Legal Research
Cases
R v Burrell

R v Burrell

Case [2007] NSWCCA 79 23 March 2007

No judgment structure available for this case.

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Burrell

Details

AGLC: R v Burrell [2007] NSWCCA 79
Case: [2007] NSWCCA 79
Decision Date: 23 March 2007

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against Alan Burrell, the High Court of Australia was called upon to determine the legality of an application to reopen a criminal appeal. The application was based on the contention that the Court of Criminal Appeal had considered irrelevant evidence and misconstrued the facts presented, which were not supported by the evidence. The appellant, Burrell, argued that the original judgment should be revisited and potentially overturned due to these perceived errors. The central legal issues before the court were whether such an application should be heard by a newly constituted bench to ensure impartiality and whether the court retains jurisdiction to reopen a matter once judgment has been delivered.

The court first examined the principles governing the reopening of criminal appeals, noting that while the jurisdiction to review perfected orders exists, it is to be exercised sparingly and only in exceptional circumstances. The court recognised the importance of maintaining public confidence in the administration of justice and the finality of judgments. It further considered the potential for bias in the original appeal process, given that the same judges who had considered the initial appeal might be asked to reconsider the matter. The court found that while the apprehension of bias was a serious concern, it did not necessarily warrant reopening the appeal. The court also deliberated on the functions of judges and the implied power of courts to do justice between the parties, balancing these considerations against the overarching need for finality in legal proceedings.

In conclusion, the High Court determined that the application to reopen the criminal appeal should not be entertained. The court held that while the issues raised were significant, they did not meet the exceptional threshold required to justify reopening a matter after final judgment had been delivered. The court emphasised the importance of the finality of judgments and the potential for prejudice if such applications were allowed without stringent criteria. The appeal was thus dismissed, and the original judgment of the Court of Criminal Appeal remained in place.

Orders