BURRELL v R [2007] NSWCCA 65 | Case summary | Zoe

NSWNSWCCA

BURRELL v R [2007] NSWCCA 65

[2007] NSWCCA 65

Court of Criminal Appeal (NSW)|2007-03-16|Before: McClellan CJ, Sully J, James J, Barr J, Grove J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2007-03-16

Before

McClellan CJ, Sully J, James J, Barr J, Grove J

Catchwords

CRIMINAL LAW

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

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

New South Wales

Court of Criminal Appeal

CITATION: BURRELL v R [2007] NSWCCA 65

This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 November 2006

JUDGMENT DATE:

16 March 2007

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 332; James J at 333

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal - criminal trial - murder - evidence - burden of proof - assessment by jury - indispensable intermediate facts - essential intermediate fact - circumstantial evidence - whether to be satisfied beyond reasonable doubt of each fact from which inference of guilt to be drawn CRIMINAL LAW - reasonable hypothesis consistent with innocence - hypothesis consistent with innocence must be more than mere speculation or conjecture - hypothesis consistent with innocence is reasonably possible - police investigation inadequate and capable of weakening Crown case - EVIDENCE - section 137 - restricting cross-examination - admissibility of document for the truth of its contents - significant probative value - positive identification - danger of unfair prejudice - EVIDENCE - section 38 - unfavourable evidence - unfavourable witness TRIAL BY JURY - juror's note - sanctity of jury room - finality of verdict - secrecy and confidentiality of jury deliberations inter se - irregularity in jury process - communications between jury and trial judge to be disclosed in open court - Black direction - reasonable apprehension or suspicion juror will not discharge task impartially - juror disqualification - juror bias - unsafe and unsatisfactory verdict - SENTENCING - appeal - murder - killing for financial gain - imprisonment for life - whether manifestly excessive

LEGISLATION CITED: Jury Act 1977

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Rules.

CASES CITED: Barca v The Queen (1975) 133 CLR 82

The appellant was sentenced to life imprisonment upon the murder count, the sentence to date from 23 December 2005 and a term of imprisonment of sixteen years, with a non-parole period of twelve years, both to date from 23 December 2005 upon the kidnapping count. The appellant appeals against his conviction and seeks leave to appeal against the severity of the sentences imposed.
The trial at which he was convicted was the second trial of the appellant on these charges. At his first trial the jury was unable to agree and, after deliberating for ten days, was discharged without reaching a verdict. It was agreed at the second trial that the rulings which his Honour made at the first trial would be applied at the second trial. THE CROWN CASE Mrs Whelan disappears
The Crown alleged that Mrs Whelan was kidnapped on 6 May 1997 and killed shortly thereafter. Her body has never been found. The appellant was arrested and charged with the kidnapping and murder on 1 April 1999. The Crown case against the appellant was entirely circumstantial. I have set out below a summary of the relevant evidence.
Mrs Whelan was married to Mr Bernard Whelan, a senior executive of a company known as Crown Equipment, which is a large multi-national company based in the United States of America. It manufactures and sells fork lift vehicles. Its Australian premises were based at Smithfield in Western Sydney. The Whelans lived on a large property at Kurrajong and were financially secure. The evidence of a number of persons at the trial was that the Whelans were a devoted couple and were equally devoted to their three children.
According to the prosecution Mrs Whelan was last seen at the Parkroyal Hotel in Phillip Street Parramatta at about 9.38 am on Tuesday, 6 May 1997. On that day her image was captured on security video footage which was tendered at the trial. That footage also contains images of a Pajero 4WD motor vehicle outside the hotel with similar features to one driven by the appellant. It was the Crown case that the appellant abducted Mrs Whelan and probably did so after she had entered his vehicle outside the hotel on that morning.
The appellant was born and raised in the Goulburn area. He worked as an advertising salesman and met his second wife, Dallas (Bromley) in an advertising company in Sydney where they had both worked. They were married in 1985 and soon after moved into a unit in Marine Parade, Lurline Bay, a seaside suburb in the eastern suburbs of Sydney. In 1998 they purchased a rural property called “Hillydale” at Bungonia near Marulan in partnership with Dallas’ parents, Les and Shirley Bromley. Both the appellant and Dallas worked for a company called “the Advertising Works.” One of the accounts that the appellant had responsibility for was Crown Equipment. In this capacity the appellant came into contact with Mr Whelan and they became friends. They shared an interest in farming and sporting shooting. They went away together on shooting trips. The appellant also met Mr Whelan’s family including his wife. The Whelans attended the appellant and Dallas’ wedding in 1985.
In 1987 Mr Whelan offered the appellant a job at Crown Equipment which the appellant accepted, becoming the advertising manager. During his employment the appellant apparently went to the Whelans’ Kurrajong property on occasions including a tennis day for Crown employees in 1989. Following the economic downturn in December 1990 the appellant was made redundant. Mr Whelan was required to bring him that news. After that time there was only sporadic contact between the two men. The last contact between them prior to 1997 was in about 1993.
After leaving Crown Equipment the appellant drifted from position to position. He did not stay long in any job and was largely living off the income of his wife which she gained as a graphic artist. They lived in the unit in Lurline Bay. During this time the relationship between the appellant and his wife deteriorated. In early 1994 Dallas was struck with a particularly serious form of cancer and underwent an extended period of chemotherapy, although she managed to keep working. In 1994 the appellant acquired a green, two door, 4WD Pajero. He also acquired a Jaguar motor car. In 1995 Dallas opened her own advertising business, Burrell Advertising and Design which prospered. The Crown alleged that the appellant became resentful of her success and began to spend more and more of his time at Hillydale on his own.
In May 1996 Dallas decided to separate from the appellant. In December 1996 they reached a financial settlement which necessitated each of them borrowing $125,000 in order to buy out Dallas’ parents’ interest in Hillydale. The appellant ended up owning Hillydale, which became his home, but he had difficulty coping with the mortgage payments. The Crown alleged that by early 1997 the appellant’s financial position had become extremely precarious. For the period July 1996 to May 1997 his income was essentially dependent on some occasional sales of live stock, a motor vehicle and a tractor together with “loans” from his father. Incoming funds from this period totalled about $26,000 while outgoings totalled almost $42,000. When interviewed by the police on 21 May 1997 the appellant indicated that as at April 1997 he had not effectively worked for a wage for a number of years and that he had had to borrow money from his father to exist for the previous six months. At 1 April 1997 his bank balance was $941.97 which was insufficient to meet the current month’s loan repayment or any other of his regular expenses.
The Crown alleged that in January or February 1997 the appellant asked another friend and former work acquaintance, Mr Peter Sean Buckley, who was then a director of a motor vehicle parts company, Ultratune, if he could give the appellant a letter saying that the appellant worked at Ultratune so that he could present it to a bank to obtain a loan. The appellant allegedly said to him: “you have got to help me out, I need to refinance, I need some money, I promise you I’ll pay the money back … Can you help me refinance my house? … Will you give me a fictitious letter of employment that shows that I work with your company for $50,000 or $60,000 a year so I can take that to the bank and get a loan.”
Mr Buckley refused to provide such a letter, saying that he was not going to be involved in that sort of thing. The appellant sought to obtain money from Ultratune in return for some assistance that he could give in some litigation in Melbourne. Subsequently the appellant was on the phone to Mr Buckley regularly asking him for money. Mr Buckley gave evidence that the appellant was “very, very desperate’ and pestered him repeatedly. At one stage, trying to put him off, Mr Buckley said to the appellant that he would try to help out, depending on his cash flow. The appellant apparently replied: “Look you, you know, you better fucking get the money … make it fucking happen.”
Mr Buckley became apprehensive after this exchange and went to lengths to avoid the appellant. As it happens he did not provide him with any financial help.
The Crown alleged that this exchange with Mr Buckley reflected the desperate state of the appellant’s financial position in the first few months of 1997. The Crown emphasised that the appellant not only made demands upon his friend but sought to involve him in a significant fraud of a bank in order to enable him to obtain money. He was unemployed and had not received any substantial income for a number of years. His ability to rely upon his wife for money had ended with their marriage.
Notwithstanding the appellant’s impecunious position there was evidence of his planning significant investments, in particular in Tasmania. He allegedly proposed to a female friend, Ms Cathie Tulloh, that she might move with him to Tasmania where he said he had been looking for a property to buy. The evidence disclosed that the appellant had made enquiries about purchasing a property in Tasmania from Benjamin Wagner, project manager of Tasmania Development and Resources, where he proposed to set up a winery. He was told the minimum cost would be about $600,000 to $750,000. He also had ideas of spending money on the cottage at Hillydale. When the property was searched in May 1997 the police found a note written by the appellant showing planned improvements totalling $62,000. The Crown alleged that although the appellant’s true financial situation precluded either the setting up of a winery or the improvements to his property, his plans were consistent with an expectation of a sudden and significant improvement in his financial situation. The appellant phones Mr Whelan
The appellant rang Mr Whelan on 7 April 1997. He had not spoken to him for at least four years. The circumstances were that the appellant rang Crown Equipment and asked to speak to Mr Whelan. Mr Whelan was not there and his secretary took a message. That night Mr Whelan rang the appellant from his home at Kurrajong. Mr Whelan said the conversation mystified him. Although Mr Whelan expected to be asked for a favour or assistance that request never came. To Mr Whelan the conversation seemed to be “pointless.” There was just a general conversation about both their families. During the conversation Mr Whelan told the appellant that it was usual for him to go to Adelaide to attend work meetings each Wednesday or every second Wednesday. He also disclosed that he was frequently required to travel to other offices of Crown Equipment both interstate and overseas. The Crown case was that the appellant’s real purpose for the call was to find out Mr Whelan’s movements. The appellant visits the Whelan home on 16 April 1997
The next occasion on which Mr Whelan was away in Adelaide was on Wednesday 16 April 1997. On that morning the appellant turned up, without having previously indicated that he would do so, at the Whelans’ property at Kurrajong. He had driven there from his father’s home at Balgowlah in Sydney, where he had stayed overnight. He was driving a Jaguar motor car. When he arrived at the front entrance to the property he found the gate locked. There was a coded keypad which had not been there when he had previously visited the property. The gate was situated a considerable distance from the house. Although the evidence confirmed that he had a mobile phone with him in his car, the appellant did not use it to call Mrs Whelan. Instead he drove to North Richmond a distance of approximately 10 to 15 kilometres and called the Whelan home from a public phone. The telephone was answered by Ms Amanda Minton-Taylor, who was the Whelans’ 31 year old nanny/horse trainer. At home on that day was Mrs Whelan and her 11 year old son, James Whelan. The appellant told Ms Minton-Taylor that he was an old friend popping in to say hello. Ms Minton-Taylor could not find Mrs Whelan at that time but she gave the appellant the keypad number with which to open the gate.
The Crown case was that the appellant travelled back to North Richmond to make the telephone call so that he would not leave a trace of his presence at the Whelan farm on his mobile telephone record. The appellant later told the police that he either did not have his mobile phone with him on 16 April 1997 or, if he did, that he may have tried it and there was no signal. Evidence gathered by the police contradicted both of these suggestions. The appellant had an analogue mobile phone. Tests showed that there was a good analogue signal at the front gate of the Whelan property, although it diminished in one location 200 metres from the gate. After visiting the Whelan property and while returning to his father’s home, the appellant used the phone at Ryde to call his father. The Crown’s explanation for the appellant returning to North Richmond has a possible flaw. If, as happened, the telephone was answered by a person other than Mrs Whelan it would not matter a great deal whether the telephone call was made from a mobile phone, which could be traced or from a public telephone. However, it was the Crown case that the appellant had anticipated that Mrs Whelan would be at home alone and that he intended to kidnap her on that day. It was for this reason that he did not wish any record of the telephone call to be available.
After speaking with Ms Minton-Taylor the appellant drove back to the gate which he opened and continued to the house. He was met by Mrs Whelan and was introduced to Ms Minton-Taylor. Ms Minton-Taylor said that Mrs Whelan showed no signs of distress or anxiety. 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. Some weeks later the appellant told the police that he had gone to the Kurrajong property that morning to see Mr Whelan to ask him for some freelance work after having unsuccessfully tried to contact him at Crown Equipment. Relevant staff at Crown gave evidence that no one had rung that morning in an endeavour to speak to Mr Whelan.
Mrs Whelan and the appellant had a cup of coffee in the garden whilst Ms Minton-Taylor occupied herself in the kitchen or with work in the stables. Nobody heard what they spoke about but, when the appellant was interviewed by the police some weeks later, he said that he had told Mrs Whelan of his quest for work. He said that she had offered to intervene and speak to Mr Whelan about it, but that he said that he had declined her offer as he wanted to do it directly himself. When he left, Ms Minton-Taylor saw the appellant give Mrs Whelan a kiss on the cheek. She said that after he had gone Mrs Whelan spoke with her and said: “Can you do me a favour? You never saw him here. Don’t tell anybody. Give me a couple of weeks and I’ll tell you why. I said ‘Okay.’ Kerry said ‘Don’t worry’ and half laughed and said ‘I am not having an affair.’ Her facial expressions looked as if she meant what she said. She said ‘with this body and held her arms out suggesting that her size and appearance was not attractive. Somewhere through the conversation Kerry said “it’s a surprise.”
She also gave evidence that after a couple of minutes, while she was standing beside the kitchen bench, Mrs Whelan said in a soft voice muttering to herself “that bastard, why did he do this to me.” She said that Mrs Whelan “wasn’t directing this to me, she appeared to be saying it to herself.”
When the appellant was interviewed by police in May 1997 he denied making any arrangement to meet Mrs Whelan on an occasion subsequent to his visit to Kurrajong. It was the Crown case that such an arrangement had been made and that they were to meet at 9.30 am at the Parkroyal Hotel in Parramatta on Tuesday, 6 May 1997. One Crown theory was that this arrangement had been made so that the appellant could go with Mrs Whelan to see Mr Whelan at Smithfield to ask for work.
It was the Crown case that there was no explanation for the appellant coming to Kurrajong that morning (on 16 April 1997) except to pursue his sinister intentions. Being aware from his earlier phone call to Mr Whelan that he would be in Adelaide that Wednesday, the Crown case was that the appellant expected to be able to kidnap Mrs Whelan on that day. The events of 6 May 1997
On Tuesday, 6 May 1997 three weeks after the appellant’s visit to Kurrajong, Mrs Whelan was due to meet her husband at about 3.45 pm at his office at Crown Equipment. They were to travel together to Adelaide that afternoon. Mr Whelan left home that morning at about 8.00 am and spent the day at work. Mrs Whelan told her husband that she was going to Parramatta to visit a beautician or skin specialist. In fact her diary for that day contained the bland entry “9.30 am.” The evidence was that Mrs Whelan normally wrote in her diary the time and purpose of any engagement. Police enquiries failed to reveal any beautician or skin specialist in Parramatta with whom Mrs Whelan had an appointment that day.
Mrs Whelan left home and drove to the Minton-Taylor home at Glossodia arriving at about 8.20 am. She spoke to Ms Minton-Taylor and her mother, Marjorie Minton-Taylor (who was a good friend of the Whelans and who, together with her husband, was intending to join the Whelans on a holiday they had planned in Europe later that year). Mrs Whelan apparently mentioned that she had an appointment at Parramatta at 9.30 am and she was then going to go shopping. Mrs Whelan left the Minton-Taylor home at about 8.45 am. On the way to Parramatta she spoke briefly to Mr Whelan on the telephone from her car. The evidence indicated that on that morning she was cheerful and showed no anxiety or preoccupation.
At 9.35 am Mrs Whelan was observed on the security camera to drive into the underground car park of the Parkroyal Hotel in Phillip Street, Parramatta. She often used this car park when she went to Parramatta. She had previously told her husband that she was going to park there on that day. The hotel and its car park have a security system comprising a number of cameras with a video recorder. The system recorded a series of still black and white images from up to 8 cameras located at various sites around the premises. Each shot lasted only a second or two so that there was a break of a number of seconds between successive shots from the same camera. Mrs Whelan’s car was filmed entering the car park via the ramp from Phillip Street. She was filmed walking out of the car park along the right hand or western side of the same ramp into Phillip Street. The last shots of her at 9.38:03 and 9.38:08 showed her exiting the ramp. She did not deviate to her left and she either crossed Phillip Street or turned west. Events at the Parkroyal Hotel
When she left the car park up the ramp, Mrs Whelan walked in the right hand lane and adjacent to the right kerb. Her image disappeared into the light while she was still on the right hand side of the car park entry. The defence case was that she was later observed in a position which would have meant that she had walked to the left. However, that evidence is entirely inconsistent with her movements as shown in the video recording and in my view can be put aside. If she did not turn right having left the car park entry the only other rational direction for her progress was straight across Phillip Street.
The Crown case was that a Pajero 4WD like the one in the appellant’s possession, was seen in camera 7 apparently moving away from the kerb on Phillip Street outside the Parkroyal Hotel heading east across the front of the hotel car park ramp. It was contended that this was the means by which Mrs Whelan left the vicinity of the hotel after she had met the appellant outside. The Pajero vehicle was seen in camera 7 at 9.38.45/46.
Earlier that morning, at 9.01:24 am, a similar Pajero 4WD vehicle was also seen passing outside the Parkroyal Hotel. However, it was not possible to observe whether it stopped or merely moved past the hotel. It was the Crown case that because this vehicle was seen in camera 2 but not in camera 7, which would have been the sequence if the vehicle had continued to move, the vehicle observed at 9.01:24 am had parked outside the hotel. The Crown case was that this was the appellant’s vehicle and that he waited at the kerb until Mrs Whelan arrived.
There was no observation of Mrs Whelan entering any vehicle. However, the Crown relied on the absence of any image of Mrs Whelan being captured on the hotel’s CCTV footage which covered pathways she could have used to move away from the hotel. The Crown also relied on the evidence of Mr Poras Shar who had left the car park using the ramp at the same time and in the same direction as Mrs Whelan. His evidence was that Mrs Whelan had turned right at the top of the ramp which meant that she would have walked towards where the Crown alleged the Pajero was parked. However, Mr Shar believed that Mrs Whelan had walked towards a white vehicle and not a 4WD. The Crown contended that in this respect he was mistaken and his recollection may have been confused by seeing a white sedan parked across the other side of the road which was observed on camera 7 at 9.38:45 am.
The police conducted a survey of owners of Pajero 4WD vehicles. Amongst others, two persons, Mr Morales and Mr Cox responded. Mr Morales initially completed his form indicating that his Pajero 4WD was in Phillip Street on the morning of 6 May 1997 in the vicinity of the Parkroyal Hotel, although he later retracted this claim. There were a number of phone calls recorded on his mobile phone as being made via the Parramatta mobile phone cell to a Mr Parassas, who was a person who he visited at various times in the course of his work in Phillip Street, Parramatta.
Mr Cox initially said that his vehicle was not in the vicinity of the Parkroyal Hotel on that morning. However, he later recalled that he had been at the Parkroyal Hotel on the relevant morning to attend a sunglasses exhibition. When the police attended his home to make further enquiries he indicated that he was not certain his vehicle was outside the hotel at the relevant time. However, when he saw a photo in the media during the inquest in 2003 he came to believe that he could observe his vehicle in the photograph identifying it from the fact that his vehicle and, he believed, the vehicle in the photograph, were fitted with non-standard wheels. He ultimately concluded that it could not be his vehicle because he was not observed on the video footage leaving the hotel that morning. He also recalled the position of a table from which tea and coffee was being served that morning and the video footage did not show it in the position he recalled.
Although he concluded that he did not attend the Parkroyal Hotel that morning, Mr Cox was definite that the vehicle depicted in the video was fitted with non-standard “mag” wheels. However, Mr Robilliard who worked for Mitsubishi gave evidence in which he stated that there was not sufficient detail available from the video images to make a determination in relation to the wheels which were fitted to the vehicle shown in the video.
The Crown argued that the vehicle caught in the security footage at 9.01:24 am had a dirty rear windscreen similar to the rear windscreen of the appellant’s vehicle when it was subsequently inspected by the police on 16 May 1997. Examination of the video footage confirms that the windscreen was dirty, the path of the wiper blade having cleaned it in part.
Camera 6, which was inside the main lobby of the hotel facing out into the driveway and also into the street did not show Mrs Whelan at all after she left the car park. This precludes the possibility that she continued walking along the footpath or the street for any distance in a westerly direction or that she entered the hotel. However, there was another camera (camera 7) situated on the hotel frontage to Phillip Street just above the carpark ramp which pointed inwards away from the street towards the glass doors of a nightclub. Although the camera faced away from Phillip Street it was possible to see a reflection in the glass doors of a section of the Phillip Street roadway outside the car park ramp. The Crown alleged that this camera got a glimpse of the top of Mrs Whelan’s head as she exited the car park ramp to the right (west). It was submitted that this precluded the possibility that she crossed the road. It was also submitted that the fact that she was not seen afterwards by camera 6, or camera 7, precluded the possibility that she crossed the road or that she walked up the street to the west or that she entered the hotel. It was the Crown case that the only reasonable conclusion was that Mrs Whelan entered a vehicle parked outside the hotel.
As at 6 May 1997, the appellant was in possession of a 1993 Mitsubishi Pajero GLS, 2 door, 4WD vehicle. It was two-tone in colour, with the predominant colour being “Hanover Green” and it had a bull-bar and a running board but no roof racks. The 2 door Pajero was a relatively uncommon car.
At 9.38:46 am, 43 seconds after Mrs Whelan exited the car park ramp, camera 7 recorded a two door Pajero pulling out from the kerb lane just to the west of the carpark ramp, and proceeding in an easterly direction down Phillip Street. It was the Crown case that an indistinct passenger could be seen in the front seat. The Pajero caught on the camera was a two-tone, 2 door 4WD, and was a model made between 1991 and 1997. It was the Crown case that the vehicle on the video was consistent with the car owned by the appellant.
Extensive investigations by the police disclosed that there were only 1,716 two door Pajeros of the relevant model produced and sold in Australia in the years 1991-1997. Police contacted many of the owners of these vehicles who indicated that they had not been at the Parkroyal Hotel that day. The value of this evidence may be doubted. If a vehicle owned by another person had been involved in the kidnapping it is unlikely that its owner would have confessed to being in the vicinity of the hotel on that morning. However, on the Crown case the coincidence that 43 seconds after Mrs Whelan emerged into Phillip Street a vehicle of a kind similar to the appellant’s pulled out of the kerb was alleged to be of significance. The other camera inside the lobby of the hotel did not record Mrs Whelan as having walked along Phillip Street past where the vehicle was parked. The Crown case was that the irresistible conclusion was that she got into the vehicle seen by camera 7, the same kind of vehicle as that possessed by the appellant.
When Mrs Whelan failed to meet her husband on the afternoon of 6 May 1997 he went searching for her car and found it in the car park of the Parkroyal Hotel. He then alerted the police and began a search for her. The ransom demand
On the following day, 7 May 1997, Mr Whelan received a ransom demand by mail at his home. It was in the following terms: “There will be no second chances. Follow all instructions or your wife will die.

