BURRELL v R [2007] NSWCCA 65

1. On 6 May 1997 at a place unknown in the State of New South Wales he did detain Kerry Patricia Whelan with intent to hold her for advantage to the said Bruce Allen Burrell (contrary to s 90A of the Crimes Act 1900);

2. On or about 6 May 1997 at a place unknown in the State of New South Wales he did murder Kerry Patricia Whelan (contrary to s 18(1)(a) of the Crimes Act 1900.

2 The trial was conducted before Barr J and a jury commencing on 16 March 2006 and continuing until 6 June 2006. The jury retired to consider its verdicts at 12.58 pm on Wednesday, 24 May 2006. After deliberating for eight days, at 10.00 am on Monday, 5 June 2006 a juror sent a note to the trial judge which, in general terms, indicated that, at that stage of their deliberations, they could not agree and stated that further deliberations would serve no useful purpose. The juror requested that the jury be discharged. Barr J did not take this course and directed the jury in accordance with Black v The Queen [1993] HCA 71; (1993) 179 CLR 44. The jury returned the following day at 2.50 pm with verdicts of guilty upon both counts.

3 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.

4 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.

5 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.

6 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.

7 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.

8 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.

9 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.

10 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.

11 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.

12 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."

13 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."

14 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.

15 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.

16 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.

17 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

18 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.

19 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.

20 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.

21 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."

22 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."

23 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.

24 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.

25 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.

26 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.

27 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.

28 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.

29 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.

30 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.

31 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.

32 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.

33 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.

34 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.

35 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.

36 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.

37 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.

38 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.

39 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.

40 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.

41 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.

By the time you receive this letter she will be safely in our keeping.

To ensure her safe return you must at no time bring in the police the press any authorities or outside assistance. We will know if you do so.

The consequences of breaching tis rule will be dire for your wife.

You are not our first Australian target there have been others. You have not heard of this in the past because they have implicitly followed all instructions and been reunited with there loved ones.

We will know if you breach any conditions at any time and you and your family will not see her again. This is our only garantee.

The ransom for her return in one million US dollars. The rate of exchange means you will pay one million two hundred fifty thousand Australian dollars to be paid in one hundred dollar Australian notes. Ensure only the new plastic notes are used. No paper currency. No consecutively numbered notes. The money is to be delivered in a heavy duty green plastic garbage bag.

The money is not to be photo copied. No remote transmitting devices. No radio active dusts. No dyes. No means of tracing the money is to be used.

We are able to scan and test for all such devices and any other method you may use. Do not be tempted for if anything is used to trace the money it will not be collected and your wife will die. No further contact will be made.

You have seven days. When the money is ready you are to put an advertisement in the public notice section of the Sydney Daily Telegraph newspaper saying:

'Anyone who witnessed a white Volkswagon beetle parked beside the eastern gates of the Sydney Olympic site at 10.30 pm on Tuesday 8.4.97 please call .... then put your home telephone number at the end of the advertisement.

After the advertisement has been in the newspaper we will be in contact within three days at your home to tell you the next step. Be ready to leave with the money at any time.

The money is to be delivered by you and nobody else. Do not substitute yourself for the delivery. You must be alone. Have no wires on yourself or in the car you use. We will know if you try to use them. Do not use the car radio.

Any sign of outside involvement or interference and your wife will die.

We will be aware of everything you do. Take cae this is your only means of ever seeing her alive again."

42 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.

43 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.

44 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.

45 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.

46 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.

47 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.

48 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.

49 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.

50 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.

51 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.

52 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.

53 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.

54 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.

55 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.

56 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.

57 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.

58 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.

59 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."

60 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."

61 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.

62 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.

63 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).

64 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.

65 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.

66 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.

67 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.

68 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.

69 The book showed Jennifer Elliott to be the tenth caller of the day and Sharon Shorrock to be the twelfth.

70 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.

71 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.

72 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.

73 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.

74 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.

75 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.

76 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.

77 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.

78 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."

79 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.

80 None of the officers who received exhibits (Inspector Jago, Mr Miller, Robert Goetz) added anything as to who delivered them.

81 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.

82 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.

83 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.

84 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.

85 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.

86 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.

So the Crown case is that during those five days he was under intense personal pressure, and it was because of that intense personal pressure that the Crown says he made a terrible mistake on 23 May, right in the middle of this."

87 When interviewed as to the events of 6 May 1997 the appellant said that he was at Hillydale on his property.

88 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.

89 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.

90 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.

91 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.

92 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.

93 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."

94 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.

95 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.

96 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.

97 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?

BURRELL: Do you remember, um, your son and a mate of his - well, it was up from Canberra, and they came across and had a look? (Pause)

B: That's right. Do you - you remember that don't you?

C: I remember it, yeah, but I wouldn't know the date.

B: Well, mate, it was in the middle of your shearing from memory.

C: Well Neil was working all the time at the shearing.

B: Yeah, but, mate, someone - I remember they came over when they had a break or something ... (pause)... and they had a look at that bloody shaly area. Remember we were talking there on the left where Dave cleared it years ago.

B: But, mate, you rang me that day and told me that Neil had been across and had a look and said 'Yeah, you could probably put them in but there's not as big an area as we thought it was.'

B: Mate, is there any way you can remember what that date was?

B: All I'm thinking is, mate, I've got a feeling it was around a specific date and I'm just wondering whether if I could find - whether you rang me that day. Apparently Telecom keep records of local calls but they just don't send them out. I'm just wondering if you make requests for them and so on: you know what I mean?

B: Yeah, mate, it was early May. And, mate, I've got a feeling it was the sixth of May that we spoke - that you rang me. (Pause)

C: Yeah, that's what I got in my diary, but I don't know whether we went down to see it that day or not.

B: Ah, and, mate, don't tell anybody - I, I'll come over and see you over the weekend.

C: 'Di and Phil', 'Bruce Burrell, Rabbit Ears.' So that'd be when Neil and Dave come down.'

98 There was then some further conversation about the entry, and the appellant again requested that Mr Cooper keep it.

99 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.

100 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.

101 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.

102 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.

103 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.

104 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.

105 An intense and extensive search was conducted of the Hillydale property and surrounding areas. No trace of Mrs Whelan was located.

106 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:

advertisement [of Bernard Whelan of the kidnapping and ransom demand];

waiting [while the money is obtained by Bernard Whelan];

107 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:

letter within 2 days [informing Mr Whelan how to hand over the ransom];

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