BURRELL v REGINA

Mrs Davis provides $100,000 to the appellant 15 In July 1994 Mrs Davis wrote a cheque in favour of the appellant for $500,000, which the appellant deposited into a bank account opened in his name on 8 July 1994. There were insufficient funds in Mrs Davis' account. When advised of this, Mrs Davis cancelled the cheque and wrote out a further cheque in favour of the appellant for $100,000, which was deposited in the account on 12 July 1994. The appellant withdrew $90,000 in cash from the account on 20 July 1994, and the balance of $10,000 was withdrawn in various amounts over the next six months. There were no further deposits into the account. 16 On the Crown case, this transaction was a short-term loan and the appellant killed Mrs Davis when she required repayment and he could not pay. 17 The appellant and Ms Bromley had lived in a unit at 44 Marine Parade ("No 44") until they purchased No 34 in 1994. The vendor, Ms Juliet Grimm, had been approached by the appellant or Ms Bromley in late 1993. In July 1994 she decided to live overseas, and contacted them. The price of $600,000, was agreed in July-August, the deposit of $30,000 was paid on 30 August 1994, and settlement took place on 7 October 1994. No 34 was purchased with a Westpac loan of $654,000, in Ms Bromley's name as she was the sole income-earner, which met the balance of the purchase price and paid out a pre-existing loan. The appellant did not provide any money for the purchase. 18 Mrs Dawes gave evidence that about twelve months before her mother's disappearance Mrs Davis told her that the appellant had asked her for a loan, she recalled of $300,000, to buy a house which Ms Bromley really wanted. Mrs Dawes said to her mother that it was probably alright, because Ms Bromley wanted it and had been so sick, and that it was Mrs Davis' money to do what she wanted. A little later Mrs Davis told Mrs Dawes that the appellant had come back and said he did not need as much (she recalled $150,000, but was unsure). Much later Mrs Davis said to Mrs Dawes that she had been to the new house, which could only have been No 34, and it was very nice. 19 Mrs Naida Blake, a close friend of Mrs Davis, gave evidence that Mrs Davis told her she had provided money to the appellant to help buy a house, because they wanted to get Ms Bromley in the fresh air because of the cancer. In her statement Mrs Blake said "provided" and also referred to "giving"; in her oral evidence she also said "lent". A manager at Mrs Davis' bank (Westpac) gave evidence that, speaking to her about the $500,000 cheque for which there were insufficient funds, she told him she had lent it to a friend, short term. An internal bank document referred to Mrs Davis giving the cheque "to a friend as a personal loan (short) but she forgot she had removed the money". 20 A manager at the appellant's bank (St George) gave evidence that the appellant told him the $100,000 was going to be used for a deposit on the purchase of a property near his house, and that when the $90,000 was withdrawn the appellant told him that it was being given to the vendor. The appellant said to the manager that the vendor, a lady, was waiting outside the bank, and was the lady the appellant had been sure (or hopeful) would eventually sell her house to him and who he believed would be returning to England. 21 In fact the $90,000 was not used to purchase No 34; as I have said, it was purchased with bank finance. 22 Ms Bromley had not known of the $500,000 cheque or the $100,000 cheque. At some point in late 1994 the appellant told her about the $100,000, saying that Mrs Davis had asked for his help in withdrawing a large sum of money from one of her accounts without her children finding out. He told Ms Bromley that on Mrs Davis' instructions he withdrew the $90,000 and gave it to her and for his trouble she gave him the remaining $10,000; he said that she asked him not to tell anyone about it. The appellant said to Ms Bromley not to say anything to Mrs Davis because she would be upset that Ms Bromley was told. 23 The appellant was interviewed by the police on 29 June 1995. In substance, he said that he had not spoken to Mrs Davis about a loan or about borrowing money for a deposit on a house, but that he had been asked by her to do a favour by helping her to get money without her children knowing. After the initial cheque for $500,000, he banked the $100,000 cheque and gave $90,000 back to Mrs Davis and she "left me $10,000 which was for being quiet". In a second police interview on 15 June 1997 the appellant said that he put the money in a new account rather than his joint account with Ms Bromley so that he did not have to say anything immediately to Ms Bromley. He said that Mrs Davis was the lady waiting to receive the money when he withdrew the $90,000. 24 Mrs Dawes gave evidence that about a month after her mother's disappearance the appellant came to see her, accompanied by Ms Bromley. He had telephoned to say that he had been interviewed by the police and wanted to speak to her and Mr Davis. The appellant said to Mrs Dawes that someone had told the police that he had borrowed money from Mrs Davis. He said that Mrs Davis had asked him, as a favour, to put a large sum of money in a bank account in his name and give it back "in large licks", and not to tell Ms Bromley or the children. He said that Mrs Davis gave him the $500,000 cheque, later the $100,000 cheque, and shortly after she asked him for $90,000 cash and said he could keep the $10,000 for his trouble. He said that he had not asked for more information because it was not his business. 25 Ms Bromley gave evidence of being at this meeting. While Mrs Dawes had recalled the appellant being uptight, rigid, smoking nervously with hands shaking, Ms Bromley thought he was not unduly agitated or upset. 26 In her evidence Mrs Dawes said that her reaction to what the appellant had said was that it was nonsense, as Mrs Davis managed her own finances and could have withdrawn money at any time. Mr Davis said the same, and both were not aware of a reason for Mrs Davis wanting $100,000 or $90,000. Ms Bromley had the impression that Mrs Dawes thought the money might have been intended for her, to even up financial assistance given to Mr Davis, but Mrs Dawes said that the assistance to her brother was no secret and that Mrs Davis had given her $200,000 for a holiday house at some stage. 27 Mr Grace gave evidence that in mid 1995 the appellant said that a woman in the neighbourhood had gone missing and he had been at the police station to assist the police in their inquiries, and that over the following months the appellant spoke of his association with the woman. The appellant told him that she was a good friend of Ms Bromley, Aunty Dot, and that she had provided him with some money and wanted to get it back but he didn't have the money at that time. She had threatened legal action. He had gone to her and "confronted her to effectively back off with her threats"; the appellant said he had "dealt with the matter". There was initial mention of $10,000 "but later he mentioned that she had advanced him a large sum and he was supposed to give that, part of that - most of that - sum back and he was going to retain part of the sum but he was - it was a large amount of money". 28 Mr Grace said that the appellant had little income from his work on commission. He had asked Mr Grace for an advance, and Mr Grace had given him $1,000 and arranged for the use of a petrol account. There was other evidence that the appellant had little cash resources, including analysis of bank accounts, and it is not necessary to elaborate this matter. 29 Mr Grace first told the police of these matters in 1997. He said that he had not told the police in July 1995 because the appellant said that the woman had gone missing before, she had had financial arguments with her family, and he was sure she would return. Also, he was in the middle of moving offices and a contentious divorce. He told the police in 1997 after a current affairs programme made him think of the significance of the matters. Mr Grace's credibility was challenged at the trial, on the basis that in 1997 he was motivated to involve the appellant in alleged criminal conduct from ill-will over the appellant's part in loss of a business client to a competitor, the appellant then going to work for the competitor, and in order to deter the appellant from giving evidence in litigation in Victoria conflicting with that to be given by Mr Grace. 30 On the Crown case the appellant had a motive to kill Mrs Davis so that he should not have to repay the money, which he could not repay. The appellant accepted on appeal that there was evidence going to motive which the jury was entitled to accept. This was a correct recognition of the force of the evidence, but the jury could also take into account in coming to their decision (if they concluded that there was the motive) the appellant's conduct in obtaining the $100,000 on a false pretext and giving false explanations to Mrs Bromley, the police and Mrs Dawes.

