Legal Research
Cases
R v Burrell

R v Burrell

Case [2004] NSWCCA 185 11 June 2004

No judgment structure available for this case.

Type to search within this case.

CITATION: REGINA v BURRELL [2004] NSWCCA 185

HEARING DATE(S): 31/05/04

JUDGMENT DATE:
11 June 2004

JUDGMENT OF: Spigelman CJ at 1; Bell J at 42; Hislop J at 43

DECISION: Leave to appeal refused.

CATCHWORDS: CRIMINAL LAW - murder - kidnapping - leave to appeal from application for stay of prosecution - prejudice based on adverse publicity - abuse of process - breach of principle of fairness - fresh evidence

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED: Director of Public Prosecutions South Australia v B (1998) 194 CLR 566
Davis v Gall (1924) 35 CLR 275
Broome v Chenoweth (1946) 73 CLR 583
R v Swingler (1995) 80 A Crim R 471
Question of Law Reserved on Acquittal (3 of 1995) (1996) 88 A Crim R 1
Walton v Gardiner (1993) 177 CLR 378
Jago v District Court of NSW (1989) 168 CLR 23

PARTIES :

Regina
Bruce Burrell

FILE NUMBER(S): CCA 60004/04

COUNSEL: M Sexton SC / Ms L Wells / Dr J Quilter (Crown)
B Walker SC / D Dalton (Burrell)

SOLICITORS: Director of Public Prosecutions (NSW) (Crown)
Nina Thompson - Legal Aid Commission (Burrell)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70085/02

LOWER COURT
JUDICIAL OFFICER : Wood CJ at CL

060004/04

SPIGELMAN CJ
BELL J
HISLOP J
Friday, 11 June 2004

REGINA v Bruce BURRELL

Judgment

1 SPIGELMAN CJ: This is an Application for Leave to Appeal under S5F(3)(a) of the Criminal Appeal Act 1912 from an interlocutory judgment of Wood CJ at CL. His Honour rejected an application for a stay of the prosecution in relation to the kidnapping and murder of Mrs Whelan. The Applicant seeks a permanent stay or, in the alternative, a temporary stay on the basis of abuse of process. The temporary stay sought would be conditional in that proceedings could be reinstated “if sufficient additional evidence of guilt becomes available”. Mr B Walker SC, who appeared for the Applicant, placed particular reliance on the temporary stay alternative. Furthermore, the Applicant seeks a stay on the basis of actual prejudice based on adverse publicity. Wood CJ at CL refused a stay on both bases.

2 His Honour’s judgment of 19 December 2003 in the matter of Regina v Bruce Burrell, which encompassed issues from which there is no appeal, is the subject of an order by his Honour restricting publication. For that reason it has not been given a medium neutral citation reference. Nor has it been placed on the Supreme Court website.

3 The basic facts are not in issue. They are fully and accurately set out in the judgment of Wood CJ at CL. There has been no challenge to any of his Honour’s findings of fact. It is sufficient, for present purposes, to outline a summary of the basic facts:

Mrs Whelan left her home at Kurrajong on 6 May 1997 and after being seen walking out of the Park Royal Hotel carpark in Phillip Street, Parramatta, has not been seen since.

On 1…

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 [2004] NSWCCA 185
Case: [2004] NSWCCA 185
Decision Date: 11 June 2004

CaseChat Overview and Summary

In the case of R v Burrell, the applicant sought leave to appeal from the decision of the District Court of New South Wales, which denied the applicant's application for a stay of prosecution on the grounds of prejudice based on adverse publicity. The applicant was charged with the kidnapping and murder of a young woman. The primary legal issue before the court was whether the trial judge had correctly exercised his discretion in denying the application for a stay of prosecution due to the applicant's alleged prejudice from adverse publicity. The court was required to determine whether the trial judge's decision was an abuse of process, a breach of the principle of fairness, or whether fresh evidence was available that could potentially affect the outcome of the case.

The court considered the principles of fairness and the right to a fair trial, as enshrined in the common law and the Constitution. It was noted that a trial judge has broad discretion in deciding whether a stay of proceedings should be granted. The court held that the trial judge had exercised his discretion correctly, as there was no evidence of a real danger of substantial prejudice to the applicant's right to a fair trial due to adverse publicity. The court found that the trial judge had properly weighed the relevant factors and had not erred in his decision. Furthermore, the court found no evidence of an abuse of process or a breach of the principle of fairness in the trial judge's decision.

As a result, the court dismissed the application for leave to appeal. The applicant's argument that the adverse publicity had prejudiced the potential jury pool was rejected. The court held that the trial judge's decision was not an abuse of process or a breach of the principle of fairness, and no fresh evidence had been presented that could potentially affect the outcome of the case. The court emphasised the importance of maintaining public confidence in the criminal justice system and the need to protect the integrity of the trial process. The application for leave to appeal was dismissed, and the original decision of the District Court of New South Wales was upheld.

Orders