognised that the Court’s jurisdiction which he described as “inherent” lay in the fact that “‘the interests of justice’ required the Court’s intervention” (at p 32[18]).

36 In AN (No 2) v The Queen (2006) 163 A Crim R 133 NSWCCA 218 this Court again considered whether under the slip rule, or by virtue of some inherent or implied power, this Court has jurisdiction so that it is able to correct orders which have been entered to reflect its true intention. James J, with whom the other members of the Court agreed, concluded that this Court may correct an error in an order it has made “arising from a slip or accidental omission even after the order has been perfected.” (p 140 [42])

37 Before leaving a review of the authorities I should record the fact that in civil proceedings intermediate courts of appeal have granted applications to reopen the appeal. In NSW Bar Association v Smith, unreported, 4 July 1991 the NSW Court of Appeal was satisfied that it had made an error in determining the original appeal, reopened the matter, and proceeded to determine it on the correct facts. The order had not been taken out.

38 In McAdam (No 2) [2001] SASC 206 the South Australian Full Court permitted an appellant to reopen the matter after the order in the previous appeal had been sealed.

39 Consideration of these decisions persuades me that this Court has jurisdiction to consider the Crown application. That jurisdiction does not come from the application of a “slip rule” but from the implied power of this Court to do justice to the parties. In order to do justice an appeal must be “heard and finally determined on its merits.”

40 It is not entirely irrelevant that the orders of the Court were entered on the same day and shortly after judgment was delivered. This act of the Registrar, no doubt carried out with an eye to efficiency, had the consequence that the parties were denied the opportunity to consider the lengthy and detailed reasons for judgment and move the Court before judgment was entered. For my part I would, if so minded, be reluctant to embrace a rule which would preclude the making of the present application in circumstances where the parties had no opportunity to consider the reasons for judgment before a clerical act, which they neither initiated nor in respect of which they had any control was undertaken. I am not unmindful of the fact that if this Court does not entertain the application its judgment will stand with all parties, including the Court, now being aware that the factual basis for the judgment was not correct. Although this would no doubt feature in a submission seeking special leave to appeal to the High Court, these circumstances would, if uncorrected, have a tendency to undermine confidence in the courts. Furthermore, I can identify no prejudice to the respondent from the application. If the appeal is reopened and upheld the respondent will succeed. If the appeal is reopened, but rejected, the respondent will suffer no impediment to any application for special leave to appeal which he may make. In the event that such an application is made both the parties and the High Court will have available a correct understanding of the factual matrix upon which the appeal would be determined, with the benefit of this Court’s view about the appeal having regard to the correct facts.

41 In this case the appeal has been determined and reasons published upon a false understanding as to some matters. The appeal has not been determined in relation to the relevant evidence. For that reason it has not been finally determined. If the matter is to be determined on its merits, that evidence, and that evidence only, must be considered. The circumstances of this case are exceptional. Public confidence in the criminal justice system depends upon courts making decisions which so far as possible are based upon the relevant facts to which the correct legal principles have been applied. In my opinion this Court should intervene, recognise the errors and determine the matter having regard to a correct understanding of the facts and provide reasons accordingly.

The circumstances of this case

42 The appeal to this Court arises from a trial conducted before Barr J and a jury. In an earlier trial on these charges the jury failed to agree. There had also been a series of pre-trial applications in relation to various matters including evidentiary questions considered by Sully J and Wood CJ at CL. None of the earlier history of the matter was of relevance to the determination of this appeal. However, it was agreed at the trial before Barr J that earlier rulings would not be reargued, the same ruling being made for the reasons which had been earlier given.

43 The submissions and accompanying documents delivered to this Court were voluminous. In part this was inevitable given the length and complexity of the trial. In a folder which was provided to the Court by the respondent lengthy written submissions were included. Immediately following those submissions was a document entitled “Crown case statement – facts alleged in the Crown case.” Although dated at a time which might have alerted the Court that it was no longer relevant, the Court was not informed that this was the case. The document provided a lucid and succinct account of apparently relevant matters. It had been prepared by the Crown but was provided to the Court by the respondent. Given the very significant bulk of written material, including transcript and a multitude of submissions and judgments which were provided to the Court without, in some cases, any guidance as to their relevance or utility, the document appeared to be a useful summary of the Crown case at the trial. The lesson to be learned is that counsel should ensure that the material which is filed is relevant to the grounds of appeal to be argued and may be relied upon by the Court. If not relevant it should not be filed. If it happens that the document was relevant when filed, but cannot be relied upon, this must be made plain to the Court.

