REGINA v Bruce Allan BURRELL
[2006] NSWCCA 74
•10/03/2006
CITATION: REGINA v Bruce Allan BURRELL [2006] NSWCCA 74 HEARING DATE(S): 10 March 2006 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 29; Johnson J at 30 EX TEMPORE JUDGMENT DATE: 03/10/2006 DECISION: Application for leave dismissed. CATCHWORDS: PRACTICE AND PROCEDURE– Application for leave to appeal against interlocutory decision rejecting an application for permanent stay or adjournment. - PRACTICE AND PROCEDURE – Whether pre-trial publicity about the failure of jury in previous trial to agree was of exceptional character that would undermine a fair trial. - PRACTICE AND PROCEDURE – Whether a direction to the jury panel will be sufficient to remove risk of prejudice from adverse publicity in the minds of prospective jurors. - PRACTICE AND PROCEDURE – Whether a direction to the jury not to conduct their own research will be sufficient to remove risk of prejudice from adverse publicity. LEGISLATION CITED: Criminal Appeal Act 1912: s5F
Jury Act 1977: s65(c)PARTIES: Bruce Allan Burrell (Applicant)
Regina (Respondent)
FILE NUMBER(S): CCA 535 of 2006 COUNSEL: D Dalton (Applicant)
D Arnott (Respondent)SOLICITORS: S O’Connor - Legal Aid Commission of NSW (Applicant)
NSW Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2002/0101 LOWER COURT JUDICIAL OFFICER: Barr J LOWER COURT DATE OF DECISION: 10/03/2006
2006/535
Friday 10 March 2006SPIGELMAN CJ
SIMPSON J
JOHNSON J
REGINA v Bruce Allan BURRELL
NON-PUBLICATION ORDER
(As to nature of submissions on application)
1 SPIGELMAN CJ: This is an application under s5F of the Criminal Appeal Act 1912, for leave to appeal from an interlocutory decision of Justice Barr. The Applicant is to stand trial in this Court on Monday next. This is the second trial, the first trial resulted in a jury being unable to agree on its verdict. That occurred in November last year.
2 During the course of that trial there was an amount of media attention given to the trial and, at the time of the discharge of the jury, there was some media reporting speculating on the nature of the jury’s deliberations, particularly as to how many members of the jury were in favour of a verdict of one character or another. There was also some speculation as to what that verdict may have been.
3 This is an appeal from a discretionary judgment on a matter of practice and procedure. The Court is reluctant to intervene with judgments of that character. It is necessary for a person seeking leave to appeal or, having had leave, as an Appellant, to convince the Court that an error of a character that is open to review from a discretionary judgment has been made. In my opinion, the Applicant has not demonstrated any error of that character in this case and leave to appeal should be refused.
4 That does not mean that the matters sought to be raised can never be raised again in an appeal from any final verdict of guilty. Some of these matters may be capable of being raised at that time but that will depend, to a considerable degree, on the conduct of the trial.
5 Amongst the matters that his Honour Justice Barr took into account in rejecting the application for either a permanent stay or an adjournment, were certain aspects of the conduct of the trial, particularly regarding the jury selection process and also the directions that he, as the trial judge, would be able to give the jury as to their deliberations.
6 These were both matters open for his Honour to take into account. They do indicate that the application is in many respects premature, because the mode of dealing with the difficulties that may have arisen in this regard, as outlined by his Honour, remains open. Whether or not that proves to be satisfactory, in all the circumstances, is not something about which this Court should speculate at this time.
7 The first ground of appeal is that his Honour erred in failing to find that the relevant adverse publicity was not of such an exceptional nature as to warrant a permanent stay of proceedings. In the submissions in this Court today Mr Dalton, who appears for the Applicant, said that one aspect was unprecedented.
8 Before I deal with that I should outline the background that, prior to the first trial, the Applicant had made a similar application in this Court on the basis of quite extensive publicity that had occurred about the trial. That application was rejected by Justice Wood, then Chief Judge at Common Law, and, on appeal from that judgment, in this Court.
9 The prior publicity nevertheless served, to some degree, as part of the background for the application made to Justice Barr and which is now before this Court.
10 The additional factor to which our attention was particularly directed in this appeal was the speculation in some of the media as to whether or not the failure of the jury to agree was of such a character that a substantial majority of the jurors did in fact agree on a verdict but one juror, or perhaps more than one juror, did not agree. Whether or not that verdict was of guilty or for an acquittal was left open in most of the publicity, but in some of the media publicity, to which attention is directed, there was an inference to the effect that the majority were in favour of a guilty verdict.
11 This is the sort of material that can give rise to prejudice. One can understand why it would be prejudicial for a new jury to be told of what the previous jury had, at least by majority, believed. Nevertheless the nature and extent of the publicity involved in this case is not of the exceptional character required for a permanent stay. Nor in my opinion, anticipating what I will say with respect the other grounds of appeal, is it of a character which justifies an adjournment.
12 The primary publications were of an ephemeral character on radio, one in Sydney and one in southern New South Wales, in areas from which no member of the jury was likely to come. It was also four months ago. There was one publication in a newspaper and, on the facts before Justice Barr, a Google search would have revealed that publication on an off-shore website.
