REGINA v Bruce Allan BURRELL - [2006] NSWCCA 74

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

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2006/535

SPIGELMAN CJ
SIMPSON J
JOHNSON J

Friday 10 March 2006

REGINA v Bruce Allan BURRELL

NON-PUBLICATION ORDER

(As to nature of submissions on application)

Judgment

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…

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 REGINA v Bruce Allan BURRELL

Details

AGLC: Regina v Bruce Allan Burrell [2006] NSWCCA 74
Case: [2006] NSWCCA 74
Decision Date: 10/03/2006

CaseChat Overview and Summary

In Regina v Bruce Allan Burrell, the appellant sought leave to appeal against an interlocutory decision that rejected his application for a permanent stay or adjournment. The case involved allegations of serious criminal conduct, including murder and other violent offences. The appellant argued that the pre-trial publicity about the failure of a jury in a previous trial to reach a verdict would prejudice potential jurors, thereby undermining the fairness of the trial. The court was tasked with determining whether such publicity was of an exceptional nature that would necessitate a permanent stay or adjournment and whether a direction to the jury panel and jurors would be sufficient to mitigate any prejudicial effects.

The legal issues before the court included whether the nature of the pre-trial publicity was so exceptional that it would prevent a fair trial, despite the measures in place to address potential bias. The appellant argued that the extensive and negative publicity about the previous jury's inability to reach a verdict would inevitably influence prospective jurors, making it impossible for them to approach the case with an unbiased mindset. The court needed to weigh the potential impact of this publicity against the presumption of fairness inherent in the judicial process and the effectiveness of judicial directions in managing any prejudice.

The court concluded that while the pre-trial publicity was indeed extensive and potentially prejudicial, the measures in place, including robust jury selection processes and explicit directions to the jury panel and jurors, were sufficient to mitigate the risk of prejudice. The court found that these measures were adequate to ensure that the appellant would receive a fair trial. Therefore, the application for leave to appeal was dismissed, and the trial proceeded as scheduled. The court's decision underscored the importance of the presumption of fairness in the administration of justice and the effectiveness of judicial directions in managing the impact of adverse publicity.

Orders