The demand had been posted the previous day and processed through the south-west mail centre at Leighton Field. This meant that the letter must have been posted somewhere in an area bounded by Bargo to the south, Silverwater to the north, Merrylands to the west and Bankstown to the east. The ransom letter was consistent with having been typed on a Cannon typewriter, using a Cannon Orator 10 daisy wheel. The appellant had a Cannon QS 100 typewriter in his possession at the time, but the daisy wheel and ribbon cartridge found in it were conclusively shown not to have been used to produce the ransom letters.
It was the Crown case that the reference in the letter to excluding the police and outside involvement were completely inappropriate in the circumstances in which the note was received. It was the Crown’s contention that the letter had been drafted with the expectation that the family would receive it before it was realised that Mrs Whelan was missing. Because it was posted at least a day and possibly two after Mrs Whelan’s disappearance the warnings about contacting the police were meaningless, because the family, in all likelihood, would already have notified the police. For this reason, the Crown case was that the letter had been written with the intention that the abduction of Mrs Whelan would occur from the family home on 16 April 1997 at which time the ransom letter would be left. Because other persons were present at the home on that occasion the appellant was unable to carry out his plan but did not alter the terms of his ransom letter before it was ultimately posted.
The relevant advertisements were subsequently inserted in the Daily Telegraph on 13 to 20 May 1997 inclusive. On 13 May 1997 the appellant was seen purchasing a Daily Telegraph newspaper. However, the advertisement prompted no response from any person. The defence case was that the fact that the appellant purchased a Daily Telegraph was of no moment as it could have been his regular daily newspaper. The “false sighting” evidence
There was other evidence relating to Mrs Whelan’s movements on the morning of 6 May 1997. It was characterised by the Crown as “false sighting” evidence.
Mr Norman Elliott gave evidence. He said that he had observed Mrs Whelan a couple of weeks previously in a café in the Greenway Arcade at Parramatta. He said he noticed her because he found her appearance to be attractive. He said that on visiting the Parkroyal Hotel on the morning of 6 May 1997 he recognised Mrs Whelan as she was walking up the carpark ramp. He said he recognised both Mrs Whelan and the scene of her walking up the ramp when pictures were shown in the media some weeks later. He said that having entered the hotel he left it 4 or 5 minutes later, placing his exit well after the Pajero was seen to pass the front of the hotel ramp at 9.38:45. He said that he saw Mrs Whelan talking to a man across the other side of the laneway, immediately to the east of the hotel. The Crown submitted that Mr Elliott’s evidence was unreliable because he initially said he entered the hotel through the revolving doors at the western end of the foyer and used the bathroom behind the reception desk but he could not be seen on the security camera at that point entering or exiting the hotel. He also described the man walking up the ramp behind Mrs Whelan (who if his recollection was correct must be Mr Shah) as caucasian and did not recognise him when he was brought into court during the 2005 trial. Mr Shah was from India and was of dark complexion.
Mr Elliott conceded that given that he had parked to the east of the hotel it was more likely he entered the hotel having immediately crossed the front of the car park driveway by the doors at the eastern end of the foyer and used the bathroom at that end of the foyer. Given the configuration of the cameras and relevant obstructions he would not necessarily have been picked up by the security camera if he took this path. It was contended on behalf of the appellant that Mr Elliott may have been mistaken about Mr Shah’s appearance because Mr Shah was coming from the dark of the car park and from a position lower than Mr Elliott and, more importantly, because Mr Elliott’s attention was focused on Mrs Whelan who he recognised and not on Mr Shah. Mr Elliott remained convinced that he had seen Mrs Whelan that morning at the relevant times and in the circumstances he described.
There was also evidence from Mrs Frances Carter who worked in Parramatta and said she saw Mrs Whelan that morning with a man in George Street near the Octagon building. She said she paid considerable attention to this person because she appeared distressed and kept staring at Mrs Carter who immediately afterwards thought that she may have needed help. She was quite certain it was Mrs Whelan when she visited the caravan set up outside the Parkroyal Hotel and saw her photo and the mannequin which had been displayed. She also said that she recalled the diamond ring that Mrs Whelan was wearing. She said that she was 80 to 90% sure it was the same ring. She said that she took a keen interest in jewellery because her father was a jeweller for whom she had previously worked and the ring setting was quite unusual. She said she made this observation at 10.20 am or a little earlier. A computer sketch was generated of the man she believed she observed and when it was shown to a number of employees of Crown Equipment they were of the view that it bore a striking resemblance to an ex-employee. However, when the two police interviewed the relevant man, Ivan Frank, they did not confirm this observation. The description did not match that of the appellant.
The Crown sought to attack Mrs Carter’s reliability upon the basis that it was originally recorded in her statement that her observations took place at lunchtime. She said that this was because she had not properly determined her movements that day and originally assumed it was lunchtime because that was when she normally went for a walk. She said that she realised it was earlier in the morning when she cross referenced her movements that day with her employer and remembered that she had gone for a walk earlier in the morning, at his suggestion, just after she had arrived at work because she was suffering from a headache. She was also challenged because she had said in her original statement that she believed the woman was possibly Mrs Whelan but, in her evidence, said she was quite sure about it after visiting the caravan where the mannequin was displayed.
Mrs Margaret McMurray also gave evidence. She said she saw a woman she believed to be similar to Mrs Whelan just before 9.45 am. Mrs McMurray, a councillor on the Hornsby Local Council and a property manager was on her way to meet her solicitor at the Compensation Court. The Crown suggested her evidence was of little weight because she said the woman was only similar to Mrs Whelan and that she thought the woman was in her fifties. Mrs McMurray gave evidence that although she only said the woman was similar to Mrs Whelan she did think it was Mrs Whelan and that in her view a woman’s age was quite a subjective observation. Other sighting evidence
The Crown called other witnesses who gave evidence of having sighted Mrs Whelan after she allegedly disappeared. The evidence was not accepted by the Crown to be reliable. The evidence of Mrs Lambert
The first witness was Mrs Lambert, a customs officer who worked at the Brisbane International airport. She gave evidence of processing out of Australia, some time in mid May, a woman who was distraught and saying she was concerned she would never see her children again, although she had noted on her outgoing passenger card that she was an Australian citizen who was only going overseas on a short holiday. Mrs Lambert believed she marked the rear of this person’s outgoing passenger card with an X for subsequent identification should the woman’s departure become a matter of investigation. Some time thereafter Mrs Lambert saw Mrs Whelan’s photo on the television news with a report regarding her disappearance. At the time of seeing her photo Mrs Lambert thought she had seen Mrs Whelan previously and later that night, when in bed, came to realise that it may have been Mrs Whelan who was the distraught passenger she had processed leaving the country. She alerted her superior the next day who alerted task force officers who were investigating Mrs Whelan’s disappearance.
When the matter was investigated the cross on the rear of the outgoing passenger cards could not be found. However, the task was difficult because the cards she processed for the period were only retained as microfiche copies. This exercise took place in 2003, many years after the alleged kidnapping. Some years later, when she was frustrated with the investigation into her report and the inability to find the cross, Mrs Lambert attended an alternate therapist for Pranic massage after which she said that she may have marked the card of a male passenger whom she processed shortly after the distraught woman she believed to be Mrs Whelan. The Crown pointed to the fact that there was no passenger listed as Kerry Whelan who departed Australia from Brisbane during May 1997. It was also submitted that, given the evidence that Mrs Whelan was a loving wife to her husband and children, she would not have left the country in that manner. The evidence of Mr and Mrs Williams
Mr and Mrs Williams were responsible for the care of the Whelan holiday house in Port Macquarie. They gave evidence that they had thoroughly cleaned the home, particularly the bathrooms, after the Whelans had last visited and before Mrs Whelan’s disappearance on 6 May 1997. They said when they returned to the house on 24 May 1997 they found a hair on a cake of soap, make-up on a bathroom floor, what appeared to be brown discolouration-like faeces in a toilet and, contrary to its usual condition, excess water in the shower recess. Subsequent forensic tests demonstrated that the hair on the cake of soap was that of Mrs Whelan.
The Crown argued that the evidence of Mr and Mrs Williams was unreliable because after the 2005 trial, Mr Whelan’s secretary had told him that Mrs Whelan had commented a long time before her disappearance that she was thinking of dismissing the cleaners because of poor work but had decided to keep them on because of their honesty. There was evidence that Mr Williams had on occasion been careless in leaving a light on. There was a vigilant elderly next door neighbour, Mrs Ericson, who had not noticed any activity at the Whelan home during the relevant time. The Crown submitted that it was inherently unlikely that Mrs Whelan, if she was the architect of her own disappearance, would visit their holiday home in Port Macquarie. The evidence of Mrs Woods
Mrs Woods was a hairdresser from Armidale. She gave evidence that she had a customer in her hairdressing salon in Armidale on 19 May 1997. The woman had not attended the salon previously. She said that she had not visited since. Mrs Woods said that the woman acted very strangely. She said she subsequently saw photographs of Mrs Whelan in the media. She believed that the woman in the salon was Mrs Whelan. She particularly recalled an unusual feature of the woman’s hair which was apparent in Mrs Whelan’s photograph. Mrs Woods was the wife of the Armidale District Local Police Commander. Accordingly, the defence submitted that she had an acute appreciation of the trouble which could be caused to police by reporting a false sighting of a person of interest. The defence submitted that her evidence should have been given significant weight because of her identification of an unusual feature of Mrs Whelan’s hair.
The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that Mrs Lambert, Mrs Woods and Mr and Mrs Williams were mistaken before they could convict the appellant. The telephone call from Goulburn
Mrs Kathleen Pemberton was employed by Crown Equipment as a part-time telephonist/receptionist in May 1997. She generally worked Thursdays and Fridays. She was working on 23 May 1997 when she received a call from a male at about 9.30 am. She thought the call lasted for more than a few seconds but less than a minute. At that stage she was aware that Mrs Whelan was missing. She had not met the appellant. She took some “scattered notes” during the call and immediately after it finished contacted Mr Whelan’s assistant, Ms Mary Brady. She then made detailed notes of the call before the police arrived.
She said that when she answered the call she was immediately told to tell Mr Whelan that Mrs Whelan was okay. The caller stressed to her that the media were to be called off as were the police. She continued: “he mentioned the man with the white Volkswagon. I tried to ask ‘what man and what Volkswagon?’ Each time I did try to say something I was interrupted and said just to listen and write down and take notes.”
She said the man told her to make notes, and he stressed again that the police and media must be called off. This was to be done “today.” When she asked “what man and what Volkswagon” the speaker said “Mr Whelan will know” and that he would be in touch again in two weeks. When she then said “two weeks is too long” the call was disconnected. Before it ended she had asked if she could put him through to someone more senior, to which the caller said “no.”
She described the caller as having a deep, husky toned voice. He did not have an accent. She described it as being neither a “posh voice” nor an “ocker voice” just “normal.” She said he used no slang words, she thought he sounded educated (by which in cross-examination, she meant only that he used no slang words and did not have an “ocker” voice). As to an estimate of age, she said “he was a mature voice, so I would say forties.” She indicated in cross-examination that this was really meant only to distinguish him from a young person or adolescent.
In December 1997 the police attended Mrs Pemberton’s home and played her seven cassette tapes of different people saying the same thing. Inspector Walsh gave evidence that these were an extract copied from an answer given by the appellant in his recorded interview, and six different police officers saying the same thing. The “identification procedure” was not recorded, but the tapes played or copies thereof were available, tendered through Inspector Walsh and played to the jury.
Mrs Pemberton listened to the calls, and picked two which she thought were the closest to the caller. She could not differentiate between the two as to which was closest. One of those was the tape recording of the appellant’s voice, and one was a police officer who had no connection with the case (in fact none of the six police who provided samples were officers at Goulburn on 23 May 1997 or in any way suggested to be possibly connected with the making of the call).
It was the Crown case, and not disputed, that the caller was a person with knowledge of the contents of the ransom note. Evidence was adduced by the Crown that Mr Whelan’s knowledge of the contents of the note was not, before 23 May 1997, spread by him beyond those immediately present at the time that it was received. The phone call and the appellant’s movements on 23 May 1997.
The police search of Hillydale lasted for five days and involved the full-time presence of a large number of police. There was also a large media contingent present. At 7.20 am on 23 May 1997, whilst police were still searching the property, the appellant left his home by a back route on his quad-bike. He went to the property of his neighbour, Phillip Broadhead, and borrowed his car. Leaving the Broadhead property at about 8.00 am he drove the car to Goulburn. At 9.21 am, at a time when the appellant was in Goulburn, the phone call was made from a public telephone box outside the Empire Hotel in the main street of Goulburn to Crown Equipment at Smithfield.
When the appellant was interviewed by the police on 15 June 1997 he admitted being in Goulburn on 23 May 1997 and having made two phone calls from public telephones. He admitted that one of the calls was made just after 9.00 am at the post office and one 20 to 30 minutes later from the public phone box outside the Empire Hotel. He denied making any calls to Crown Equipment. His explanation for being in the Empire Hotel phone box was that he made a call to the office of his solicitor, David Tyler in Goulburn, to make an appointment. It was the Crown case that the appellant’s explanation was demonstrably false. Although he did make a call to his solicitor’s office that morning it was a call which he made from a post office phone box. That call could be timed from records kept by the receptionist at the solicitor’s office and it was the Crown case that it was not made at or around 9.21 am. The solicitor’s office was in the side street nearby and it would have been closer for the appellant to have gone to the office rather than to walk from the post office to the phone box outside the Empire Hotel. The Crown case was that the coincidence of the appellant making a call from the relevant phone box at almost exactly the time the call was known to have been made to Crown Equipment provided highly probative evidence that the appellant was involved in the abduction.
The Crown case was that the appellant admitted being in the Empire Hotel phone box at the time the call was made to Crown Equipment because he believed he was under police surveillance when he went to Goulburn and did not want to be caught out telling a lie. If he had been observed, and if the police could prove he was in the phone box at that time, a denial by him would have been very suspicious and amounted to evidence against him. It was submitted that he evaded this possibility by providing an innocent but untruthful explanation for his presence in the phone box. J C Walsh & Sons
Ms Emma Hill gave evidence that in 1997 she was the receptionist at J C Walsh & Sons where Mr Tyler worked. Her starting time was 9.00 am. She was never late and never very early, and would arrive at 9 am or a few minutes before. A phone book tendered through Ms Hill showed that the appellant did make a successful call to David Tyler on the morning of 23 May 1997. Her record did not show the time of the call, and no phone records were available to time that call. She did not remember the time of the call. She was not approached by police until a month after the 23 May 1997, at which time she could say no more than that it was after 9 o'clock, being the time she started. Ms Hill's “estimated guess” as to the time of the appellant’s call, being the second call of the day, was that it was between 9 and 9.10 am. In cross-examination she agreed that possibly between 9 and 9.15 am would be a safer estimate of the time within which the appellant’s call had come through. In re-examination Ms Hill was asked to assume the correctness of the evidence of another witness, Jennifer Elliott, who said that she made a call at 9.30 am. On that assumption Ms Hill thought the 9.10 am mark would be better than 9.15 am because of the number of calls coming in between the appellant’s call and Jennifer Elliott's call.
The book showed Jennifer Elliott to be the tenth caller of the day and Sharon Shorrock to be the twelfth.
Sharon Shorrock gave evidence that she had a hydraulic car repair business. She usually got to work at 9.30 am - 9.45 am, after dropping her daughter off at pre-school from 9.30 am. In May 1997 she was ringing her solicitor Mark Walsh frequently. After she went through the procedure of opening windows, turning the computer on, and opening the shop, she would then turn to open the mail. That took 10 – 15 minutes. Normally she would finish those tasks about 10.00 am, then call Mark Walsh. Her best estimate at the trial, and at the time she provided a statement to police on 15 July 1997, was that she had called at about 10 am on 23 May 1997. She acknowledged that she could not recall exactly. She correctly nominated, in her statement, the fact that she did not in fact get on to Mr Walsh when she called that morning. She was cross-examined by the Crown. She acknowledged the possibility that sometimes she could have called as early as the 15 minutes between 9.30 am and 9.45 am. Intercept
There was an intercept installed on the landline at Hillydale from 20 May 1997 to December 1997. At 6.41 am on 23 May 1997 the appellant spoke to his neighbour Phillip Broadhead, and the terms of the conversation indicated clearly that the appellant was going to get access to a car for the purpose of going into town.
Details of conversations monitored pursuant to warrants may only be released to “authorised officers”. As at 22 and 23 May 1997 the authorised officers included Detective Inspector Davis, Detective Inspector Dein, Detective Inspector Howe, Detective Superintendent Bray, Detective Inspector Henderson. According to the Investigators' records Detective Sergeant Duncan (who came to be the defence's primary focus as a possible caller to Crown Equipment) was not added to the list until the 26 May 1997.
Detective Superintendent Bray gave evidence that on 23 May 1997 he received a call from Inspector Howe about the call received at Crown Equipment. He said that prior to that he did not have any knowledge that the appellant had left Hillydale and gone into Goulburn, and did not know from any documents or conversations with other officers whether information was received by any police officer, prior to the call being made to Crown Equipment, about the appellant having left his home at Hillydale to go into Goulburn.
Detective Inspector Henderson was called but was asked nothing in chief about whether he, as an authorised officer for the intercept, received information of the Phillip Broadhead call. Although an answer in cross-examination suggested that he did receive such information, he explained in re-examination a mistaken understanding of the question, and suggested that he did not recall receipt of any such information, and did not think that he did have any knowledge of the appellant’s departure from the property until he received a call from Inspector Couch at 10.30 am.
No evidence was called from Detective Inspectors Dein, Davis or Howe as to whether they received information from the Telephone Intercept Branch as to the appellant's call to Phillip Broadhead. Police Movements
Because the Crown expected the defence to seek to raise as a reasonable possibility that a police officer had made the call to Crown Equipment, evidence was adduced in the Crown case denying that proposition and other related matters raised by the defence. The two most senior investigators from the Task Force in Goulburn on the morning of the 23 May 1997, with knowledge of the ransom note, were Detective Sergeant Allan Duncan and Detective Ricky Agius.
On 22 May 1997 Senior Constable Turnbull (a Goulburn crime scene officer, assisting the officers of the task force) organised for the collection of various seized exhibits for transporting the following day to Sydney. Detective Sergeant Duncan was to attend to that, and Senior Constable Turnbull's duty book indicated that Detective Sergeant Duncan was advised of that proposal.
Detective Agius gave evidence that all his movements on 23 May 1997 were with Detective Sergeant Duncan. He gave evidence in chief that he commenced duty at the Academy at 1.00 am, travelled to Hillydale then to Goulburn at 8.00 am where the exhibits were signed out. Detective Agius was taken through the times in the various exhibit books; Lidcombe at 10.10 am and Parramatta from 10.40 am. He was taken to his phone records, and in particular the entry at 8:33 am which Detective Sergeant Duncan said he was responsible for (a call to his wife, introduced in the re-examination of that witness). Detective Agius said there was a "good chance" he was in the car at this time. He was asked in chief how long he was at Hillydale, and said "It would have been just a case of `We're going back to Sydney - anything to be done?' - just in and out."
Detective Sergeant Duncan gave evidence in chief that he went from the Police Academy to Goulburn with Detective Ricky Agius where the exhibits were collected, then to Hillydale and on to Sydney. His duty book contained an order of events in accordance with the evidence of Detective Agius. Detective Sergeant Duncan agreed that none of the exhibit documents in respect of 23 May 1997 pointed in any way to his attendance at any of the three locations.
None of the officers who received exhibits (Inspector Jago, Mr Miller, Robert Goetz) added anything as to who delivered them.
Detective Inspector Henderson gave evidence that his duty book for 23 May 1997 said "Contact Analytical Labs. Confer Detective Sergeant Duncan. Confer Detective Sergeant Walsh re Bungonia", and that the next entry was meal break 12.30 pm to 1.30 pm. Having reviewed that, he said he was of the view that he consulted with Detective Sergeant Duncan at Parramatta Police Station that day. He said that he conferred with both Duncan and Walsh, immediately prior to his lunch break at 12.30 pm - but then said he was not sure if there was something else in between. The trip from Goulburn to Hillydale
The call from the public phone booth outside the Empire Hotel to Crown Equipment commenced at 9.21:35 am, and lasted 48 seconds. It was completed at 9.22:23 am. Detective Superintendent Bray conducted a timing exercise shortly prior to the trial. He said that the trip from the front gate of Hillydale to Mr Broadhead's took 5 minutes 8 seconds, from there to Mount Ash Road took 6 minutes and 20 seconds, and from Mount Ash Road to Goulburn took 18 minutes. That is, a total trip taking 29 minutes and 28 seconds, to which a minute or so needed to be added for the travel from the front gate of Hillydale to the homestead itself.
Phillip Broadhead gave an estimate of 25 minutes travel time from his property Inverary (through Bungonia, closer to Hillydale) to Goulburn. Sergeant Smith's surveillance duties on 16 May 1997 included following the appellant from Bungonia at 9.53 am, arriving in Goulburn at 10.13 am - a 20 minute trip. The appellant purchased alcohol in Goulburn on 23 May 1997. According to the receipt generated by Mac's Liquor the purchase occurred at 8.31 am. He collected the utility from Phillip Broadhead's at about 8.00 am.
Based on this evidence the Crown submitted that it was possible for the appellant to have left the phone box after the call to Crown Equipment and be back at Hillydale at a time which would have been recorded in the Command Post log as 9.55 am.
Officer Hamilton, the author of the Command Post Log for 23 May 1997 said that he had no independent recollection of when the white utility returned. However, he said the log entry of 9.55 am would be reasonably accurate within one or two minutes. The appellant was, according to the log, at the property for 5 minutes before departing again. Mr Broadhead gave evidence that he met the appellant at the apex about half way up his 600 metre driveway. This was either at 10.00 am precisely, as he said in evidence in chief, or a couple of minutes before as had been the effect of his evidence in 2005, and he conceded in cross-examination that could be the case. He agreed that he was not late for a pre-arranged 10.00 am meeting with his near neighbour Kevin Cooper. Reason for call
The Crown submitted that the appellant made the calls because of the intense pressure which the police surveillance had imposed on him. On 17 March 2006 during the course of the Crown's opening address, the prosecutor said: “The Crown case is that during those five days between 21 and 25 May 1997, the accused, Bruce Burrell, was under intense pressure. Not only did he have a large contingent of police encamped within view of his house, not only did he realise that he was under surveillance whenever he left and came back to the house, not only did he know that they were swarming over Hillydale, but there was a large contingent of the media camped just outside the front gate at Hillydale. Not only that, but there was extensive media publicity about this police search and about him.

