Ground 2: Notoriety and character
109 The appellant's submissions focussed on a note received from the jury in the course of their deliberations. A fairly extensive context is necessary.
110 The appellant's trial was listed to commence on 30 July 2007. By notice of motion filed on 25 July 1997 he applied for a permanent or temporary stay based on the prejudice created by media publicity. Earlier such applications had been made and refused. The application was also refused. There was no appeal at the time, and the present appeal was not on the basis that the refusal was erroneous, but the appellant relied in the appeal on material put before the Court for the purposes of the application.
111 The material was extensive. A sufficient description of its nature is as follows.
112 Ms Kerry Whelan disappeared on 6 May 1997. There was publicity surrounding her disappearance, including as to the appellant being person of interest in the police investigation and as to searches of Hillydale.
113 On 1 April 1999 the appellant was charged with the kidnap and murder of Ms Whelan. His trial commenced on 29 January 2001. Following certain rulings by the trial judge, the Crown filed a nolle prosequi on 17 April 2001.
114 In May and June 2002 sequential inquests were held into the disappearances of Mrs Davis and Ms Whelan. A newspaper article on 26 June 2002 reported that the Coroner had said that he was satisfied that there was an indictable offence and a reasonable prospect that a jury would convict a known person of that offence in relation to the disappearances of both Mrs Davis and Ms Whelan.
115 Media coverage during the inquests and following their conclusion referred to the appellant and suggested that he may have been the offender; indeed, in a newspaper article on 31 July 2002 it was said that he "was the likely killer of both women". It is unnecessary to go into detail, as it may be accepted that the publicity was strongly adverse to the appellant. The appellant referred in particular, however, to a newspaper article referring to a bottle of chloroform said to have been found by police in the house at Hillydale following Ms Whelan's disappearance. Evidence of finding the chloroform was not led at the appellant's trial for the murder of Mrs Davis.
116 In September 2002 the Director of Public Prosecutions announced his decision to indict the appellant over Ms Whelan's disappearance, and there was newspaper coverage of the announcement.
117 The appellant was tried on that indictment in the latter part of 2005, with a hung jury. After a re-trial, he was found guilty in mid-2006 and was sentenced in August 2006. An appeal to this Court was heard at the end of November 2006. Judgment was given in mid-March 2007. A further application was made to this Court, resulting in a further judgment later in March 2007.
118 All these events attracted newspaper, television and radio coverage. In particular, shortly after the conviction on 11 June 2006 a television programme referred to the charge against the appellant of murdering Mrs Davis and included excerpts of an interview of the appellant in 1997 in which he was asked about the coincidence of his knowing two women who had disappeared; this, it was suggested in the programme, was "unusual to the point of disbelief". In a radio interview in mid-March 2007 Mr Whelan, the widower of Ms Whelan, remarked that the appellant "faces the Dorothy Davis matter after 13 years" and that "perhaps after that, after that trial, maybe then he might realise that he, he's not going to get off and hopefully will come clean".
119 The appellant submitted on appeal that there were similarities between the two disappearances, each involving a circumstantial case of a financial motive, a suggested rendezvous, an unexplained disappearance and alleged disposal at Hillydale, such that the publicity in respect of the disappearance of Ms Whelan would "resonate" as the evidence unfolded in the appellant's trial for the murder of Mrs Davis. The jury would have been reminded of the publicity, he said, by evidence such as Mr Grace saying that he went to the police in 1997 as a result of a newspaper report of police interest in the appellant. The Crown submitted that the most recent media reportage had been four months prior to the commencement of the trial; that the most significant media publicity had been many years before, in 2002, and that media references to the disappearance of Mrs Davis in the few years before the trial had been infrequent and in passing.
120 The jury was empanelled on 6 August 2007. From the discussion with counsel and some remarks addressed by Kirby J to representatives of the media, it is evident that all concerned were conscious of prior publicity concerning the disappearance of Ms Whelan. That must have been so, given the recent application for a stay.