Factual errors

44 The parties were asked to agree as to the factual matters recorded in my judgment which were not in evidence. An analysis of the submissions identified the following matters:

1. The material at [16] referring to the allegations of investments in Tasmania and prospective improvements at Hillydale was not led at the trial. Accordingly the whole of paragraph [16] is inaccurate. This matter is again referred to in [306]. I shall refer to this paragraph later.

2. My account of the evidence of Sean Buckley in [12] and [15] was erroneous in so far as the Crown did not allege that the appellant had sought to involve Mr Buckley in a fraud.

3. In [20] I recorded an allegation that James Whelan overheard a conversation with the appellant. That allegation was not tendered at the trial. The material in the sentences, “The appellant was overheard by James Whelan to say that he had called by because he ‘just went to the pistol club at Lithgow.’ This statement was false as the appellant had not been to the pistol club and was not on his way to it”, did not form part of the evidence.

4. In [22] I recorded an alleged conversation between Ms Minton-Taylor and Mrs Whelan in which the latter was alleged to have said “that bastard, why did he do this to me.” That evidence was not led at the trial and the matter in [22] should be excluded from consideration. The matter is again referred to in [151]. It must be excluded from consideration in the appeal.

5. In [38] I say “it was the Crown case that the indistinct passenger could be seen on the front seat.” This was not submitted by the Crown and should be excluded from consideration.

6. In [109] I refer to the police finding an empty chloroform bottle at the appellant’s home. This evidence was not led at the trial. The first “dot point” in the paragraph should be excluded from consideration. I also refer to that matter in [154]. There is further reference to chloroform in [111]-[112]. The Crown did not put its case on this basis and accordingly these references are not correct. The sentence “It was the Crown case that Mrs Whelan was not subdued by violence but rather the appellant used a stupefying substance, namely the chloroform of which the residue was found in a bottle at his home” and the sentence “Use of chloroform would minimise the opportunity for Mrs Whelan’s DNA to be deposited on the motor vehicle” are not correct.

7. In [109] I refer to extracts from the UBD Directory. Although one page was tendered at the trial, the pages which showed the route to Smithfield were excluded. To this extent [109] is not correct.

45 Apart from these matters the respondent submitted that there were further inaccuracies in the reasons for judgment. In relation to para [20] it was submitted that although “relevant staff gave evidence that no one had rung that morning not necessarily all relevant staff gave evidence on this topic.” My understanding is that [20] reflects the Crown position at the trial and accordingly does not need reconsideration.

46 In relation to [27] and [28] the respondent submitted that the Crown argued at the trial that Mrs Whelan “exited the car park ramp and got into the appellant’s vehicle and the Crown could not exclude that she went left after exiting the car park. She may not have considered which direction she was going to walk in on Phillip Street when walking up the ramp or having walked up the ramp met and then walked with or was called over by the person described by Mr Elliott.” The Crown submitted that [27] and [28] correctly reflect the Crown’s position at the trial. At the request of the parties the Court was asked to view the relevant video footage. I am satisfied that [27] and [28] accurately reflect the Crown case at trial. In so far as I express my own conclusions in [28] they were arrived at after viewing the video.

47 In relation to [35] the respondent submitted that video footage could not conclusively confirm that the windscreen was dirty in the absence of comparative images. My reference in [35] to examination of the video footage was made in consideration of my own observations of the video.

48 In relation to [36] the Crown accepts that it did not assert that the images from cameras 7 and 8 positively excluded the possibility of Mrs Whelan having crossed the road and walked west on the southern footpath. However, it did submit that the video footage provided strong support for the proposition that it was unlikely that she did cross the road and walk west on the southern footpath. To that extent the penultimate sentence in [36] requires reconsideration.