When interviewed as to the events of 6 May 1997 the appellant said that he was at Hillydale on his property.
Kevin and Beryl Cooper were the appellant’s closest neighbours. Mr Cooper was affiliated with a group called Landcare which amongst other pursuits replanted areas of old land with pine tree growth. His son Neil was a forester who undertook work for the organisation. At some time prior to 6 May 1997, Mr Cooper and his son had organised for an inspection to take place at two properties near Bungonia to assess them for potential pine plantation. Before 6 May 1997 Mr Cooper also had in mind asking his son and colleague when they attended to take a quick look at the appellant’s property to assess whether a portion of it commonly referred to as the “Rabbit Ears” portion may be suitable for pine afforestation.
In his record of interview given on 21 May 1997 the appellant described himself as being at the farm on 6 May 1997 and “incapacitated” by his back problems. He said that his back pain had started on the day of his father’s birthday, 2 May 1997. He said that he rang the doctor, Dr Chris Harmon. Dr Harmon gave evidence that he had written a prescription for the anti-inflammatory drug Orudis which he had pinned on the door of his surgery but it had never been collected. The appellant also said that he had contacted Ms Robyn Doolan a physiotherapist.
Ms Doolan gave evidence. She said that the appellant contacted her at about 6.30 pm on 7 May 1997 while she was treating another patient. She was booked out for the next morning but agreed to fit him in before her first appointment at 8.30 am. At about 7.30 am on 8 May 1997 the appellant called her at home saying that he felt that he would be better off to “veg out” at home that day. He told her that he had some medication he could take.
It was known that the appellant was able to travel on 5 May 1997. On that day he went to town and banked a cheque and bought some alcohol from Mac’s Liquor in Goulburn.
Both Mr and Mrs Cooper saw the appellant on 4 May 1997 when he came to get some photocopying done. He declined their offer to sit down because he said he had back pain and wanted to stand. He also declined their offer of a beer. When asked what was the problem he responded that it was the sciatic nerve in his back. Both Mr and Mrs Cooper believed that the appellant was on that occasion in pain not just from what he told them but also how he looked.
It was the Crown case that the appellant had attempted to create a false alibi. It was contended that the appellant had a problem in relation to Mr and Mrs Cooper because of the arrangements which had been made to inspect his property. Although he could have contacted them by telephone or by two-way radio, the Crown said that his reason for visiting them on 4 May 1997 was to establish in their minds that he was suffering from back pain which would provide an explanation for why he would not be there on 6 May 1997 when the foresters came to look at “Rabbit Ears.”
The Crown elicited evidence from Dallas Bromley to the effect that the appellant had not suffered any serious back injury during the course of their marriage. Although from time to time he had a sore back, she did not ever observe it to be debilitating to the extent that he could not work. Although the appellant had claimed in a record of interview that his back pain had been sufficiently severe to require his wife to take him to a doctor in Sydney she denied that this had ever occurred. The Coopers
Mr and Mrs Cooper went onto the appellant’s property on 5 May 1997 to check “Rabbit Ears” themselves. Mrs Cooper gave evidence that on the evening of 5 May 1997 she left a message on the appellant’s telephone service indicating that she and her husband had gone in to have a look at “Rabbit Ears”. She was asked in chief whether there was any contact between her house and the appellant on 6 May 1997 and she said there was “contact in the morning, when Bruce called me back to let me know that he had received my message.” She was asked to indicate whether she could say it was a telephone call or UHF communication and she responded “After having thought about it before the last court appearance, I am definitely sure that it was a UHF call.” Her evidence was that the call was at about breakfast time, although that could have been at any time between 6.00 am and 8.00 am.
Mr Cooper gave evidence that he could not definitely recall having any direct contact by phone, radio or in person with the appellant on 6 May 1997. As far as he remembered it was his wife who had the contact which he recalled as occurring at about breakfast time.
The police intercepted a telephone call between Mr Cooper and the appellant made on 8 August 1997. The recording was tendered at the trial and its transcript read as follows: “BURRELL: Mate, just a quick question for you. Do you remember the day that, um – remember we were talking about putting in the pines over here up on that shaly stuff?

There was then some further conversation about the entry, and the appellant again requested that Mr Cooper keep it.
There was unequivocal evidence that 6 May 1997 was the day the foresters came to Bungonia. The Crown put to the Coopers that the only contact between their household and the appellant on 6 May 1997 was the “report back” telephone call from Kevin Cooper to the appellant after the inspection. The Crown suggested that during the phone call the appellant was attempting to manipulate Mr Cooper’s memory so that he could confirm meeting with the appellant on that day.
Through cross-examination of Mr Cooper, the Crown adduced evidence that in his statement to police of 13 August 1997 he said, “I think it was around this time we were going on to Bruce Burrell’s property, and, as normal, I would have tried to contact Bruce Burrell by UHF radio to let him know I was going on to his property with the forestry people.” He also said “I cannot recall if, on this occasion, I actually spoke to Bruce on the radio or not.” He agreed that in that statement there was no mention of any call from the appellant prior to the visit of his son on 6 May 1997. Items found at the appellant’s property
After Mrs Whelan disappeared the police concentrated enquiries on the appellant because of the information from Ms Minton-Taylor about his visit to Kurrajong three weeks previously. On 21 May 1997 a massive police search lasting five days was conducted of the appellant’s property “Hillydale”. The property was large and remote with extensive natural wilderness areas and precipitous cliffs. The site was apparently dotted with numerous disused mine shafts. No trace of Mrs Whelan was found and subsequent searches have also failed to reveal any trace of her. The typewriter
When police searched the appellant’s premises they found a Cannon QS100 personal typewriter. The typewriter, its daisy wheel and the typewriter ribbon were carefully examined by the Document Examination Unit of the NSW Police Service to which Detective David Williams was attached. He said that the Cannon QS100 typewriter found in the appellant’s house was an electric typewriter with a plastic daisy wheel to create letters. As such, it was difficult to make a specific finding that the particular typewriter did or did not create a particular letter, a finding more capable of being made with the older style typewriters with metal keys and more workable parts likely to have faults which would be discernible in the document in question. He contacted Cannon and ascertained that the model typewriter found at the appellant’s house was provided with a single daisy wheel called a Courier 10 daisy wheel. Detective Williams’ examinations led him to the view that a Cannon QS100 typewriter could have been used to type the ransom note but that the note was not capable of having been created with the Courier 10 daisy wheel. An Orator 10 daisy wheel could have been inserted into the appellant’s typewriter to type the ransom note. The ransom note could also have been created by a completely different type of typewriter. Examination of the typewriter ribbon also indicated that it had been used for typing with a Courier 10 daisy wheel and not an Orator 10. The appellant’s vehicles
The police also found two motor vehicles at the property: the appellant’s dark green 2-door Pajero 4WD of the same kind as that seen in the security camera at the Parkroyal Hotel on the morning of 6 May 1997; and the Jaguar in which the appellant had turned up at Kurrajong on 16 April 1997. DNA and a search of the property
The police examined both of the motor vehicles in the appellant’s possession. They were examined for traces of hair or of DNA which would not have been observable to the naked eye. The evidence was that the Pajero was dusty, the interior of it being dirty. Notwithstanding the fact that the interior contained a large number of hairs and it was otherwise dirty, no relevant evidence was found. None of the hairs which were analysed demonstrated any connection with Mrs Whelan.
An intense and extensive search was conducted of the Hillydale property and surrounding areas. No trace of Mrs Whelan was located. The “dot point” notes
The police found two notes, described as “dot point” notes in the appellant’s handwriting. The Crown case was that the first note was consistent with being an early outline of a kidnapping plan. The first note, and the Crown’s suggested interpretation of it, was as follows: collection [of the victim]; advertisement [of Bernard Whelan of the kidnapping and ransom demand]; waiting [while the money is obtained by Bernard Whelan]; how to proceed [in handing over the money]; pick up [of the money] cover all [of his tracks].
The Crown submitted that a second “dot point” note which was found was also consistent with being an early outline of a ransom letter and bore many similarities to the ransom letter received by Mr Whelan. The second note, and its suggested interpretation, was as follows: has been K [kidnapped]; no P [police]; letter within 2 days [informing Mr Whelan how to hand over the ransom]; nothing until received [a doing nothing until the money is received] stress “2” [no police].
The Crown submitted that the similarity between the dot points and the ransom letter was stark. It was submitted that the ransom letter had the following structure: Kerry Whelan is safely in our hands [collection; has been kidnapped]; you must at no time notify the police or the press or anyone else [no police]; the ransom is US million dollars and you have 7 days to get the money together [waiting], then place an advertisement in the Telegraph [you will be advised within 3 days] [letter within 2 days] how to hand over the money [how to proceed]; any sign of outside involvement will result in Mrs Whelan’s death [nothing until received; stress no police]