13 These are matters that are capable of coming to the attention of potential jurors, but they are not of the exceptional character that would undermine a fair trial. The courts have, over recent years, increasingly taken the view that jurors are not to be treated as exceptionally fragile; that jurors obey directions given to them by the trial judge and that the courts should continue to act on the basis that the jury system works in the manner in which it should. Further, that a matter of this character, as to what other jurors felt, which seems to be the nub of the current problem, is not as significant as much of the publicity that has been found not to justify a stay of proceedings in other cases, including this Applicant’s own case on the last occasion.
14 Matters of what the evidence may be in a trial and speculation about evidence that may not in fact be tendered in evidence or be rejected upon tender, are matters that have been considered in the previous case law. The question of what a previous jury may or may not have thought about the case does not seem to me to be very high on the level of risk.
15 Justice Barr, who will be the trial judge, has indicated that he will go through a process of asking jurors in the jury selection process of whether they felt that they could not approach the case with an impartial mind. He has also indicated that he will give directions to the jury of the traditional character: that they have to decide the case on the basis of the evidence before them and on no other basis. That would encompass such knowledge as they may have acquired, a chance which Justice Barr believed, correctly in my opinion, to be slight, of the outcome of the previous trial.
16 It seems inevitable that at some stage during the trial the jury will become aware of the fact that there was a previous trial not leading to a verdict. Whether that is so or not, it is unlikely that any juror will have access to the information which occurred in publications, primarily of a transient character, in which there appears speculation about what the majority was in that previous trial.
17 With respect to the publication on the internet, access to the internet in the course of a trial, by a juror, is now an offence under the Jury Act 1977. The Courts have standard form directions requiring jurors not to access the internet. There is no reason to believe, in the context of a criminal offence, together with a direction backing up that offence, that any juror would disobey.
18 In my opinion nothing has been shown that his Honour erred in any respect in his assessment that there was nothing of the exceptional character in the facts of this case which could justify a permanent stay.
19 The second ground of appeal was that his Honour erred in finding that a delay of four months was sufficient to remove the risk of prejudice from the adverse publicity upon the minds of the prospective jurors. His Honour may not have expressed a finding in quite that way, but his Honour took into account the fact that there was a delay of four months. In all of the circumstances, in my view, it was open to his Honour to make that finding, indeed I do not see anything in the written submissions which indicated that his Honour’s exercise of discretion miscarried in any relevant respect on that ground.
20 The next ground of appeal is that his Honour erred in finding that a direction to the jury panel in an attempt to exclude any potential juror who may be influenced by the adverse publicity, will be sufficient to remove the risk of prejudice upon the minds of the prospective jurors. In this respect alone, there was a submission which raised a possible legal question with respect to the test his Honour applied, something that was capable of constituting a challenge to an exercise of discretion.
21 The Court’s attention was directed to par [55] of his Honour’s judgment where he said this:
- “The jury for the applicant’s trial will be instructed in clear terms to judge the issues only on the evidence put before them during the course of the trial. They will be instructed to put out of their minds anything they may have heard about the matter from any other source. I am bound to proceed upon an assumption that a jury will comply with those directions.”
22 It was suggested that the last sentence of this passage of his Honour’s reasons applied a wrong test: that his Honour was not “bound to proceed” on any such basis.
23 I do not understand his Honour to have meant by this sentence that his Honour was in any way legally bound to proceed. It was a conclusion that he made and that he drew from his own experience of jury trials: that juries do obey directions and also act on the basis of the evidence put before them. This is the experience of the broad range of judges who are involved in the criminal justice process. His Honour was drawing on his own experience in that respect, rather than laying down some kind of test of a legal character.
24 In my opinion his Honour was entitled to proceed on the basis that he indicated, namely, the directions of a character his Honour referred to would be obeyed.
25 The next ground was that his Honour erred in finding that a direction to the jury that they should put out of their minds anything that they may have heard about the matter from any source, will be sufficient to remove the risk of prejudice from the adverse publicity upon the minds of the jurors. No legal proposition is advanced to suggest that this led to an error in the exercise of the discretion. For the reasons I have already indicated, in my opinion his Honour was entitled to come to that conclusion.
26 The final ground of appeal is that his Honour erred in finding that the directions to the jury, to the effect that they should not conduct their own research, including research on the internet, will be sufficient to remove the risk of prejudice from the adverse publicity upon the minds of the juror.
27 In the written submissions by Mr Dalton, the point is raised that perhaps prospective jurors are likely to have researched the topic prior to the trial. I find that difficult to accept as a submission. Jurors are not aware of what trial they are likely to sit on. In any event, for the reasons I have already indicated, both in terms of practice with respect to a direction not to conduct their own research, together with the reinforcement now found in s65(c) of the Jury Act 1977, it was open to his Honour to conclude that they would obey the direction not to conduct their own research.
28 In my opinion the application for leave should be dismissed.
29 SIMPSON J: I agree.
30 JOHNSON J: I also agree.
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