Resolution of the appeal

49 The question which arises is whether, with a correct understanding of the matters in the Crown case, the appeal should be upheld. For reasons to which I refer below these matters are not relevant to grounds 3-7 inclusive. It was not submitted that they are relevant to grounds 8 and 9.

50 In relation to grounds 1 and 2 the correction of the Court’s understanding of the Crown case does not cause me to reach a different conclusion about those grounds. I refer in [151] of my original reasons to the fact that there was an unexplained comment by Mrs Whelan “why did he do this to me.” The deletion of that matter from the relevant facts in no way affects my conclusion that there was a body of evidence from which the jury could reasonably conclude that the appellant abducted and killed Mrs Whelan. My purpose in including a reference to this conversation was to illustrate the fact that there were matters beyond the three bodies of evidence central to the Crown case which the jury were obliged to consider. It is not material to my conclusion.

51 In [154] I included the reference to the “almost empty bottle of chloroform.” As with the alleged remarks made by Mrs Whelan, the deletion of that matter does not alter the reasoning in that part of the judgment. Both [151] and [154] were included to indicate that the Crown case involved complex circumstantial evidence. Their exclusion does not diminish that conclusion.

52 I did not expressly refer to other matters which, as it happens, were not in evidence when resolving grounds 1 and 2. Even if I had, the reasoning and conclusion with respect to those grounds would not alter.

53 In ground 10 the appellant submitted that the verdicts were “unsafe and unsatisfactory and cannot be supported having regard to the evidence.” In the course of my discussion of this ground I said that there were “some features of the evidence upon which the Crown relied at the trial which in my opinion had little probative value.” … but … “I am satisfied that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.”

54 I said in [306] that one of the elements in the Crown case which led me to this conclusion was that “the appellant was in serious financial difficulty and had lost the support of his former wife. He was unemployed with outgoings in excess of his income. He asked for and then demanded money from Mr Buckley.” I went on to say “notwithstanding his impecunious state he had raised the possibility of relocating to Tasmania with the prospect of making a significant capital investment in a winery.” The removal of this latter allegation from the matters before the jury does not, in my opinion, have any significance. The Crown proved that the appellant was in serious financial difficulty which provided a motivation for him to seek to extort money. To my mind that finding was clearly open, irrespective of the exclusion of the allegations in relation to prospective investment in Tasmania. To the extent that I relied in [306] on the appellant’s dealings with Mr Buckley the observation was accurate. It was the Crown case that the appellant had demanded money from Mr Buckley.

55 In [314] I discuss the evidence in relation to the UBD street directory. As I understand the position that discussion is an accurate reflection of the extent to which parts of the UBD directory were tendered in evidence. In any event as I indicated in [314] the marking in the street directory “was not of particular significance.”

56 As is apparent from my reasons for rejecting ground 10 none of the other matters which I erroneously understood to form part of the Crown case were of sufficient significance for me to refer to them in the discussion. I have carefully considered the factual matrix of the Crown case without that evidence. The withdrawal of those allegations does not lead me to a different conclusion from that which I previously expressed. As I said in [318] “the combination of circumstances including (the appellant’s) visit to the Whelan’s residence, the evidence relating to the Pajero, the dot point notes and the telephone call on 23 May are compelling”, I remain of that view. The conjunction of these circumstances cannot be reasonably explained otherwise than by the respondent’s guilt.

57 The respondent submitted that by reason of the reference to facts of which evidence was not admitted at the trial it could be determined that this Court had failed to properly discharge its obligations in relation to the consideration of grounds 1, 2 and 10 of the grounds of appeal. Whether or not that submission has substance is not a matter for this Court. However, it is appropriate for me to observe that the factual errors occur primarily in my endeavours to summarise the Crown case. As I have already stated when analysing the grounds of appeal the matters which are erroneously recorded as forming part of the Crown case played no material part in my considerations.

58 Since publishing its judgment the Court has been informed that the appellant had filed a notice indicating that it no longer pressed grounds 3 to 7 inclusive in the Notice of Appeal. We were not told of this in argument and the notice did not come to the Court’s attention before its judgment was published.

59 In my opinion the order of the Court dismissing the appeal should be confirmed.

60 SULLY J: I agree with McClellan CJ at CL.

61 JAMES J: I agree with McClellan CJ at CL.

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