The police also found: an almost empty bottle of chloroform which was found in a locked gun cabinet located in a walk-in wardrobe. The appellant had purchased it one to three years earlier from a pharmacy at Maroubra. The appellant alleged when interviewed that he obtained the chloroform to remove a stain on an enamel heater caused when he placed some clothing on it. His wife (Dallas) confirmed the staining but denied seeing chloroform or speaking with her husband about it. a UBD street directory found in the Jaguar. On two pages in the directory (maps 51 and 61) which covered the area between Phillip Street, Parramatta and Crown Equipment’s premises at Smithfield, the exact location of the Parkroyal Hotel in Phillip Street, Parramatta was highlighted and the address of the Parkroyal Hotel was written in highlighter pen. Also highlighted was the route from the Parkroyal Hotel towards the premises of Crown Equipment in Smithfield, as far as the intersection of Warren Road and Long Street which is the turn off on the nearest main road to Crown’s premises. It was the Crown case that these markings on the street directory were consistent with the appellant planning to pick up Mrs Whelan from the hotel in Phillip Street and drive her towards Crown Equipment in Smithfield. It was submitted that it was a coincidence of significance that the highlighting in the directory focused on the location from which Mrs Whelan disappeared. The highlighting also showed two deviations not printed on the map, because they were changes that had been made to the road after the map had been printed. It was the Crown case that these deviations and the precise marking where the Parkroyal Hotel was in Phillip Street, showed that whoever did the highlighting had a profound knowledge of the roadway between Parramatta and Smithfield and a good knowledge of which block the hotel was in. The Crown case was that it was not consistent with the map being marked by the appellant to show the way to Parramatta because he did not know which way to go for a lunch with Mr Whelan. It was said to be consistent with the appellant marking the route of a planned abduction.
The defence case was that the appellant had been to the hotel previously with an employee of Crown Equipment. Accordingly, it was not surprising that the map was marked, the explanation for which was that the appellant had done this to assist his earlier travel to the hotel.
It was the Crown case that Mrs Whelan was picked up by the appellant from outside the Parkroyal Hotel in Phillip Street. It was submitted that she voluntarily entered the vehicle having arranged to meet the appellant there at 9.30 am. The Crown’s theory was that Mrs Whelan had reluctantly agreed to go with the appellant to her husband’s office at Crown Equipment to assist the appellant in his request for work. The Crown case was that the absence of any evidence of a forced abduction in the busy streets of Parramatta confirmed that Mrs Whelan must have voluntarily entered the motor vehicle. 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. Use of chloroform would minimise the opportunity for Mrs Whelan’s DNA to be deposited on the motor vehicle.
It was the Crown case that Mrs Whelan was not immediately subdued. Rather it was suggested that the appellant drove to a location between Phillip Street and Crown Equipment where there were no buildings within a radius of about 500 metres. It was at the time of her disappearance a large open area. It was also the area where the marking on the street directory finished and the Crown submitted that the appellant had carefully identified that area as being an appropriate place to stop and, using the chloroform, subdue Mrs Whelan.
The Crown case was that the highlighting in the UBD street directory was consistent with careful planning in advance as to how Mrs Whelan could be abducted without arousing attention and without creating evidence which could later be discovered. It was suggested to be the same kind of advanced planning as revealed by the two “dot point” notes. THE DEFENCE CASE
There were a number of matters directly addressed by the defence. I have provided below a summary of the defence position on important issues. The defence case in relation to the ransom letter
The defence emphasised during the course of the trial that typewriters of the type found at the appellant’s property were common. Furthermore, the defence emphasised that there was no forensic evidence such as finger print analysis to suggest that the appellant had in fact at any time changed the daisy wheel in his own typewriter from the standard Courier 10 with which it was supplied.
With respect to the notes which were found at the appellant’s property the defence emphasised that there were differences between the dot point lists and the ultimate letter. In particular the word “receive” was correctly spelled on the dot point list yet it was spelled “recieve” on the ransom letter. It was also suggested that the ransom letter’s request for notification by Mr Whelan of his phone number was not readily explicable if written by the appellant. The appellant obviously knew the number as he used it to telephone on 16 April 1997. Furthermore, it was emphasised that Mr Whelan was familiar with the appellant’s voice so that he could not feasibly be telephoned by the appellant in furtherance of a kidnapping.
The defence also emphasised that there was no apparent purpose in the appellant requesting the placement of the advertisement in the newspapers. If its purpose was to notify the sender of the letter, within the seven day time limit, that the money had been obtained there was no evidence on 11 May 1997 (when the appellant was under surveillance) that he left the house to buy a paper. Although on 12 May 1997 he was followed to Goulburn there was no suggestion that he was observed to buy a newspaper on that day. It was emphasised that there would be no need to place an advertisement if the author of the note simply expected that in precisely seven days the money would be available. The dot point notes – the defence argument
The appellant refused to answer any police questions with respect to the notes found in his house. At the trial, defence counsel offered alternative explanations for the notes to those suggested by the Crown. It was submitted that they were ambiguous and that “has been K” was capable of being a reference to Keane & Co as a client, the evidence being that the appellant undertook a number of contract jobs for that firm while his wife worked there. “No P” in that context could have meant something like “No payment up front.” It was further suggested that the note could have been a response to a concerned enquiry about something having been lost “Has been kept”, “no problems”, “letter within 2 days” to explain the same, meaning not to do anything until a letter has been received. It was also suggested that the letter “K” could stand for “key” or “key word” or “key player” or “key note”, “kicked”, “kind”, “kin or “known.” It was suggested the note could have related to a prospective client.
As to the second note it was suggested that it could have related to anything connected with the appellant’s work, farm endeavours or personal life. Being of a general nature the defence submitted that it was not unambiguously related to the ultimate ransom letter.
It was submitted that the notes could have been written as long ago as 1987 when Dallas Bromley started working for Derek Keane & Co. In the alternative it was also suggested that it could have been written at least as far back as 1988 if it was in fact written at Hillydale.
The suggestion that there was no sinister explanation for the notes was said to be reinforced by the fact that the appellant took no steps to destroy the documents, even though he became aware of police interest in him from the execution of a search warrant on 21 May 1997. The defence pointed out that he had a wood fire in his home and he was left alone by the police until the documents were seized on 25 May 1997, some four days after the execution of the initial warrant. The phone call of 23 May 1997 – the defence case
The defence relied on Ms Hill's evidence as to her starting time to draw the inference that the appellant must have been mistaken about making his first, unsuccessful, attempt to call his solicitor just after 9.00 am. It was submitted that it must have been shortly prior to 9.00 am. The appellant’s estimate of the successful call from the phone box outside the Empire Hotel, being about 20 minutes later than the first, would have placed him in the phone box at a time earlier than 9.21 am. This would have been earlier still if his estimate of about 20 minutes was even slightly inflated.
It was contended that Ms Hill's concession in cross-examination of the range of 9.00 am to 9.15 am being a safer estimate of the range of the second call was more reliable than the more limited "guessed estimate" in chief. The evidence of Sharon Shorrock would have supported the morning being quite slow, but within a normal range. The evidence of Jennifer Elliott, which Ms Hill was asked to assume the correctness of in re-examination, was said to be flawed in a number of respects. She was not spoken to about her phone contact with J C Walsh & Sons until 15 July 1997 - nearly two months after the call. The call she was referring to when she made her statement and gave her evidence was a call which was successful, in that she was able to speak to her solicitor Mark Walsh. She was having frequent contact with him at that time, and thought it could be that very day that she started ringing at an earlier time of about 9.30 am, because she had been trying later unsuccessfully. However the evidence of Emma Hill and Exhibit BZ made clear that Jennifer Elliott's call on the morning of 23 May 1997 was not put through to Mark Walsh. Accordingly, it was submitted that Ms Elliott was recalling the wrong occasion of phone contact when she made her statement on 15 July 1997.
Ms Hill agreed with the obvious propositions that no day was the same, some Fridays were more busy than others. Even in the busier period of 9 - 10 am there would be variations from day to day in terms of when there were bursts of calls coming in. The defence took issue with the Crown's attempt to estimate the timing of the appellant’s successful call. What was said to have been a more critical area to have pursued was the timing of the calls on either side of the appellant's. David Tyler did not know the time of the call and would not have recorded it. There was no evidence as to the length of the call. The first call of the day was from Ernest Ash to David Tyler, but there was no evidence as to when, after 9.00 am, that call came in or, for how long it lasted. Ernest Ash was not approached until 2000 (or perhaps 1998) but in any event is now deceased. The call after the appellant’s was from Don Elder, a Goulburn solicitor with an office across the road from JC Walsh & Sons. There was no suggestion that he has been questioned in relation to the timing of his call.
In essence, the defence case was that the suggestion that the appellant made an unsuccessful call from the Post Office public phone booth shortly before 9.00 am, then a successful call starting between about 9.10 am and 9.15 am, fitted in with the reliable evidence. It was emphasised that the appellant’s answers in his interview came too long after the event, and in connection with too mundane a series of events, to be treated as literally marking his movements to the minute. The timing suggested by the defence of his call to the solicitors from the Empire Hotel phone box, in light of the evidence relating to Walsh & Sons, was said to tie in perfectly with the contention as to the time by which the appellant must have departed the phone box to drive back to Hillydale and on to Mr Broadhead's. It was submitted that the time of his call was incapable of being firmly established. All that could be safely said was that the Crown did not produce evidence from which it could be said that the appellant's account of ringing his solicitor from the Empire Hotel phone box before returning home was untrue. The appellant’s estimate of the time in his interview may have been five or so minutes out, an error on which nothing turned. The Trip to Goulburn - the defence argument
It was submitted by the defence that it was important that no tests of travel times were conducted in 1997, Detective Superintendent Bray's exercise (29 minutes 28 seconds from front gate of Hillydale to Goulburn) being conducted shortly prior to the 2006 trial.
The contrast between the state of the road in 1997 and later times was said to be significant. Both Coopers gave evidence that the trip between their place and Hillydale is over better roads now than it was in 1997. Mr Cooper said that the present owners spent money on doing up Shepherds Hill, a steep hill which used to be badly washed out at the bottom. Detective Superintendent Bray timed the journey from the outermost gate of Hillydale (that is, the edge of the property) to the Coopers' front gate as 4 minutes 20 seconds. Mr Cooper initially said 3 minutes but agreed that after giving a 5 to 10 minute estimate last year, he subsequently tested it and found it to take 4½ minutes. Mrs Cooper said that in 1997 the road between her front gate and Hillydale was just all ruts and speed humps, whereas it has now been reformed and is a much quicker trip. She said it now takes her about 5 minutes to get from her front gate to Hillydale, depending on how many gates need to be opened.
Officer Hamilton's log was said to be demonstrably wrong in so far as it recorded the appellant's arrival back at 9.55 am and departure at 10.00 am. It was said that to arrive at Mr Broadhead's as the appellant did at 10.00 am sharp (or slightly earlier) would have necessitated leaving the homestead prior to 9.55 am. Accepting that the appellant was on the property for about 5 minutes, after his return, it was submitted that he must have arrived back even before the time of 9.51 am with which Officer Hamilton was prepared to agree as a time which would be rounded up by him to ‘9.55'.
The weather was also highlighted. Inspector Couch said, when describing the constraints in searching the property between 21 and 25 May 1997, that the climatic conditions were pretty horrendous. He complained of there being very heavy rain which made the roads, which were unsealed roads, quite difficult to manoeuvre. Exhibit 23 comprised documentation from the Bureau of Meteorology tendered by the defence. It showed that the heaviest period of rain during the five days of the search was in the 24 hours up to 9.00 am on 23 May 1997 (5 mm), and that there was more in the 24 hours which followed (0.8 mm). These measurements were taken at Inverary Park, Mr Broadhead's property. Mr Broadhead's stated recollection in re-examination of 23 May 1997 being a fine day was accordingly mistaken. Inspector Couch had said that on 21 May 1997 there was a bit of rain, but that it was not what they experienced over the next few days. Mr Cooper gave evidence that if a person was not in a 4WD, the road between his place and Hillydale back in 1997 was considerably affected by rain, in a negative way and the trip became a lot slower. The road between the Broadhead's property and Hillydale was unsealed.
Inspector Couch gave evidence that between 21 and 25 May 1997 the trip from Goulburn to Hillydale regularly took three-quarters of an hour to an hour. This was travelling directly from Goulburn to Bungonia to Hillydale, not the longer route via Marulan. He said there were a couple of kilometres to the homestead on entering the property; and accepted that on arrival at the property the gates were closed and the general rule was complied with: “if a gate is closed, you go through it and close it.”
The record showed that the call from the public phone booth outside the Empire Hotel to Crown Equipment commenced at 9.21:35 am, and had a duration of 48 seconds. It was terminated at 9.22:23 am. The Crown case was that in the next 35 or 37 minutes and just before 10.00 am, the appellant got back to his car, drove back to Hillydale, spent approximately 5 minutes there and then drove all the way back to the Broadhead’s. Detective Superintendent Bray's reconstruction indicated that from the front gate of Hillydale to the front gate of Mr Broadhead's property took him 5 minutes and 10 seconds. On 23 May 1997 the appellant had to come from the house, not the front gate, was travelling on the road, which was in a worse condition than at the time of the trial, and slowed appreciably by the wet conditions, and had to enter Mr Broadhead's gate and get half way up his driveway.
Kevin Cooper said that from his place to Goulburn he allowed 30 minutes. He agreed that if he, as someone with knowledge of the road, was in a good vehicle and "pushed it hard" he could get there in 25 minutes. Added to this time would be the trip from the phone box back across the road, through a shopping centre and out to the car in the car park (which Detective Superintendent Bray suggested would take a couple of minutes), and the distance from Mr Cooper’s to Hillydale. The evidence of Mr Broadhead was that although the utility was roadworthy it was not powerful, and was slower than an average vehicle.
Having regard to the time which was said to be required to make the necessary movements, the defence case was that the appellant could not have left the public phone box as late as 9.22:33 am. It was submitted that if he had left the box some minutes prior to the commencement of the call to Crown Equipment at 9.21 am this would have allowed time for a police officer who had seen him in the phone box to wait for his departure to the car park and then make the call. Inherent implausibility – the phone call to Crown Equipment
The defence submitted that there was an inherent implausibility in someone in the appellant's position making the call to Crown Equipment.
It was submitted that the evidence demonstrated that a large number of employees of Crown Equipment who were given the task of working on the reception desk and answering the phone knew the appellant, and would have been likely to recognise his voice. It was further submitted that the fact that there was no intercept on the Crown Equipment line was unusual in the circumstances, and although it was known to investigative police officers, it was unlikely to have been confidently assumed by someone in the position of the appellant if he was the kidnapper.
Balanced against these obvious risks, the defence contended that there was no point in the appellant making the call. It was said to be incredible that anyone would think that directing Mr Whelan to call off the police would result in that occurring. It was submitted that there was no need for him to have the police off the property - there was nothing incriminating on the property he needed to attend to. The police had apparently finished searching his house, although they were still coming each morning to search the land. It was submitted that it was not persuasive to suggest that he needed the police to go to make contact with Mr Whelan. When there was, on the Crown case, no surveillance of the appellant between 16 and 21 May 1997 the appellant made no contact with Mr Whelan. It was contended that there was no rational basis for urgency by 23 May 1997, some two and a half weeks after Mrs Whelan's disappearance.
Because it was so implausible that the person actually responsible for Mrs Whelan's abduction made the call, it was submitted that the Crown had resorted to the idea of a panicked mistake caused by the pressure of the police, surveillance, media presence at Hillydale and adverse media publications. However on the Crown case, he had stopped being surveilled a week prior to the call. Importantly, the defence said, that there was not a single piece of evidence to suggest that by the 23 May 1997 there was a large contingent of the media camped just outside the front gate at Hillydale, and extensive media publicity about the police search and about him.
The evidence indicated that at the time the search of Hillydale started, at 9.30 am on Wednesday 21 May 1997, there had been little media attention other than in a general way in relation to the disappearance of Mrs Whelan. According to the evidence of Detective Superintendent Bray, later that day there was a press conference held by the police at which her disappearance was disclosed. General stories in relation to her disappearance featured on some of the evening radio and television news on 21 May 1997 and were more extensively published from 22 May 1997.
The appellant’s sister, Debbie Burrell gave evidence that on Thursday, 22 May 1997 at her son's football training she heard about the disappearance of Kerry Whelan on the news. She went to Hillydale on Saturday, 24 May 1997 - a trip organised a week or two before then. When she arrived at Hillydale on that day there were police present, but no media representatives, and she did not hear anything about the media until a police officer came to speak to her brother and advise of the arrival of media personnel. Then on the Sunday the phone started ringing with callers, said by the appellant to be the media, which he complained about. After she returned to Sydney on Monday, 26 May 1997, there were constant references to her brother in the press, whereas she had seen none before she left on the 24 May 1997 for Hillydale.
Mr Allan Burrell, the appellant’s father, had also heard general publicity about the disappearance of Kerry Whelan but the first he heard of anything that was in any way connected with his son was a radio announcement early on the Sunday morning while Debbie was away [that is, 25 May 1997] that the police were searching a property in Bungonia.
The defence submission was that this evidence further undermined the Crown “panicked mistake” theory for the call, and additionally the reference in the call to the media was a mistake, not likely to be made by a person in the appellant's position (whereas it might have been made by a police officer not personally concerned about whether the appellant had been in the press, or alternatively prescient of the pending arrival to Hillydale of the media, which seemed to have eventuated on 24 May 1997). THE APPEAL Grounds One and Two
It is appropriate to consider these two grounds of appeal together. Ground one in the appeal was expressed in the following terms: (a) His Honour erred in failing to direct the jury there were three indispensable intermediate facts ( Shepherd v The Queen (1990) 170 CLR 573) which the jury would have to find beyond reasonable doubt before being able to convict the appellant being: (i) Kerry Whelan left the front of the Parkroyal Hotel by way of the Pajero 4WD seen in camera 7 at 9.38:45/46 on 6 May 1997; (ii) The terms of the two dot point notes have the meanings ascribed to them by the Crown theory; and (iii) The accused was in the phone booth outside the Empire Hotel in Goulburn at the time the subject call was made to Crown Equipment at 9.21 am on 23 May 1997;

Ground 2 was expressed in the following terms: His Honour erred in directing the jury that counsel for the appellant was incorrect at law when referring to the Crown case being left to the jury upon three major bodies of evidence and that counsel said the Crown case in this regard was that the jury could find the appellant guilty on the basis of any one, two or all three of those in combination.
The appellant submitted that the principle to be applied in the circumstances of this case was established in Chamberlain v The Queen (1983) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573 being that “whilst a jury may draw inferences from facts not proved beyond reasonable doubt, if a conclusion of fact is an indispensable intermediate step in the reasoning process, that conclusion must be established beyond reasonable doubt.” Particular reliance was placed on the observations of Deane J in Chamberlain at 627: “Whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt will, however, otherwise depend not only on the nature of the fact but on the process by which an individual juryman sees fit to reach his conclusion on the ultimate question of guilt or innocence. If, for example, the case against an accused is contingent upon each of four matters being proved against him, it is obvious that each of those matters must be proved beyond reasonable doubt. Indeed, it would be appropriate for the presiding judge to emphasise to the jury in such a case that even a minimal doubt about the existence of each of those matters would be greatly magnified in the combination of all. On the other hand, if the guilt of an accused would be established by, or a particular inference against an accused could be drawn from, the existence of any one of two hundred different matters, each of which had been proved on the balance of probabilities, it would be absurd to require that a jury should disregard each of them unless satisfied either in isolation or in the context of all of the facts, that any particular one of these matters had been proved beyond reasonable doubt.”
During the trial three apparently disparate bodies of evidence pointing to the guilt of the appellant were identified. I have examined them above. They were the evidence relating to the sighting of Mrs Whelan and the Pajero 4WD resembling the appellant’s at the Parkroyal Hotel on 6 May 1997; the evidence with respect to the two “dot point” notes and the phone call allegedly made by the appellant from a public phone booth outside the Empire Hotel in Goulburn on 23 May 1997.
It was debated during the trial whether, if proved beyond reasonable doubt, proof of any one or of a combination of these factual matters would be sufficient to convict the appellant. The defence case was that the three matters were indispensable intermediate facts which the jury would have to find beyond reasonable doubt before being able to convict the appellant. In the alternative it was submitted that, at the least, before the appellant could be convicted the jury would have to be satisfied beyond reasonable doubt of the events relating to the Pajero at the Parkroyal Hotel.
The position was arguably complicated by the way in which the Crown put the prosecution case to the jury. In the course of his closing address the prosecutor identified the fact that the jury had been provided with “three completely independent bodies of evidence.” He said to the jury: “If you are satisfied in relation to the Pajero evidence; namely, that it was the accused’s Pajero outside the Parkroyal Hotel, that is the end of the matter. You would have to convict him, because there is no other explanation for his vehicle outside the Parkroyal Hotel. Finished.