121 His Honour's remarks to the jury panel in waiting included, after reference to reaching a verdict only on the evidence presented in the courtroom -
"What that means is that anything that anyone who is selected may have heard or read or seen on television in the past about this case or about this accused is entirely irrelevant and must not be taken into account; and, hence, any pre-trial publicity, anything that you know about this case or this accused must be put to one side and is irrelevant, as it is in every criminal trial. These instructions are given to every jury panel in waiting.
…
What is ultimately needed is a jury of twelve persons aimed to bring a dispassionate mind to bear upon the issues that will be joined between the parties; that is, to bring a dispassionate mind to bear upon the evidence. By 'dispassionate', I mean an objective mind - not included influenced by prejudice, not influenced by bias - but able to reach an objective view on the evidence and only the evidence.
So, if, for instance, you knew one of the witnesses, or you knew the accused or his family, or you knew the woman who is said to be deceased, Dorothy Davis, or her family, such that you might not be able to bring an objective mind to bear upon the evidence called in this trial, then you should ask to be excused. Or, if you believe, by reason of pre-trial publicity that you may have witnessed, having heard the Crown describe what the case is about, or opinions you may have formed as a result of that publicity, or what you imagine that you may know about this case or the accused, if you feel that you may thereby be prejudiced or unable to bring a dispassionate and objective mind to bear on the issue, then, again, you should ask to be excused.
So, I would ask you to carefully weigh up your position, your personal position, as you listen to the Crown, and ultimately if y ou believe that there is any risk that you may not be able to be completely objective and dispassionate and to put from your mind anything you may have heard or seen or read about this particular matter, if you should happen to recognise it, then you should ask to be excused."
122 His Honour's preliminary remarks to the jury once empanelled included the importance of not having regard to "material outside this courtroom", and -
"As I say, many murder trials in this Court are given a deal of publicity - some of it sensational, much of it inaccurate, I regret to say - before the trial eventually gets to Court, but the publicity, whether in the past or as the trial proceeds, is, as I have said more than once this morning, utterly irrelevant."
123 In the summing-up his Honour appropriately directed the jury that they should approach their task "impartially, dispassionately, calmly, objectively and reaching a result which owes nothing to prejudice or bias, reaching a decision which is not based upon sympathy, but an objective view of the evidence". The jury was told to aim at "arriving at an objective view on the evidence".
124 The jury retired to consider their verdict on Wednesday 5 September 2007. On the following Tuesday the jury was recalled for the further evidence of Mr Meagher and others and there were brief supplementary addresses and directions.
125 On Wednesday 12 September 2007 a note was received from the jury indicating that they could not reach a unanimous decision. After submissions from counsel, Kirby J gave a modified Black direction (Black v The Queen (1993) 179 CLR 44) inviting the jury to continue to consider the issues and seek to reach unanimity.
126 On Friday 14 September 2007 a note from the jury indicated that "there had been some progress in the last day", but subsequently the foreman was sworn and said that he thought it unlikely, with further deliberation, that they would come to a unanimous decision (see Jury Act 1977, s 55F(2)(b)). His Honour then gave a majority verdict direction.
127 The jury retired again at 11.55 am on 14 September 2007. A little later a note was received -
"The jury request a copy of the transcript of your Honour's 'judge's directions and comments on reasonable doubt and standard of proof'. We also foreshadow a request for your Honour to expand on these shortly thereafter."
128 Response to the note was deferred to Monday 17 September 2007. On that morning, before the jury was recalled the deal with the note, a further note was received -
"Would his Honour comment upon the relationship in law between the presumption of innocence and evidence relating to motivation and character."
129 The further note was the note on which the appellant's submissions were focussed, although they were not confined to it.
130 Kirby J invited submissions on the further note. His Honour said that it was not difficult to respond "except for the last aspect", and as to that -
"The inclusion of the word 'character', there is no evidence of character and it's irrelevance in this trial is a difficulty. My immediate reaction - and I would be interested to hear from both counsel - is to ignore it and simply say that the Crown must prove everything beyond reasonable doubt, including motivation, and so on; that is, the loan and various other aspects."