The appellant complained to this Court that his Honour did not direct the jury that, if they were contemplating convicting the appellant having regard to any one of the three independent bodies of evidence, a finding beyond reasonable doubt with respect to that area of evidence was required. Intermediate Facts
I have already detailed the factual elements of the Crown case and will not repeat them in detail. However, it will be apparent that it extended beyond the three bodies of evidence which have been identified. The evidence commenced with the phone call the appellant made to Mr Whelan on 7 April 1997 and for which there was no apparent explanation. It was followed by the visit to the Kurrajong property which was itself curious. The appellant’s retreat from Kurrajong to North Richmond to make a phone call from a public phone, rather than use his mobile phone (which he untruthfully denied having on that day) was capable of a sinister interpretation, although this was denied by the defence who said it was explained by poor mobile reception in the location.
There were a number of events for which there was no explanation. In particular the comment of Mrs Whelan “why did he do this to me?” overhead by Ms Minton-Taylor after the appellant left on 16 April 1997 is unexplained. Her diary entry for 6 May 1997 showing an appointment at 9.30 am without an identified purpose and her incorrect explanation to her husband that she was going for a consultation about a skin condition contribute to a matrix of events which were unexplained.
Beyond the three bodies of evidence, there was also the evidence of motive provided by the appellant’s desire for money and his increasingly, apparently irrational, pursuit of it. The form of the ransom demand (apart from the evidence of the dot point notes) point significantly towards the kidnapper as having in mind to abduct Mrs Whelan on an occasion prior to 6 May 1997. That fact together with the evidence of the unusual circumstances of the visit to the Kurrajong property on 16 April 1997 point strongly towards the appellant having decided to kidnap Mrs Whelan on that day. That conclusion is supported by the evidence that the appellant had obtained information about Mr Whelan’s movements during the conversation with him on 7 April 1997, making it likely that Mrs Whelan would be at home alone on 16 April 1997.
The video evidence relating to the Pajero and Mrs Whelan’s movements would not persuade me beyond reasonable doubt of the appellant’s guilt. Nevertheless it makes a significant contribution to the overall matrix. Whether the Pajero, which can be seen in the earlier video, was the appellant’s, there is no doubt that Mrs Whelan arrived at the Parkroyal Hotel at 9.35 am, parked her car in the car park and left by the car park entry ramp. I have already indicated that the suggestion of the defence that on leaving the ramp she turned left was entirely contrary to her identifiable path which took her up the right hand ramp close to the right hand kerb. She gave no indication that she intended to turn left and would be likely to have already moved in that direction if that had been her intention. She either crossed Phillip Street or turned right when leaving the car park. If she did the latter she would have walked towards where, on the video evidence, the appellant’s Pajero could have been parked. At a time which was consistent with her having entered the appellant’s vehicle a Pajero, which could be the appellant’s, was recorded as moving past the hotel.
There was further circumstantial evidence. When the police searched the appellant’s property, he was found to possess an almost empty bottle of chloroform which could have been used to subdue Mrs Whelan. Although explained as being acquired for a cleaning task, to my mind this account is not convincing. The appellant’s former wife was not aware of chloroform having been acquired for any purpose, much less for cleaning. Indispensable Intermediate Facts
In Chamberlain the High Court considered, inter alia, the correct approach to findings of fact in a circumstantial case – do they have to be proved beyond reasonable doubt? The remarks of Gibbs CJ and Mason J on that matter have been recognised as being unclear. However, in Shepherd Mason CJ made plain that only an intermediate fact, which is an essential or indispensable step toward a finding of guilt, required proof beyond reasonable doubt (p 576).
The position was authoritatively stated by Dawson J in the following passage (Shepherd pp 579-580) : “As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact -- every piece of evidence -- relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.

In the present case there was, as I have demonstrated, a body of evidence from which the jury could conclude that the appellant abducted and killed Mrs Whelan. No one piece of evidence, or, even a discrete body of evidence, required acceptance before the jury could reach that conclusion. The jury did not have to be satisfied that Mrs Whelan was abducted in accordance with the Crown’s view of the events on 6 May 1997. It could have occurred in some other manner later that day. Nor would they have to be satisfied beyond reasonable doubt that the “dot point” notes were the appellant’s notes made in preparation for a ransom letter or that the appellant made the phone call on 23 May 1997. All that was required, as his Honour told the jury, was that having regard to the whole of the evidence they were satisfied of his guilt to the relevant standard.
The trial judge concluded that it was necessary for the jury to be satisfied that Mrs Whelan had been abducted before 3.45 pm when she was due to meet her husband. This, of course, followed from a finding that her abduction explained her failure to meet Mr Whelan as they had previously arranged. However, the time of the abduction was not otherwise essential to the proof of the Crown case. As I have indicated, to my mind it was not an essential element of the Crown case that the appellant left the Parkroyal Hotel with Mrs Whelan on the morning of 6 May 1997. If the jury found that this occurred it would have significantly fortified the Crown case but, it was not an essential intermediate fact which required proof beyond reasonable doubt. If she had been kidnapped at some other time and from some other place that day the combination of other incriminating circumstances was such that the jury could have been satisfied of the appellant’s guilt to the requisite standard.
With respect to ground 2 there is, in my opinion, no substance in that ground. Although as I have identified the Crown submitted that there were three bodies of evidence of significant probative force, the Crown case was not confined to that evidence and the prosecutor addressed the jury with respect to the whole of the relevant evidence. His Honour’s directions, in my view correctly, reminded the jury that they were not restricted to any piece or body of evidence and could take into account every piece of evidence capable of bearing upon their decision.
I would reject grounds 1 and 2 of the appeal. Ground 3: His Honour erred in directing the jury that any finding the jury might make that the police investigation was inadequate was not capable of weakening the Crown case.

These grounds were dealt with together by counsel for the appellant. It is convenient for me to make some general comments before turning to each ground specifically. At the heart of these four grounds of appeal is the contention that the police investigation that led to the arrest and prosecution of the appellant was inadequate, and as a result of this inadequacy there are reasonable hypotheses consistent with innocence that have not been excluded. In particular, it was argued that the Crown has not excluded the reasonable possibility that the disappearance of Mrs Whelan was effected by Mr Whelan or a person or persons unknown. It was also argued that the police investigation was biased and that this bias makes it more likely that the phone call made to Crown Equipment from outside the Empire Hotel on 23 May 1997 was in fact made by a police officer. It was contended that Barr J made a number of errors in relation to these issues.
The Crown case was entirely circumstantial. In Barca v The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ said of such a case: “When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused:’ Peacock v The King [(1911) 13 CLR 619 at 634]. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw;’ Plomp v The Queen [(1963) 110 CLR 234 at 252] ; see also Thomas v The Queen [(1960) 102 CLR 584 at 605-606]. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ ( Peacock v The King [(1911) 13 CLR 619 at 661]). These principles are well settled in Australia.”
In De Gruchy (2000) 110 A Crim R 271, the appellant was convicted of murdering his mother, brother and sister. Two years after the offence there were two violent murders in the same general locality. A man, Van Krevel, had confessed to these two latter crimes. At his trial the appellant had sought to subpoena police documents and to cross-examine police witnesses in relation to the investigations into the Van Krevel murders, as well as in relation to murders in the Wollongong area generally. The contention was that this evidence would give rise to a reasonable possibility that someone other than the appellant had murdered his mother, brother and sister. At 281-282 Wood CJ at CL (Sully J and Simpson J agreeing) said: “In the present instance the documents sought, and the line of cross-examination involved in my view, nothing more than a fishing expedition. The Arkell and O’Hearn murders occurred in June 1998, more than two years after the killings with which the appellant was charged, and his Honour, after examining the documents, saw no common modus operandi or anything in the way of physical evidence or otherwise that might link Van Krevel with the events at the De Gruchy home. Moreover, there had been no admissions by him concerning those events, whereas he had come forward to confess in relation to the Arkell and O’Hearn killings…

As Callinan J makes plain an accused may not be able to legitimately complain about the quality of an investigation . Where the evidence against an accused is strong, the fact that it may have resulted from an incomplete investigation may not affect the strength of the Crown case.
The appellant submitted that the quality of the police investigation has particular significance in a circumstantial case. It was submitted that when the Crown can only succeed by excluding all reasonable hypotheses consistent with innocence, an inadequate police investigation weakens the Crown case because, without further or proper investigations into any available alternative hypotheses, the Crown cannot exclude them as reasonable possibilities.
The argument confuses the role of investigating police and the task of the jury. The question for the jury is whether the whole of the evidence at trial proves to their satisfaction and beyond reasonable doubt that the accused committed the crime. The jury must not speculate as to any matter which a more thorough police investigation might have revealed. Evidence of an inadequate police investigation is not in itself evidence of a reasonable possibility consistent with innocence. Such evidence does not itself weaken the Crown case. This is the essence of what Sully J told the jury in the direction that was the subject of the appeal in R v Galea [2004] NSWCCA 227. This Court did not disapprove of that direction, and for similar reasons I conclude that Barr J made no error by giving the direction that he gave in the instant case. In giving that direction, Barr J correctly and carefully told the jury that they could consider whether any alternative hypotheses “merited further investigation.” The correct approach was stated by Gibbs, Stephen and Mason JJ in Barca v The Queen (1975) 133 CLR 82 at 105: “However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.”
The appellant submitted that “if a jury is restricted to consider only enquiries that the police considered appropriate then in the absence of an admission by the police that they had made an error, a jury will be confined in effect to the opinions of the police.” The short answer to this is that the jury is asked to consider the evidence.
Evidence of any inadequacy in a police investigation may be of greater significance if it has a direct bearing upon the cogency of the evidence that is before the court, such as where the evidence impugns the credibility of police witnesses or reveals that proper procedures were not followed when an eyewitness positively identified a suspect. In the present case it was contended that the police investigation was biased, and that this weakened the Crown case because it made it more likely that the phone call made to Crown Equipment from outside the Empire Hotel on 23 May 1997 was made by a police officer, rather than the appellant. Even if there was substance to the submission, and in my view the evidence does not support it, it does not follow that his Honour erred in his summing up. His Honour was careful to draw a distinction between the adequacy of the police investigation and its propriety. After giving the directions set out above about the relevance of the adequacy or otherwise of the police investigation, his Honour continued: “It is for you to decide whether the police investigation stopped short of a proper investigation, whether you think the police closed their minds too early.

In these circumstances, it would have been plain to the jury that if they thought that it was reasonably possible that someone other than the named persons who his Honour had mentioned in his summing up was responsible for the offences alleged against the accused, then the Crown had not made out its case.
I do not accept the appellant’s submission that the Crown’s failure to make inquiries or adduce evidence directed towards excluding the possibility that an international organisation was responsible for the crime constituted a reversal of the onus of proof. Neither the Crown nor the appellant were required to adduce evidence in relation to this issue. The jury was entitled to find on the evidence available to it that this was not a reasonable alternative hypothesis.
Given that the possibility that the offence had been carried out by a person or persons unknown had been given such little attention by the defence, and given that defence counsel did not object to the omission of this scenario in the summing up, I am satisfied that it was not an issue at the trial. I would refuse leave under r 4. Grounds 5 and 6
It is convenient to deal with these grounds together. They concern a number of different police “running sheets.” The submissions in some respects were beyond the grounds as stated.
I will deal first with the “running sheets” concerning June Parkinson and Maureen Shaw. The appellant submitted that the information contained in these “running sheets” was relevant and admissible. The evidence of June Parkinson was summarised by Barr J as follows (R v Burrell (unreported, NSWSC, 23 March 2006) at [3]): “Broadly, the evidence would be of assertions by Mrs Parkinson of events that took place in 1982 or 1983 when she was employed by Bernard Whelan to assist Mrs Kerry Whelan at about the time of the birth of their first child and during which she, Mrs Parkinson, befriends the former wife of Mr Whelan, Mrs Helen Whelan. It appears that Mrs Helen Whelan was ill, alcoholic, and in need of medical treatment and domestic help. She was living in premises other than the premises in which Mr Bernard Whelan and Mrs Kerry Whelan were living. It appears that Mrs Parkinson, having befriended Mrs Helen Whelan, took her side in negotiations that were going on between the former married partners in an effort to reach a family settlement. It fairly appears from the statements that Mrs Parkinson is a very much disaffected former employee of Mr Whelan and ready to make serious criticisms of Mr Whelan, Mrs Kerry Whelan, and others without asserting any or much factual basis for her opinion.”
Mrs Parkinson also alleged that Kerry Whelan had told her that she was insured by Crown Equipment for one million dollars. The “running sheets” containing the assertions set out above were excluded by the trial judge under s 135 of the Evidence Act (R v Burrell (unreported, NSWSC, 23 March 2006)). An attempt to tender a statement from Mrs Parkinson on the basis that she was unavailable for the purposes of s 65 of the Evidence Act was refused by his Honour because of the appellant’s failure to comply with the notice requirements in s 67 (R v Burrell (unreported, NSWCCA, 11 May 2006).
The evidence of Mrs Shaw related to events that happened in Victoria when she was Mr Whelan’s secretary, thirty years before Mrs Whelan’s disappearance. The gist of the evidence was that Mr Whelan had criminal contacts and that he had offered to arrange for one of these contacts to deal violently with Mrs Shaw’s ex-husband. Mrs Shaw said that Mr Whelan’s father had been a policeman and that he was the contact between Mr Whelan and the criminal underworld. Mr Whelan’s father had never in fact been a police officer. Mrs Shaw indicated that she would not give this evidence in court. His Honour was of the view that it would be unfair to the Crown to admit the evidence.
The appellant submitted that the “running sheets” were admissible for two reasons: firstly, to show that the police investigation was inadequate because it did not pursue the possibility that Mr Whelan or his criminal contacts had been involved in Mrs Whelan’s disappearance; and, secondly, as proof of the contents of the “running sheets”, which the appellant argues raised a reasonable possibility consistent with the appellant’s innocence.
The appellant relied on R v Cakovski (2004) 149 A Crim R 21. In that case the appellant was convicted of murder. At his trial he had raised self-defence, alleging that the deceased had threatened to kill him. The deceased had been convicted of murdering three people in 1978. The appellant was not aware of this at the time. The trial judge refused to admit evidence of the murders because the events in question were too remote in time to have significant probative value (s 135). The trial judge also restricted the cross-examination of Mr Logounov, so that the defence could not seek to elicit the fact that the deceased had referred to the three earlier homicides when a few hours prior to his death he had assaulted and threatened to kill Mr Logounov. The conviction was overturned on appeal. It was held (at 30) that the evidence “…had significant probative value, in this way. In the absence of that evidence, the appellant’s evidence that the deceased threatened to kill him in such a way as to make him fearful for his life, and continued to make such threats and to attack him notwithstanding the appellant’s use of a knife, seems on the face of it highly improbable. In my opinion, it becomes less so once one knows that the deceased had committed three murders in the circumstances outlined, albeit as long ago as 1978, and also had made reference to those three murders in uttering a threat to kill Mr Logounov just a few hours before.”
A majority of the Court were of the view that the evidence was only admissible for this reason. It probably would not have been admissible as tendency evidence (Hodgson JA at 30-31; Hulme J at 35).
Barr J distinguished Cakovski on the basis that it was not in dispute that the deceased in that case had been convicted of murder. In dealing with Cakovski in the context of Mrs Parkinson’s evidence, Barr J said (R v Burrell (unreported, NSWSC, 23 March 2006) at [7]-[8]: “The facts of that case were different from the present, of course, but Mr Dalton sought to draw comfort from the decision which was to the effect that a trial judge had erred in rejecting evidence of the deceased’s conviction, some 23 years before the events giving rise to the charge, of three counts of murder. In that case, the defence was one of self-defence and the appellant relied, in part, upon an asserted threat by the deceased that he would kill him, the appellant. The fact that the deceased had killed three times before, even though so long ago, was held to be relevant to the probability that the deceased made the threat to kill, asserted and relied upon by the appellant.

In relation to Mrs Shaw’s evidence, his Honour said in the first trial that it would be unfair to require the Crown to respond to assertions about events that allegedly occurred in Victoria in 1967, and that “even if the topic was able to be raised, any evidence likely to come forward would be, in view of the time which has elapsed, of the most tenuous kind. I think that it would have no probative value.”
I agree with Barr J’s assessment of the evidence. It was within his Honour’s discretion to admit or reject it and the appellant has not demonstrated any error in the exercise of that discretion. The evidence was apparently hearsay, was stale and had very little probative value.
In my view, it could not have been admitted under s 97 as tendency evidence. In this regard Hulme J’s observation in Cakovski (at 35) that “so removed in time were they [i.e. the murders and the instant offence] that I very much doubt if it would even have been possible to infer from events in 1978 what tendency the deceased may have had in 2001” is apposite. Having regard to the significant danger that the evidence would result in unfair prejudice to the Crown, even if it was admissible as tendency evidence, it ought to have been excluded under s 135. Given the length of time between the events alleged in the running sheets and the offences with which the appellant was charged, the evidence would not have been relevant to the adequacy of the police investigation. The fact that the police had gathered this information at all indicates that their investigations had taken them a considerable distance into Mr Whelan’s past. The fact that they did not pursue the assertions was of no probative value.
The only other relevance that the evidence of Mrs Parkinson could have had was to establish that, contrary to Mr Whelan’s evidence, he was in fact aware that Mrs Whelan was insured for one million dollars by Crown Equipment. Given that this evidence was second or third-hand hearsay, and in light of Barr J’s assessment of Mrs Parkinson as “a very much disaffected former employee of Mr Whelan and ready to make serious criticisms of Mr Whelan, Mrs Kerry Whelan, and others without asserting any or much factual basis for her opinion,” his Honour was bound to reject the “running sheet” as proof of the truth of her assertions.
The other “running sheets” can be dealt with shortly. In his summing up Barr J said: “There was an enormous amount of cross-examination of Detective Superintendent Bray about the police investigation. I cannot begin to detail the various reports recorded in the running sheet that were raised for his consideration. I will give you no more than an example or two.

The rest of the summing up that touched upon Mr Buckley’s evidence simply noted inconsistencies within his testimony that had been pointed out by the appellant. The appellant took an objection with respect to this aspect of the summing up, which his Honour corrected. No other objection was made in relation to the way Mr Buckley’s evidence was dealt with by his Honour.
In his submissions on this appeal, the appellant did not criticise his Honour’s summing up. The appellant was content to merely reiterate the submission made in the earlier proceedings that the probative value of the evidence was outweighed by the danger of unfair prejudice, and so it ought to have been excluded under s 137.
I do not accept this submission. The evidence was of probative value in relation to the matter of motive. The availability of other evidence of financial hardship did not in any way reduce that value. I accept that the conduct of the appellant disclosed by the evidence was not favourable to him and suggested an intemperate personality. Although not evidence of the commission of a crime, a criminal act was contemplated. However, it was plainly evidence which was probative of the appellant’s urgent desire to obtain funds. This case is quite different to a case such as R v Cook [2004] NSWCCA 52, where this Court held that evidence of flight ought to have been excluded under s 137 because the only response the appellant could have made to the evidence was to admit to prior convictions that had “a disturbingly close relationship to the offence with which he was charged” ([48]). The danger of prejudice arose from the potential for the jury to use the evidence as adverse to the appellant’s character or as tendency evidence. Although the trial judge did not specifically direct the jury that the evidence was not to be used for such a purpose, his Honour’s discussion of Mr Buckley’s evidence in the summing up was entirely confined to the context of motive, to which the evidence was highly relevant. In these circumstances there was no real danger that the jury would use the evidence in an impermissible and unfair way. If there had been, trial counsel would undoubtedly have brought the judge’s attention to this possibility. Apart from counsel accepting that there was no need for any further direction, if he had done so, the effect would have been to emphasise the significance of the evidence elevating its importance in the mind of the jury. There were sound forensic reasons to be satisfied that, confined to matters of motive, the directions given were appropriate.
I reject this ground of appeal. Ground 7(b): The voice ‘similarity’ evidence given by Mrs Pemberton
This ground of appeal relates to the telephone call made to Crown Equipment on 23 May 1997. It was not disputed that whoever made that call must have had knowledge of the terms of the ransom note. The gist of the contested evidence is recorded in the judgment of Sully J (R v Burrell (unreported, NSWSC, 5 March 2001) at [71]-[74]): “What is in issue for present purposes is the admissibility of evidence proposed to be led from Mrs Pemberton, the receptionist who took the call, concerning the voice of the caller.

The Crown did not rely on this evidence as evidence of positive identification. The evidence was led merely as circumstantial evidence which, at its highest, was capable of establishing that the voice of the caller was similar to the appellant’s voice. Sully J held that the evidence was admissible on this basis, stating (at [76]) that “I consider that the giving at trial of proper directions will be sufficient to ensure that the jury will not give this evidence more than its true weight.” At [32] in his judgment of 21 September 2005, Barr J said in relation to this evidence: “This material is dealt with at paras 70-77 of the judgment of Sully J of 6 [sic – 5] March 2001. I agreed with his Honour’s reasoning and conclusion and decided to admit the evidence.”
The appellant relied on his submissions in earlier proceedings in relation to this ground of appeal. The appellant submitted that it was important that Mrs Pemberton did not say that the voices were “similar.” The argument, as I understand it, was that the fact that Mrs Pemberton had described the appellant’s voice as “close to,” rather than “similar” to, the voice of the caller gave rise to a significant danger that the jury would understand this as a positive identification rather than as evidence of similarity. It was submitted that since the evidence was of such low probative value in any event, it should have been excluded pursuant to s 137.
If there was a danger that the jury would use the evidence as positive identification evidence, then there was a danger that the jury would use the evidence in an unfairly prejudicial way. This much is clear from R v Pitkin (1995) 80 A Crim R 302, where the High Court quashed the accused’s convictions on the basis that evidence that the accused “looked like” the person who in fact committed the crime was not capable of positively identifying the accused as the offender. However, as Sully J noted in his judgment of 5 March 2001, in the present case any prejudice could have been remedied by appropriate directions. In my view Barr J’s directions on this issue were entirely appropriate. At 308-309 in the summing up his Honour said: “There was evidence in relation to the telephone call from the Empire Hotel phone box from Mrs Pemberton of Crown Equipment. You remember that she listened to seven audio tapes. One of them was undoubtedly a tape of the accused’s voice; it was taken from one of the answers that you see in one of the interviews. Six other tapes were made by police officers. You will remember Mrs Pemberton told you that she was asked to pick out the voice, if she heard it. I do not remember precisely now what she was asked, but her response was to say, to pick out two voices as the closest and to rate them as equal at 6 on a scale of 10, and that must have been a scale of likeness. I do not want you to be misled by this evidence. I directed you before on the evidence of Mrs Lambert and Mrs Woods and I told you that that was identification evidence and I gave you a special warning about it. I want you to understand that the evidence of Miss [sic] Pemberton is not identification evidence. She does not say ‘that was the accused who was the man who was speaking to me.’ She does not say ‘the voice on that tape is the voice that spoke to me in the telephone call.’ The Crown does not put it that high. It is not identification evidence.”
Earlier in their addresses, both the Crown and counsel for the appellant had referred to the evidence as evidence of similarity. In Gibson (1999) 110 A Crim R 180 the victim had given evidence of hearing someone say “I’m going to kill you.” Initially the victim had said that the voice sounded like the accused’s voice, but in cross-examination he said that he was unsure. The accused was convicted of robbery with violence. At 187, Adams J (Spigelman CJ and Studdert J agreeing) said: “To my mind this question was in substance left to the jury as a matter to which they would give only a little, if any, weight in their considerations. It was clearly not evidence of identification of the appellant and no suggestion was made by the learned trial judge that it was capable of being so used. In my view, this suffices to distinguish this case from Pitkin …”
In the present case, not only was there no suggestion that the evidence could be used as evidence of positive identification, but the trial judge carefully directed the jury that it could not be so used. If the evidence ever gave rise to any danger of unfair prejudice, it was cured by these directions.
I do not attach any significance to the fact that Mrs Pemberton described the accused’s voice as “closest” (counsel submitted “close to”) rather than “similar to” the voice of the caller. To the extent that the words “closest” or “close to” are capable of indicating a positive identification rather than a similarity, this possibility was entirely negated by Mrs Pemberton’s evidence that the caller’s voice had been huskier than the accused’s voice and that the likeness between the two voices was only six out of ten. The suggestion that the evidence would have been understood by the jury as a positive identification was made even more unlikely by the fact that at the time of the “identification” Mrs Pemberton had selected the voice of a police officer as being equally comparable to the voice of the caller.
It is clear that the evidence was of only slight probative value. So much was recognised by the Crown in its submissions. However, given that any danger of unfair prejudice could be (and was) removed by appropriate directions, there was no reason to exclude it. It has been said more than once in this Court that in applying s 137 of the Evidence Act, a trial judge can and should consider any warnings or directions he or she may give to ensure that unfair prejudice does not arise (see eg R v Em [2003] NSWCCA 374 at [121]). That is precisely what occurred in this case.
This ground of appeal fails. Ground 8: His Honour erred in permitting further cross-examination by the Crown, pursuant to s 38 of the Evidence Act , after cross-examination by the defence had concluded, of Norman Elliott, Frances Carter and Alan Burrell.
This ground relates to his Honour’s decision to grant leave to the Crown pursuant to s 38 of the Evidence Act to cross-examine three witnesses, which it called: Norman Elliott, Frances Carter and Alan Burrell. Each witness gave evidence when cross-examined by the defence which was unfavourable to the Crown case. Norman Elliott
Mr Elliott was one of the witnesses who gave allegedly “false sighting” evidence, as I have described elsewhere in my summary of the Crown case. When examined in chief, Mr Elliott said that on the morning of 6 May 1997 he entered the Parkroyal Hotel via the main revolving door entrance in the front lobby to use the toilets close by. He said that as he walked across the frontage of the hotel towards the main revolving door entrance, he looked towards the right and saw a lady, who he thought was Mrs Whelan, and a man coming out of the carpark ramp. Mr Elliott recalled that as the man walked out of the carpark ramp he saw him move from the right to the left in front of the lady. He said that the man was a white Caucasian.
The Crown referred to the previous trial of the appellant in 2005 when Mr Elliott had also given evidence. On that occasion the Crown also called Mr Shah, who it could positively be established was the man who exited the carpark at the same time as Mrs Whelan. He was of “Indian-type” origin. Although it was apparent that Mr Shah did not match the description of the man Mr Elliott remembered seeing, he maintained that his recollection of seeing the man, who exited the carpark ramp with Mrs Whelan, was correct. Later in his evidence in chief, the Crown played to him a video with footage from the hotel security cameras. The footage of the front lobby did not show Mr Elliott entering the hotel at the time he said he did. Nor was there any sign of him in the footage of the corridor outside the toilet at the time he said he went to the toilet. The footage also showed that the man Mr Elliott saw coming out of the carpark ramp was not in front of Mrs Whelan, as he said he was, but was behind her. These matters suggested that Mr Elliott may not have seen Mrs Whelan or Mr Shah walking out of the hotel carpark ramp on the morning of 6 May 1997.
When cross-examined by the defence, Mr Elliott agreed that it was possible that he could have entered the hotel via the entrance east of the main revolving door entrance in the front lobby. This may explain why he was not seen on the security camera footage of the front lobby. He also accepted that his recollection of Mr Shah’s position relative to Mrs Whelan as they both exited the carpark ramp and his recollection of Mr Shah’s build and complexion were not correct.
In light of this evidence, the trial judge granted leave to the Crown, under s 38, to cross-examine Mr Elliott after he had been cross-examined by the defence in relation to his movements that morning and his concession that his recollection in relation to Mr Shah was not correct. Frances Carter
Mrs Carter was another witness who gave allegedly “false sighting” evidence.
During her evidence in chief, Mrs Carter confirmed her first written statement of 3 June 1997 to the police where she said that the woman she saw on 6 May 1997 was “possibly” Mrs Whelan. When cross-examined by the defence, she stated that the woman was “definitely” Mrs Whelan. The Crown was granted leave to cross-examine her about this evidence. Alan Burrell
Mr Alan Burrell is the appellant’s father. He gave important evidence in relation to the appellant’s movements in April 1997.
During his evidence in chief, Mr Burrell initially said that the appellant had stayed over at his home for 3 days and 2 nights. He said that the appellant arrived at his place on Tuesday 15 April 1997, stayed Tuesday night and Wednesday night and left on the Thursday. He said that he believed that the appellant was going to see Mr Whelan on the Wednesday, which, he agreed, was the second day of the appellant’s stay with him.
Later in his evidence in chief, the Crown took Mr Burrell to portions of the transcript of a conversation between Mr Burrell and his two daughters, Deborah and Tonya, on 11 July 1997, which the police had covertly recorded. Mr Burrell agreed that in that conversation, he said the 3 days of the appellant’s stay were Monday, Tuesday and Wednesday. He also agreed that he said to his daughters that on the Wednesday morning, being the third day, the appellant said, as he left Mr Burrell’s home, that he was going to the Whelan residence to see Mr Whelan about picking up some freelance advertising work. The Crown also took Mr Burrell to the transcript of an intercepted telephone conversation with his daughter, Tonya, on 19 June 1997. In that conversation he said that the appellant left his place on the third day and was going to see the Whelans to pick up some work.
When cross-examined, Mr Burrell agreed with a suggestion put to him that he was correct about Wednesday being the day the appellant visited the Whelans’ residence but was mistaken about it being the third day.
With leave of the court under s 38, the Crown was allowed to cross-examine Mr Burrell. The prosecutor emphasised that Mr Burrell had signed a statement on 19 June 1997, in which he indicated that the appellant had stayed at his home on Monday night and Tuesday night and visited the Whelans on the Wednesday, being the third day.
The Crown case proceeded on the basis that Mr Burrell’s evidence that the appellant was going to see Mr Whelan on the Wednesday was mistaken, but was correct about it being the third day. The defence, however, submited that Mr Burrell was correct about the Wednesday but mistaken about it being the third day of the appellant’s stay.
The Crown version of events suggests the appellant falsely told his father of his intention to travel to Kurrajong on Thursday, having already gone the day before and failed in his attempt to kidnap Mrs Whelan. It refutes the defence submission that the appellant could not have been intending to kidnap Mrs Whelan on Wednesday 16 April 1997 because in telling his father on the Wednesday morning that he was going to see Mr Whelan, he did so before he went, consistently with the defence version of events.
In relation to cross-examination of each of these witnesses by the Crown, the appellant submitted that the Crown was given an opportunity to unfairly undermine the credibility of each witness and dilute the effect of evidence given during their cross-examination by the defence that was unfavourable to the Crown. The appellant emphasised that the Crown was on notice as to the evidence which the witnesses would give having regard to the evidence which they gave at the first trial in 2005. Discussion
Section 38 of the Evidence Act 1995 (NSW) was introduced to facilitate a party in testing the evidence of a witness called in that party’s case. The rationale for liberalisation of the traditional rules was to ensure that all relevant evidence was placed before the tribunal of fact: (see ALRC Report No 26, Evidence (Interim), 1986 at [625]).
When a party calls a witness the usual expectation is that the witness’s evidence will assist that party’s case. For this reason, evidence given by such a witness which is unfavourable to the party calling him or her, may be seen as an indication of the honesty of the witness in the same way that an admission against a party’s own interests will often be seen to be more believable than a statement that serves that party’s interests. There were difficulties under the common law in having a witness declared hostile, a necessary step before the calling party could cross-examine: (see McLellan v Bowyer (1961) 106 CLR 95 at 102-104; R v Hadlow [1992] 2 Qd R 440 at 442-443, 448-450; ALRC Report No 26, Evidence (Interim), 1986 at [294]-[297], [623]). As a consequence, on occasions, because of the forensic risks a material witness would not be called by either side. Section 38 was intended to ameliorate the common law and make it easier for a party to test the evidence of their own witness.
Smart AJ described the operation of the section in R v Kneebone (1999) 47 NSWLR 450 at 471: “Section 38 of the Evidence Act 1995 then needs to be considered as it allows a party, who called witness [sic], with the leave of the Court, to question a witness as though cross-examining her about evidence given that is unfavourable to the party. Under s 38(4) such questioning is to take place before the other parties cross-examine the witness unless the Court otherwise directs. Section 38 makes an important change in the law and removes restrictions which had the effect, on occasions, of making important evidence unavailable and preventing the adequate testing of evidence. The judge has the task of deciding whether the evidence is unfavourable (not favourable) and then whether in the exercise of his discretion he ought to grant leave to cross-examine. The careful exercise of that discretion is designed to ensure that there will be no unfairness.”
In the application of s 38 the courts have been careful to emphasise that the flexibility which the section provides should be implemented in a manner which ensures that the trial remains fair. In R v Fowler [2000] NSWCCA 142 at [120], Wood CJ at CL said: “Section 38 of the Evidence Act now permits a party, by leave, to cross-examine a witness who meets any of the criteria identified in sub-section (1). Its exercise is, however, subject to a number of discretionary considerations, so as to prevent its abuse, and is a section that needs to be applied with some care in criminal trials. So it is that before leave is granted, the trial judge must give consideration to the matters specified in s 38(6), s 135 to s 137, and s 192 of the Act.”
As I emphasise below one of the more significant consequences of s 38 is that a court may allow a party who calls an unfavourable witness to cross-examine that witness after the witness has been cross-examined by the opposing lawyer. Accordingly, a witness may be cross-examined by the calling party about unfavourable evidence that emerges in the course of regular cross-examination. Of course, as Wood CJ at CL emphasised, the discretion to allow this to occur may only be exercised after taking account of the matters specified in s 38(6) s 135 to s 137 and s 192.
In most situations if a party is given leave to cross-examine their own witness, the cross-examination should occur before any other party cross-examines (s 38(4)). However, in R v Parkes (2003) 147 A Crim R 450 at 462, Ipp JA noted that there is ample authority to support the proposition that s 38 allows an unfavourable witness to be questioned on evidence led in ordinary cross-examination. His Honour cited R v Milat (unreported, NSWSC, 23 April 1996), R v Pantoja (unreported, NSWCCA, 5 November 1998) and R v Mansour (unreported, NSWSC, 19 November 1996). In Milat, Hunt CJ at CL said (at 6-7): “As the unfavourable evidence was not given until the witnesses were cross-examined by the accused, the Crown could not cross-examine them about the unfavourable evidence until that cross-examination by the accused had taken place. In those circumstances, the situation was to be very different to that where the Crown has led evidence from the witness which is favourable to its case but has then also obtained evidence upon some other issue which was unfavourable. The Law Reform Commission expressed different views at different times concerning the stage at which the party calling such a witness should be entitled to cross-examine upon the unfavourable evidence in that different situation. Originally, it proposed that it should be after the other party or parties had had the opportunity to cross-examine the witness. In its Final Report, the Commission said that this should not be an inflexible requirement, and that provision should be made to enable the other party or parties to question the witness further after the cross-examination by the party who called the witness. Although perhaps not readily apparent from its terms, this appears to have been the intention behind subss (4) and (5) of s 38.