131 The appellant's counsel said -
"YOUNG: Your Honour, I suggest you answer the question without specifically dealing with it, simply by saying that all the relevant material upon which the Crown relies was led by the Crown and that's the basis of any decision they must reach in the trial, or words to that effect. Certainly not by specifically saying there is no evidence relating to character in this trial.
132 The Crown Prosecutor said that he "defer[red] to your Honour's view and also Mr Young's view. That seems to be sensible".
133 Kirby J said that he would follow that course, and there was some further discussion of what he would say with a view to balance between the Crown case and the defence case.
134 The jury was recalled, and there were further directions in relation to both notes. Kirby J repeated and to some extent elaborated on, directions concerning onus of proof, standard of proof and circumstantial evidence, specifically "the need for the Crown to eliminate any reasonable possible alternative explanation for the facts that you find proved inconsistent with guilt", and reviewed a deal of the evidence.
135 In particular, his Honour said -
"Then, to refer to your note where you asked me to comment on the relationship in law between the presumption of innocence and the evidence relating to motivation and character.
Now, the presumption of innocence and the fact that the onus is upon the Crown is really, when you think about it, a matter of common sense. If a person were to come to you and make serious allegations against someone, say that they were beating their wife, or something or other, then you would say, 'Well, what's the proof? You prove it.' And that really is what the onus is all about: the Crown has an obligation to prove it. Mr Burrell has no obligation to disprove it. He is presumed innocent, so you start with that presumption.
Now, in this case, the Crown has called the evidence it relies upon to prove its case. All the materials before you is material which the Crown has produced - apart from, I think, there are one or two exhibits tendered on behalf of the accused. So, it's that material which the Crown relies upon to discharge this onus upon it to overturn the presumption of innocence.
So, in respect of motivation, the Crown, as a matter of law, I might say, does not have to prove that the person, who is accused of the crime, has a motive. It's not one of the elements of murder that the person should have a motive.
But motive is relied upon - in this case, the alleged loan said to have been made by Dorothy Davis to Mr Burrell of $100,000, the motive is relied upon - to convince you, as one of the planks in its circumstantial case, that this was not an irrational act; this was quite a rational act on the part of Mr Burrell and this was designed to extinguish the debt. So that is one of the circumstances the Crown relies upon. But it has the onus of proving that case, just like it has the onus of proving every aspect of the case. That's what it relies upon to overturn the presumption of innocence. Ultimately, it's a matter for you as to whether or not it has succeeded in that endeavour."
136 The jury again retired, and returned with their verdict later that day.
137 An affidavit sworn by the appellant's trial counsel accompanied the appellant's supplementary written submission on Ground 2. The Crown's supplementary written submissions responded to it, from which it appears that there was no objection to the reading of the affidavit. It should be received.
138 Counsel said that he had interpreted the jury's note "to be based on the jury's presumed knowledge of the applicant's earlier conviction and life sentence for the murder of Kerry Whelan", and that he had not voiced that understanding because he had assumed that it was shared by the Crown Prosecutor and the judge. He said that he had been mindful that his Honour had made lengthy remarks to the jury designed to ensure that only persons able to bring a dispassionate and objective mind to bear upon the evidence should make themselves available for selection, and that specifically to refer to the earlier trial and then direct the jury effectively to disregard it "was likely to create greater prejudice to the applicant [sic] than that which he had already suffered from publicity of the earlier conviction".
139 I come at last to the appellant's submissions. He submitted that it was reasonable to assume that some or most of the jurors had been exposed to media publicity adverse to his character in relation to the charge that he murdered Mrs Davis, and also in relation to his trial and conviction for the murder of Mrs Kerry Whelan. He submitted that the jury's note referring to character reflected that exposure and its operation in the juror's minds, and should be seen as an acknowledgement that it was operative. He submitted that it would have been difficult, if not impossible, for the jury to have put to one side "the subconscious impact of the appellant's media profile", particularly in a circumstantial case with poorly recalled evidence of Mrs Davis' intentions and concerning the birthday lunch, and that there was a real and substantial risk that the adverse notoriety influenced the jury's decision-making. Hence, he submitted, it should be found that the trial had miscarried.