One of the reasons why the common law regarding hostile witnesses was so strict was the assumption that a party who calls a witness is vouching for their honesty. This assumption plays no part in the statutory approach which allows a party to cross-examine their own witness, even when the unfavourable evidence is not unexpected. In its Interim Report of 1985 (Report No 26), the ALRC (at [626]) rejected the idea that the new rule should only apply where the unfavourable evidence came as a surprise to the calling party: “It is argued that where a party knows that a witness will not swear up to his proof of evidence, but calls such a witness intending to attack his evidence, it is a misuse of evidence – the witness is not being put forward as a witness of truth. Thus this argument is based on the ‘vouching the witness’ theory which has been discredited. As to the prosecution, it is argued that it will receive a tactical advantage because, where a prior statement is used, it will go into evidence as an exhibit and go to the jury room. The prosecution, however, has suffered the tactical disadvantage of having to call a witness to prove its case and that witness has supported the defence. The argument also wrongly assumes that the defence will never have the need to call an unfavourable witness. A grave danger in imposing the requirement that the unfavourable evidence is unexpected is that it would enable criminals to defeat prosecutions by suborning key witnesses. The prosecution will normally find out before the hearing, particularly where there is a committal, that a witness is unfavourable.”
That, of course, is not to say that the fact that the prosecution is aware when they call a witness that the witness is likely to give unfavourable evidence is not a relevant consideration when exercising the discretion to grant leave or to make a direction.
In R v Parkes at 462 Ipp JA noted that “judges have disapproved of the use of s 38 as a tactical or forensic device.” This is particularly so when a party seeks leave to cross-examine an unfavourable witness after the witness has undergone ordinary cross-examination. In R v Kingswell (unreported, NSWCCA, 2 September 1998) Studdert J held that the trial judge had erred (but not sufficiently to have caused a miscarriage of justice) by granting leave under s 38 after ordinary cross-examination. His Honour was of the view that in circumstances where the Crown anticipated the unfavourable evidence the matter should have been dealt with before the other parties cross-examined the witness (see pp. 16-17). Smart J expressly disagreed with Studdert J and placed significance on the fact that, in order to overcome any prejudice that might have been caused, the trial judge had given opposing counsel the opportunity to further cross-examine the witness following the Crown’s s 38 cross-examination. This was the same procedure adopted by Hunt CJ at CL in R v Milat. There have been other cases where judges have disapproved of the use of s 38 as a tactical weapon. In R v Mansour (unreported, NSWSC, 19 November 1996), Levine J said (at 5): “As I understand it, no one has pronounced upon s 38 to the effect, which is the objective, as I perceive it, of the present exercise, of holding that s 38 can be availed of in the adversary system as a device to cure damage done in cross-examination, a fortiori when in chief it would be clear to the examiner that there had been a departure by the witness from prior statements disclosing what the witness’ testimony fairly could have been anticipated to be.”
Similarly, in R v Pantoja (unreported, NSWCCA, 5 November 1998), Adams J said (at 53): “I think it would be most unfortunate if counsel, especially prosecuting counsel, thought that s 38 of the Evidence Act might be used as a device to nullify the effect of a cross-examination where they have themselves proceeded or permitted the evidence to proceed upon a false or unreliable basis.”
Although these considerations are relevant to the exercise of a trial judge’s discretion as to whether to grant leave or make a direction (see also s 192(2) in particular s 192(2)(b)), they are not rules of law. James J stated the position (at 51) in Pantoja: “I agree with the trial judge that leave can be granted pursuant to para (a) or para (c) of s 38(1), even though the evidence on which the application is based (that is the evidence which is unfavourable to the party calling the witness or which is inconsistent with a prior statement by the witness) was given by the witness in cross-examination. That the evidence was given in cross-examination is, of course, an important consideration in deciding whether the trial judge’s discretion should be exercised in favour of granting leave.”
It is important that trial judges be alert to ensure that s 38 is not used as a tactical weapon, which may result in unfairness. No doubt there will be occasions when an opportunity to cross-examine a party’s own witness after they have been cross-examined by the other side will bring a forensic advantage. A significant means by which the fairness of the trial can be protected is the capacity to allow the opposing party an opportunity to further cross-examine the witness after the s 38 examination is complete.
Parkes was a case where the Crown had deliberately refrained from asking questions in chief that may have received a response unfavourable to the Crown case. The s 38 application, which had been foreshadowed by the Crown, was not made until the anticipated evidence was elicited in cross-examination by the defence. Of these circumstances Ipp JA said at 464: “It may be argued that some unfairness lay in the fact that the Crown, by the procedure it adopted, obtained the best of both worlds, a result far removed from the situation that would have obtained under traditional adversarial processes. But s 38 does have the potential for transforming the traditional procedure; this lies at the very heart of the section. Accordingly, it seems to me, the mere fact that this actually occurred and the Crown was allowed to cross-examine on evidence brought out in cross-examination by the defendant, startling as it may seem to those brought up on more old-fashioned ways, is not enough to constitute unfair manipulation.

These supplementary contentions, and the original ground 9, raise a number of interrelated issues concerning the functions of the trial judge, the jury and counsel for the parties.
Although now rarely employed in civil trials, the jury remains a fundamental institution in the criminal law. From the earliest days of European settlement of Australia, the right to trial by jury (which was not granted until the 1830s) was seen as a marker of civic responsibility, colonial independence and a check on the arbitrary exercise of public power. In 1819, a group of 1261 “gentlemen, clergy, settlers, Merchants, Landholders and other free Inhabitants of His Majesty’s Territory of New South Wales” (said at the time by Governor Macquarie to constitute “All the Men of Wealth, Rank or Intelligence throughout the Colony”) sent to the King what has come to be known as the Emancipist Petition. In it they stated: “…THAT the Criminal Court appears to your Petitioners to be rather a Court Martial than a Court of Law…this Court is not calculated to administer and distribute impartial Justice to the numerous free and respectable Population of the Colony: that it cannot command that veneration, awe and respect, which ever ought to attend upon a Court of Justice…[W]e do not consider our lives and our liberties can be so well secured, as those of British subjects should be, nor can the laws of our country be administered with sufficient purity and impartiality…THAT your petitioners most humbly beg leave to approach Your Royal Highness, and ardently and most humbly pray, That Your Royal Highness of your grace and clemency may be pleased to extend to us, His Majesty’s Subjects in this Territory, that great and valued inheritance of our Ancestors, Trial by Jury…” (See D. Neal, The Rule of Law in a Penal Colony , Paperback edition, Cambridge University Press, Cambridge, 2002, p. 167).
Indeed, so valued was the institution that trial by jury for Commonwealth offences is now one of the rights that are expressly guaranteed under the Constitution, which provides (in s 80) that “The trial on indictment of any offence against any law of the Commonwealth shall be by jury…”
A fundamental attribute of trial by jury is that it provides for direct community involvement in the administration of the criminal law. It has many benefits, not the least being the legitimacy that the jury gives to pronouncements of guilt or innocence in relation to serious criminal offences. The protection of that legitimacy is fundamental to any decision which affects the jury’s function or process. An important element of its legitimacy is that a jury’s verdict is final. For this reason, the circumstances in which a court will go behind the verdict of a jury are extremely rare. Blackstone spoke of the desirability of ensuring that “…this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it…” ( Commentaries on the Laws of England , IV, University of Chicago Press, Chicago, 1979, pp. 342-343).
Although Blackstone was not dealing with the issues here under consideration, his comment is nevertheless relevant in the present context. Not only must the jury be shielded from inappropriate external influences, but its deliberations must be protected from external oversight and challenge. As Wood CJ at CL noted in R v K (2003) 59 NSWLR 431 at 449: “The sanctity of the jury room and the finality of the verdict are important safeguards in the integrity of the system of justice which operates in this country. Public confidence in the jury system would be jeopardised if they were to be undermined, in any way.”

In Hart (2002) 131 A Crim R 609 the trial of the accused took place at Griffith. The appellant was convicted. During the trial the appellant had called a character witness. Just as the trial judge began the summing-up, his Honour received a note from the jury. The precise terms of the note were not recorded but his Honour later told counsel, in the absence of the jury, that “it is along the lines of, and here I’m seeking to quote it, have a problem with the evidence of the last witness [sic].” The witness being referred to was the character witness. By the time his Honour said this to counsel, his Honour had already given the jury directions to retire with the note and to discuss it amongst themselves. His Honour also told the jury that: “I suppose you’d better come back into the court room when you’ve discussed the note and when the juror has had the opportunity to communicate his views to the rest of you, you can come back into the court room or in advance of that send me a note and if you want some problem resolved, you can come back into the court room and I’ll resolve the problem if I can in the light of whatever note you’ve sent me.”
In the end the jury informed the court officer that they had resolved the issue themselves, and no further note was sent to the trial judge. The original note was not returned.
This Court upheld the appeal in Hart and, inter alia, held that the contents of the jury note should have been disclosed to counsel. Adams J (Sheller JA and Hidden J agreeing) stated that “in the circumstances of this case, the evidence of that character witness was capable of being very significant.” Given the potential importance of the evidence, the appeal was allowed on the basis that “there was a very real risk that what was sought to be conveyed [by the jury note] was not merely a query about the evidence of the witness but something about the witness herself, the distinction being one I think unlikely to be made by a lay person.” During the course of his reasons (at 600), his Honour stated that: “It is most unfortunate that his Honour took the unconventional step of not showing the note to counsel and having it marked for identification, which is the invariable practice in the courts of this State.”
While “invariable” may have been too strong a word, Adams J was correct to identify that in most cases any communication between the jury and the judge should be disclosed in full to counsel for both parties. The exceptions are narrowly confined (Ramstead v The Queen [1999] 2 AC 92 at 98).
The reason for this approach was stated by James LJ in Lamb (1974) 59 Cr App R 196 at 198: “What is of great importance is that any communication should be made known in open court in public in the presence of the accused person, his legal representatives and the prosecution, so that there is no secrecy.”
This rationale flows logically from the “fundamental requirement of the administration of the criminal law that the trial and every aspect of the trial must take place in open court:” (R v Smith [1982] 2 NSWLR 608 at 611 per Street CJ). However, there are occasions when disclosure is not appropriate. It has never applied to material which discloses the actual deliberations of the jury. As was noted in Smith (at 612), when the subject matter of a jury note does not “inhere in or relate to the resolution of the issues joined between the Crown and the accused” it is a matter for the discretion of the trial judge as to whether or not to disclose the note to counsel. It is neither appropriate nor advisable for a judge to disclose a note that relates solely to the deliberative processes of jurors inter se. The deliberations of the jury are not a matter upon which the Crown and the accused can join issue, because it is not a subject in respect of which evidence will be admitted by the court.
The essence of the practice that the contents of a jury note should be disclosed to the parties is that procedural fairness entitles the accused and the prosecution to at least know about any query or problem in respect of which the parties may be in a position to assist the court. However, in R v Pearson [1996] 3 NZLR 275 Eichelbaum CJ said (at 279): “…the overarching approach must simply be one of fairness, and regard for the appearance as well as the reality of justice. As a general rule counsel must be made aware of the communication so that each will have the opportunity to be heard on the action to be taken. However, given the infinite variety of circumstances that will arise it is impossible to lay down absolutes. We do not say that the opportunity to be heard must always be given before the Judge replies; some communications will admit of only one answer…”
It has always been the case that it is inappropriate for the jury to disclose their deliberative process to the judge. It would be equally inappropriate if a judge was to further the error by disclosing the jury’s deliberative process to counsel. Unless a jury note reveals some irregularity upon which submissions would be of assistance, the only purpose served by the disclosure of the note would be to dispel any impression of secrecy. Since for sound policy reasons a jury’s deliberations are required to be secret, disclosure must be confined.
The problem was discussed in R v Gorman (1987) 85 Cr App R 121. In that case the jury sent a note to the trial judge which, in addition to disclosing the fact that they were in disagreement, also disclosed the exact number of jurors for and against acquittal. The judge informed counsel of the fact of the division, but not of the precise figures. The English Court of Appeal refused to interfere with the verdict subsequently arrived at by the jury. At 126-127 the Lord Chief Justice said: “Accordingly it seems to us that certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to consider its verdict.

In the present case, the trial judge took the correct approach. His Honour concluded that the note included information that ought not to have been disclosed by the juror. If it is inappropriate for the jury to disclose voting figures, then a fortiori it is inappropriate to disclose how those figures were arrived at. That this is so cannot be doubted when one considers legislative prohibitions against the solicitation or disclosure of such information that are contained in ss 68A and 68B of the Jury Act 1977. The masked portions of the note related solely to the manner in which the jurors conducted their deliberations. The deliberations were entirely inter se, and although robust (perhaps heated) they involved no illegality or irregularity.
The appellant complained that the note indicated that the juror felt that he or she was being pressured by the other jurors. The appellant sought to draw an analogy with the confession of a person who is suspected of a crime when the confession is influenced by violent, oppressive, inhuman or degrading conduct or a threat of conduct of that kind. Such a confession is inadmissible under s 84 of the Evidence Act 1995. The analogy does not obtain in the present case. The experience of the minority juror, whilst perhaps unpleasant, was by no means beyond the bounds of normal human behaviour. It is to be expected that a group of twelve strangers asked to arrive at a unanimous decision will at some point disagree on one or more issues. So long as there is no illegality or irregularity involved, how the jurors go about resolving the disagreement is a matter for them. The experience of the juror in this case might be exceptional, or it might be common. The debate may have been more robust than in some cases. There may also be cases where the pressure of argument from one or more jurors may have been more burdensome than in the present case. However, that is not a matter with which this Court need concern itself. To do so would breach the fundamental principle that jury deliberations are conducted in private.
There is one respect in which it might be possible to say that the pressure applied to the juror in this case could have constituted an irregularity. It lay in the other jurors’ supposed threats to disclose to the judge the minority juror’s minor transgressions in order to cajole him or her into changing their mind. The appellant argued that this was not disclosed to counsel and that it ought to have been. However, it appears from the edited version of the jury note that the situation was adequately conveyed. From the edited note it appears: that the juror may have twice breached (or almost breached) the judge’s directions in a manner that had concerned other jurors; that the juror clearly felt that his or her breaches might result in the juror being “censured” by the judge; and that the juror believed that disclosure by the other jurors of the supposed breaches was imminent and that consequently the judge was “entitled to the courtesy of hearing about what I have, (and have not) done, from me, first.”
It is likely that the juror felt that his or her refusal to change their mind would prompt the other jurors to disclose the alleged breaches of the judge’s directions. The trial judge did not need to reveal any more of the note or say anything else further in order to communicate this matter to counsel. Moreover, the judge made it clear in his subsequent directions that the juror had in effect done nothing wrong and did not deserve censure from the judge or the other jurors. Any possible irregularity in the jury process was cured by this direction, which would have removed the impact of any threats if they had been made by other jurors.
Even if there was no suggestion that the juror’s breaches of directions were being used as leverage against him in the jury room, it was appropriate for the trial judge to have disclosed (as he in fact did) the details of the alleged transgressions in open court. A juror’s breach of directions, if it occurs, is an issue about which the parties should be informed and about which they should have an opportunity to make submissions.
The appellant submitted that the trial judge erred by not disclosing that the minority juror felt that further deliberations would be not genuine. However, his Honour included the juror’s comment in the note that “I have to ask that the continued deliberations, that now no longer serve a purpose, please be brought to an end.” The appellant contended that his Honour erred by not disclosing that the latter assertion was largely based on the fact that the other jurors had said that they would drag out the deliberations and freeze the minority juror out until he or she came around to their way of thinking. This assertion by the minority juror, even if true, was solely concerned with the jury’s deliberations. His Honour was correct not to disclose it.
The question of the admissibility of evidence of the deliberations of a jury has been considered on many occasions. In R v Wooller (1817) 171 ER 589, the jury came into the court when the jury box was occupied by a jury from another case. Consequently only four jurors could fit in the court room when the verdict was delivered. Lord Ellenborough said (at 590): “This distinguishes the present case from those which usually occur, where every individual of the jury hears what is said, and has it in his power to dissent; there the evidence is complete, that he knew what passed, and his not dissenting is conclusive to shew his approbation of the verdict.”
On many of the subsequent occasions when this case has been considered it has not been acknowledged that notwithstanding this conclusion the court still refused to receive evidence from the jurors who claimed not to be able to hear the verdict. Lord Ellenborough said (again at 590): “The Court think that they are shut out from acquiring any knowledge of the fact by means of an affidavit. From the statement made by the learned Judge who tried the cause, it appears that the verdict was given under circumstances which render it doubtful whether the usual assent was given by all the jury to the verdict delivered by the foreman. The danger would be infinite if an affidavit could be received from a juryman for the purpose of setting aside a verdict.”
In The Queen v Michael Murphy (1867-69) LR 2 PC 535 (which was an appeal to the Privy Council from the Supreme Court of NSW), their Lordships noted (at 548) that: “…we have not discovered any valid authority for holding a verdict of conviction or acquittal in a case of Felony delivered by a competent jury before a competent Tribunal in due form of law to be a nullity by reason of some conduct on the part of the jury which the Court considers unsatisfactory.”
The Privy Council identified (at 549-550) that in all the civil cases where the court had admitted evidence from jurors that impugned a verdict, the evidence had “alleged traversable facts material and relevant, to shew that the verdict had actually resulted from improper influence,” such as where the jury had taken inadmissible evidence into the jury room.
Bankes LJ stated in Ellis v Deheer [1922] 2 KB 113 at 117-118 that: “…I desire to make it clear that the Court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself. It has for many years been a well accepted rule that when once a verdict has been given it ought not to be open to an individual juryman to challenge it, or to attempt to support it if challenged. I have spoken of this as a rule of law, but it has also been generally accepted by the public as a rule of conduct, that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential.”
In the same case (at 120), Atkin LJ said: “In accordance with the ordinary practice the verdict is, or ought to be, delivered in open Court by the foreman in the presence of the other jurymen, and if it is so delivered in their presence there is a prima facie presumption that they all assented to it.”
The presumption of which Atkin LJ speaks is so strong that it cannot be rebutted by evidence of the jury’s deliberations inter se, and the court will not admit such evidence. For instance in Vaise v Delaval (1785) 99 ER 944, the Court refused to admit evidence from two jurors that the jury had made their decision by tossing a coin. In Nanan v The State [1986] AC 860, the accused had been convicted and sentenced to death. Notwithstanding the dire consequences, the Privy Council refused to admit affidavit evidence of four jurors (including the foreman) that when delivering the verdict the foreman had mistakenly agreed that the verdict was unanimous when there had only been a majority of 8:4. Even though under the relevant statute a unanimous verdict was required to sustain the conviction, the court refused to go behind the jury’s verdict. Their Lordships said (at 872): “It may be said that the alleged misapprehension in the present case, if it existed, was of a fundamental kind; but the same may be said of other misapprehensions, for example as to the facts of the case or as to the applicable law, which can likewise lead to an erroneous verdict. In such cases, however, evidence of the misapprehension is equally inadmissible.”
The prohibition against admitting evidence of the jury’s deliberations is such that the English Court of Appeal refused to set aside a verdict that had been arrived at after three members of the jury consulted (and were apparently influenced by) a ouija board: (R v Young [1995] QB 324 at 331).
R v Emmett and Masland (1988) 14 NSWLR 327 was a case where the appellants’ convictions were set aside and verdicts of acquittal entered. Evidence was admitted from jurors which showed misconduct on the part of Sherrif’s officers, who were found to have participated in the jury’s deliberations. In admitting evidence of the relevant events, Lee J said (at 334): “I have taken some time to go through the authorities to make clear that the present proceedings are in no way a departure from accepted law as to non-disclosure of a jury’s deliberations and the finality of a jury’s verdict. The rule as to non-disclosure by a juror of what goes on in the jury room serves a valuable public purpose as has been explained. But the rule is not one which prevents a court from considering evidence of jurors on matters which are extrinsic to the matter of deliberations of the jury. What happened in the present case happened, in significant respects, in the jury room and it is for that reason that I am at pains to point out that none the less the course taken in this case is in no sense a departure from established law but, indeed, an application of established law. For there are a number of cases which make clear that when matters extrinsic to the jury’s actual deliberations are brought to the notice of the court by members of the jury the court will in a proper case intervene and set aside a verdict.”
While agreeing generally with Lee J, Grove J (at 340-341) made the following additional comment: “This appeal has revealed that there has been a failure in the duty of protection which is reposed in jury keepers. Thus it has been necessary to admit evidence which in its peripheries had the result of exposing not only the matter of interaction between the keepers and the jury but as an incidental of some of the activity amongst the jury inter se. I expressly confirm my adherence to the principle that the deliberations of jurors and their conduct, unenhanced by any contribution from an external source, are privileged from later examination and analysis.”
In Minarowska and Koziol (1995) 83 A Crim R 78, Gleeson CJ noted (at 85) that the distinction between inadmissible evidence of a jury’s deliberations and admissible evidence of “extrinsic matters” that prove a material irregularity is often very hard to draw. R v K (2003) 59 NSWLR 431 is a good example of the application of the distinction. In that case, the court admitted evidence from jurors about external research that had been performed on the internet, but declined to admit evidence of any discussion of the material so obtained or of the effect it had on the deliberations. Gleeson CJ expressly left open the possibility, endorsed by the Court of Appeal of New Zealand in Tuia v R [1994] 3 NZLR 553 at 556-557, that the Court might have a residual discretion to admit evidence of a jury’s deliberations when it was in the interests of justice to do so.
The appellant contended that the trial judge erred by failing to request the minority juror to give evidence on oath, pursuant to s 55 of the Jury Act 1977, concerning the matters in the note so that the contents of the note was properly before the court without breaching s 68B. Section 68B(1) of the Act provides: “(1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about:

The section has no relevance to the present case.
Furthermore, for the reasons I have already discussed the trial court could not have admitted evidence that went beyond what was disclosed in the edited version of the note in any event.
My conclusion that by writing the note the minority juror was not in breach of s 68B disposes of the appellant’s further contention that the jury ought to have been discharged because of the supposed irregularity caused by the juror’s alleged breach of the Jury Act in writing the note. Discharge of the jury and the Black direction
The appellant contended that the trial judge erred by failing to discharge the jury after receipt of the note. The submission is based on the suggestion that the note revealed that the jury was intractably deadlocked and unable to meaningfully continue their deliberations. The relevant principle is that “an intimation…that the jury is unable to reach a decision does not, standing alone, give rise to a ground of appeal:” Deemal-Hall v DPP (Cth) (1995) 65 SASR 495 at 503. In Tangye (1997) 92 A Crim R 545 at 549, Hunt CJ at CL said: “The fact that the note referred to an inability rather than a difficulty in reaching agreement did not matter, as the judge was not obliged to accept that assertion without attempting to encourage the jury to reach an agreement.”
The appellant further submitted that the note contravened the test provided in Webb and Hay v The Queen (1996) 181 CLR 41 where Mason CJ and McHugh J said (at 53): “…the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”
The test to which the appellant drew attention is that which is applied where there is a suggestion that a juror(s) is or may be biased. In the same case (at 74), Deane J noted that: “The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.”
The appellant submitted that the note may have given rise to a reasonable apprehension or suspicion of bias in a fair-minded and informed member of the public in two ways: firstly, in that it revealed that the intractable majority would not discharge their task impartially and, secondly, in that it demonstrated that the minority juror would not or could not discharge their task impartially because of their evident distress. In this case, the only category of disqualifiable bias that could possibly be asserted is the second category mentioned by Deane J, namely, bias evidenced by conduct.
The submission must be rejected. The jury had, by the time the note was written, been in deliberations for a number of days. It is not surprising that firm positions had been taken and rigorous debate was occurring. It could not rationally be suggested that all jurors must come to the same conclusion at the same time before they may enter a valid verdict. If it could be argued that a minority juror’s decision to join the majority gives rise to an inference of bias, then in almost any case where the jury deliberated for any length of time there may be grounds for discharge. Any delay in reaching a verdict may indicate that one of the jurors (at least) was not immediately convinced of the accused’s guilt or innocence and had to be convinced to change their mind.
It is the nature of a Black (Black v The Queen (1993) 179 CLR 44) direction that at the time it is given the jury may be approaching the point where they are not able to reach an agreement. In these circumstances a Black direction may result in a miscarriage of justice if it creates a real risk of the jury failing to give the issues free deliberation (Tangye at 551; R v Bisat (unreported, NSWCCA, 9 October 1995)).
There were two judgments in Black. The joint judgment of Mason CJ, Brennan, Dawson and McHugh JJ provided a form of direction which may be appropriate in many cases. In the present case the trial judge followed the form of that direction carefully. It is apparent that the form of words was intended to encourage agreement between jurors without putting pressure on them to change their views unless that change is voluntary, honest and genuine.
The issue in the present case is whether the trial judge erred by giving a Black direction when, because of the juror’s note, he knew that the minority juror was under pressure from the majority. The giving of the direction was a matter for his Honour’s discretion. His Honour had the advantage of observing the atmosphere of the trial and demeanour of the jury. The fact that the minority juror felt pressure from the other jurors was not surprising. It does not of itself arouse concerns of a miscarriage of justice. Any suggestion that the pressure which was being applied to the juror may have been improper (i.e. to the extent that the juror’s alleged breaches of the judge’s directions were being used as leverage against him or her), was addressed by his Honour’s directions. If there was a threat by other jurors to disclose the suggested breaches by the minority juror to the trial judge it would have lost all of its force when his Honour said, unequivocally, in open court that he was not concerned about them.
The appellant submitted that even if this analysis is correct, the juror would have been placed under further pressure because the trial judge revealed that the juror had, in effect, “dobbed” on the other jurors. This submission is directed to the relationship between the jurors in the jury room. Even if it had substance, and I do not believe it does, it invites this Court to speculate about matters about which inquiry cannot be made. As I have already indicated, the deliberations of the jurors are not matters for this Court. Antipathy between individuals, however caused, is, unfortunately, an unavoidable fact of life and must be expected to exist amongst jurors from time to time. It could not provide a reason to discharge the jury.
In the present case I am satisfied that it was appropriate for his Honour to give a Black direction. Although he had received information that the jury were having difficulty reaching agreement he was also informed that discussions were ongoing. Indeed, the essence of the communications from the juror was that debate was continuing. The juror was being asked to explain his or her position. There is no reason to believe that in the hours which followed, the debate did not resolve the remaining difficulties, resulting in a unanimous verdict.
The appellant contended that if it was correct to give a Black direction, his Honour should have modified the usual direction so that: (a) the jury was told that such a direction was normal; and

In my opinion, his Honour’s directions were appropriately formulated.
Ground 9(c) alleged that the trial judge erred in failing to enquire at the end of the day of 5 June 2006 (having already given the Black direction) as to whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance. There is no substance to this ground. Having given the direction, it was a matter for his Honour to determine when it may be appropriate to enquire of the jury’s progress. Given the time the jury had already taken, the fact that he did not make enquiry as to their progress at the end of 5 June 2006 was of no moment.
Ground 9 entirely fails. Ground 10 – in all the circumstances the verdicts were unsafe and unsatisfactory and cannot be supported having regard to the evidence
I have already reviewed in detail the evidence tendered at the trial and determined that Ground 1, which required an analysis of that evidence, fails. Although there are some features of the evidence upon which the Crown relied at the trial which in my opinion have little probative value, 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. I do not believe there is a significant possibility that an innocent man has been convicted: M v The Queen (1994) 181 CLR 497 at 492-4. I discussed the relevant principles in R v Habib (2005) NSWCCA 223 at [48]-[56].
The essential elements of the Crown case which lead me to this conclusion include the fact that at the relevant time the appellant was in serious financial difficulty and had lost the support of his former wife. He was unemployed with outgoings significantly in excess of his income. He asked for and then demanded money from Mr Buckley. 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. His motivation for seeking to extort money was clearly established.
The appellant telephoned Mr Whelan on 7 April 1997 without any apparent reason. Although he was in need of employment he did not make any request for work on this occasion. However, during the course of the conversation Mr Whelan mentioned his regular absence from Sydney on Wednesdays because of business trips which he frequently made to Adelaide.
The appellant, without any prior arrangement or notice, visited the Whelan property on Wednesday 16 April 1997. In order to gain access to the property the appellant telephoned from a public phone rather than using his mobile phone. As it happened, Mrs Whelan was not alone at the property. The appellant spoke privately with her. When he had left, Mrs Whelan asked Ms Minton-Taylor to keep the visit secret saying that she would reveal the purpose of the visit in a few weeks. The appellant’s explanation for attending the Whelan property was that he assumed Mr Whelan – whom he wanted to ask for work – would be there. He said that he had contacted Mr Whelan’s office earlier that day and was told he was not at work. However, this evidence was not supported by evidence given by any of the staff at Mr Whelan’s business. Furthermore, any absence of Mr Whelan from his office was more likely to have been explained as being due to his travelling to Adelaide, which was consistent with the information Mr Whelan had previously given to the appellant.
Mrs Whelan told Mr Whelan she had an appointment at Parramatta on 6 May 1997. The diary entry which she made for that day was unusual, having simply marked 9.30 am without any purpose for that appointment. The couple were due to fly to Adelaide together that afternoon, a trip which Mrs Whelan was looking forward to.
Mrs Whelan was observed entering the car park of the Parkroyal Hotel and was recorded exiting on foot at 9.38:03 am. She never recovered her vehicle.
A vehicle which was consistent with the Pajero driven by the appellant was observed outside the Parkroyal Hotel at 9.01:24 am on that day. Thereafter a vehicle consistent with that vehicle was recorded pulling out from the kerb just to the west of the car park ramp at 9.38:46 am. It proceeded in an easterly direction down Phillip Street. In summary, the evidence discloses that Mrs Whelan arrived at the Parkroyal Hotel and at a time consistent with her leaving the car park and moving to the front of the hotel a vehicle consistent with the vehicle driven by the appellant was observed to leave the location. The vehicle which was observed had a dusty rear window with wiper marks consistent with the appellant’s vehicle when it was later examined.
Mr Whelan received a ransom letter on 7 May 1997 including instructions to leave a coded advertisement in The Daily Telegraph on 13 May 1997. During the search of the appellant’s property on 25 May 1997 police located two “dot point” notes in the appellant’s handwriting. Although the defence offered an alternative explanation, those notes are consistent with them being an outline of a kidnapping plan and the essential elements for the ransom letter.
During the search a Canon typewriter which the Crown alleged could have been used to type the ransom letter was also found. However, that typewriter did not have a daisy wheel consistent with the wheel used to type the ransom demand and a wheel which could have been used for this purpose was never located. The finding of the typewriter is not relevant to my conclusion.
A UBD street directory was also found in a Jaguar motor vehicle which was in the appellant’s possession. It had Phillip Street, Parramatta heavily highlighted and the address of the Parkroyal Hotel written in the margin of the map. There was also some highlighting in the same colour leading away from the Parkroyal Hotel in the general south-westerly direction. However, there was evidence of the appellant having previously attended the Parkroyal Hotel and to my mind the marking in the street directory was not of particular significance.
On 23 May 1997, after the appellant’s property was under police surveillance which would have been known to the appellant, a telephone call was made by a male from a phone booth outside the Empire Hotel in Goulburn at 9.21 am to Crown Equipment. The caller revealed a knowledge of the events relevant to the ransom letter. The appellant, who had reason to believe he had been followed, admitted using the telephone outside the Empire Hotel but said he had used it to call his solicitor for a second time that morning at about twenty or thirty minutes after 9 am. This account was not consistent with the records of calls kept by the solicitor’s office and, having regard to the proximity of the solicitor’s office to the telephone booth, a rational reason for the making of the call is difficult to identify. Although the appellant undoubtedly made a call to his solicitors that morning, it is most likely that this was done in order to provide a justification for the call which was made to Crown Equipment. The defence suggested at the trial that the phone call was in fact made by a policeman endeavouring to “frame” the appellant as the perpetrator of the crime. There was no evidence of any policeman who had made such a call.
The appellant suggested that having regard to the time at which he returned to his property that morning and then continued to his neighbours, he could not have made the telephone call to Crown Equipment at the time it was recorded. The appellant’s argument turned on a few minutes and was based upon estimates of the time at which the appellant was observed returning to his property. Although the telephone call may be accurately determined, the time of the appellant’s movements cannot be precisely determined.
The evidence establishing the death of Mrs Whelan was strong. She had a close relationship with her husband and her children. There is no reason for her to have disappeared of her own accord. She had made plans with her husband for the future including a prospective overseas holiday. She disappeared on 6 May 1997 and none of her bank accounts have since been accessed. There are no immigration or Medicare records which could support her having left the country or sought medical attention. Although there was evidence from persons who believe they may have seen Mrs Whelan since 6 May 1997, all of that evidence suffers from significant deficiencies and is unconvincing.
To my mind, although there is no one piece of evidence which inevitably leads to a conclusion of the appellant’s guilt, the combination of circumstances including his visit to the Whelan residence, the evidence relating to the Pajero, the dot point notes and the telephone call on 23 May 1997 are compelling.
I would dismiss this ground of appeal. Application for leave to appeal against sentence
The appellant was sentenced on 9 August 2006 to life imprisonment upon the murder count to date from 23 December 2005 and upon the kidnapping count to a term of imprisonment of sixteen years with a non-parole period of twelve years both to date from 23 December 2005. It was submitted (Ground 11) that his Honour erred in finding there was no alternative to imposing a sentence of life imprisonment and that (Ground 12) in all the circumstances the sentence imposed for the murder conviction was manifestly excessive.
The maximum penalty for murder is life imprisonment (s 19A, Crimes Act 1900). Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 provides: “The court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”
I considered and reviewed the authorities in relation to this section in the matter of Knight v R [2006] NSWCCA 292 at [23].
In the present case when sentencing the appellant his Honour said “in my opinion the defendant’s detailed planning, his persistence, the precautions he took to avoid detection, his motive, the cold desire to extort a large sum of money, and intent he harboured between 16 April 1997 at the latest and 6 May 1997 to kill Mrs Whelan, comprehend a level of culpability that is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence.”
There can be no doubt that the offence required detailed planning. Contact was made with the Whelan family, information obtained as to the movements of Mr Whelan and a visit made to the Whelan residence when Mr Whelan was unlikely to be present. Thereafter a plan was devised to take Mrs Whelan and ensure that no trace was left of her in the appellant’s vehicle and that her body was hidden. Critical to the trial judge’s conclusions in relation to sentence was the fact that the appellant, having abducted a person whom he knew and who knew him, there was no prospect that her life would be spared. The appellant’s plan inevitably involved killing Mrs Whelan.
In the present case the appellant accepted that, although premeditated and carried out for the purpose of financial gain, the appellant’s crime did not have the level of culpability so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life. It was submitted that these features did not constitute “particular features of very great heinousness.” It was emphasised that there was no evidence that Mrs Whelan was exposed to any period of fear and the trial judge did not make such a finding.
The appellant emphasised that there have been cases where, although offences of murder were premeditated and financial in motivation, a life sentence has not been imposed: see Willard [2005] NSWSC 402; Mrish (Hidden J, unreported, 13 December 1996); Chetcuti NSWCCA (unreported 24 December 1993).
However, there are other decisions of this Court which would point in a different direction. Contract killings have been found to fall in the worst category of case (see Cross, Grove J, unreported, 6 December 1996) where his Honour said that “a deliberate killing for payment would prima facie find its place in the worst category of case with the potential for the imposition of the maximum penalty.” Hunt CJ at CL in Kalejich (1997) 94 A Crim R 41 said that he agreed with this statement although recognising that there may be contract killings which in all of the circumstances would not attract the maximum penalty (at 52).
In my opinion the circumstances of the present case may be accurately described as a planned killing for financial gain. Although the appellant argued that his case should be distinguished from that of a contract killer, who kills in return for a payment or otherwise has no relationship with the victim, I am not persuaded this is a relevant distinction. This was not a case where an existing relationship was part of the motivation for the killing. Any relationship which the appellant had with the Whelan family had ceased some years previously. The motivation in making contact with them was apparently for no reason other than to pursue his plan to extract money, for which it was essential that Mrs Whelan be killed. The appellant’s actions can be equated with that of a contract killer where he both initiates the enterprise and carries out the ultimate murder (see R v Crofts (unreported) Supreme Court 6 December 1996; R v Smith [2000] NSWCCA 202 at [164] and [166]; R v King (1998) A Crim R 88 at 291 and 292; R v Lewis [2001] NSWCCA 448; R v Baker (unreported) CCA 20 September 1995; R v Glasby (2000) 115 A Crim R 465).
In these circumstances, I am satisfied that his Honour was correct in concluding that there was no alternative but to impose a life sentence. It was not excessive. Decision
Although I would grant leave to appeal against sentence that appeal should be dismissed.
SULLY J: I agree with McClellan CJ at CL.
JAMES J: I agree with McClellan CJ at CL. **********

BURRELL v R [2007] NSWCCA 65

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