140 The appellant submitted that it was not an impediment to the appeal in this respect that the appellant's trial counsel had not sought a direction dealing with evidence of character, because a direction could not have cured the problem but would be likely to have aggravated it by highlighting in the jury's minds the adverse notoriety. Alternatively, the appellant sought leave pursuant to r 4 of the Criminal Appeal Rules -
" … to rely on the absence of a direction by the learned trial judge directing the jury to disregard any material of which they were aware relating to the appellant outside the trial, either by specifically referring to the appellant's notoriety or directing the jury that character was not a relevant consideration".
141 The appellant submitted that "the failure to respond to the issue of character raised by the jury" was such a fundamental departure from the essential requirements of the law that it went to the root of the proceedings: R v Tripodina & Morabito (1988) 35 A Crim R 183 at 195 per Yeldham J, Carruthers and McInerney JJ agreeing.
142 The Crown disputed that, in the reference to character in the further note, the jury should be taken to have had in mind adverse character of the appellant known from media publicity. The coupling of "evidence of motivation and character", it was submitted, suggested character in connection with the matters relating to motivation, for example lying to Mrs Davis about the purpose of the loan, preying upon her affection for Ms Bromley, and representing that Mrs Davis had "laundered" the money so that her children would not know. (In his address to the jury the Crown Prosecutor had suggested that the appellant had lied to Ms Bromley, Mrs Dawes and the police about the loan and was a man who was "prepared to lie about a loan to a family friend, Dorothy Davis, both before and after she disappeared", so that what he told the police as to his whereabouts on 30 May 1995 should not be believed.) It was submitted also that the jury may have had in mind the issue, raised in the cross-examination of Mr Grace, of Mr Grace's motivation to fabricate his evidence that he was told of Mrs Davis demanding repayment from the appellant.
143 The Crown submitted that, even on the understanding professed by the appellant's trial counsel, remedial action could and should have been requested, at the least by a reminder in strong terms of Kirby J's references at the time the jury was empanelled to the need to bring to bear a dispassionate and unbiased mind and to confine themselves to the evidence and ignore media coverage. It was submitted that counsel had made a forensic choice at the time, and that the appellant should not now be permitted to take a different course.
144 The Crown further submitted that it had been accepted in many cases, and should be accepted in this case, that juries obeyed directions and confined their decision-making to the evidence in the trial as instructed, even if the charge was of an offence of some notoriety. Reference was made to The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J and Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [31] per McHugh J in the High Court, and to R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 at [19]-[21] per Spigelman CJ, Simpson J and Blanch AJ agreeing; R v Crowther-Wilkinson [2004] NSWCCA 249 at [204]-[210] per Wood CJ at CL, Dowd and Kirby J agreeing; R v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11 at [152] (Hulme, Barr and Buddin JJ); R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [44]-[45] per Spigelman CJ, McClellan CJ at CL and Hall J agreeing; and Skaf v R [2008] NSWCCA 303 at [27]-[37] (McClellan CJ at CL and Hidden and Howie JJ) in this Court.
145 In this respect a recent summation, in the context of a stay application, is found in the judgment of Spigelman CJ (with whom Simpson and Price JJ agreed) in R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 -
"16 This Court has had occasion to assess adverse pre-trial publicity in a number of cases, being publicity of a character, of a duration and of an intensity which was at least equal, in many cases, to the publicity in the present case. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D'Arcy, Bruce Burrell. (See Murphy v The Queen (1989) 167 CLR 94; R v Milat (Court of Criminal Appeal, 26 February 1998, unreported); R v Bell (Court of Criminal Appeal, 8 October 1998, unreported); Long v R [2002] QSC 54; (2002) 128 A Crim R 11; affirmed on appeal [2003] QCA 77; (2003) 138 A Crim R 103; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.)