Mrs Davis sets out from No 9 31 30 May 1995 was a Tuesday. Mr Kenneth Hulse, a builder, was working on a balcony on the side of Mrs Davis' house at No 9. At about 1 pm, he being on the balcony and she being on the street near her parked car, she told him to the effect (see below) that she was going to visit a friend who had had cancer, and gestured to indicate that she was going to go down the hill. She was carrying her handbag. He saw her go down the road, towards the water. 32 I have used the words "to the effect" as a temporary generalisation. On the Crown case, the only person who conformed to what Mrs Davis said about the person she was going to visit was Ms Bromley, and Mrs Davis was setting off to walk to No 34. Precisely what was said between Mrs Davis and Mr Hulse was explored in the appellant's submissions, and I will return to the detail. In his submissions the appellant suggested a number of reasons why Mrs Davis may not have been going to No 34, both from the exploration of what was said between Mrs Davis and Mr Hulse and because of her physical condition. 33 Ms Bromley was not at No 34; she was at work. There was no direct evidence that the appellant was at No 34, or that he had made an arrangement with Mrs Davis causing her to go to No 34 in the belief that Ms Bromley would be there. The appellant's mobile phone records showed no calls to the phone of Mrs Davis' house over the period 24-30 May 1995, but there was evidence that in 1995 landline local calls to other landline phones were not captured in the service provider's records. 34 Mrs Blanche May lived at 22 Marine Parade, on the corner of Undine Street on the opposite side of the road from No 9. It was suggested in the appellant's defence that Mrs Davis may have set off to visit her. 35 Mrs May was aged 74. She had had a brain tumour, for which she had had surgery in September 1994 and hospitalisation for rehabilitation in October 1994. Her hair had been shaved for the surgery. She was hospitalised from 28 April to 7 May 1995 to investigate seizures. As at 30 May 1995 she was unable to go out of the house by herself, but could move around inside. She had not had chemotherapy. She died in June 1996. 36 However, Mrs Davis and Mrs May were not friends, and Mrs Dawes did not know of her mother knowing Mrs May. Mrs May was not listed in Mrs Davis' telephone directory. Mrs May's daughter, Ms Julie May was in constant contact with her mother, and her mother had never mentioned Mrs Davis or Mrs Davis visiting. In Mrs May's diary for 30 May 1995 she had written, "Dorothy Davis went missing - I did not know her", and she told a police officer, when shown a photograph of Mrs Davis on 29 June 1995, that she was not a friend or acquaintance and had not seen Mrs Davis. After Mrs Davis disappeared Mrs May told a neighbour, Mrs Peacock, that she had not seen her and scarcely knew her; she told Mr Davis that she had not had any contact with his mother on the day in question and they were not friends but simply nodding acquaintances. 37 A number of local residents gave evidence to the effect that they did not see or hear Mrs Davis or see any happening suggesting that she was waylaid on the way to her destination. It was suggested in the appellant's defence that a Mr Martin Meagher, who had been at the Mahon Pool on the coastal walk to Maroubra Beach around the middle of the day on 30 May 1995, could not be excluded as having had something to do with the disappearance of Mrs Davis. I will return to this also.

The phone records 38 Some indications of the appellant's movements on 30 and 31 May 1995 could be found in mobile and STD phone records. 39 At 9.05 am on 30 May there was a 30 second call from the appellant's mobile phone through a Chatswood tower to No 34. Ms Bromley often waited until peak hour traffic had subsided before going to work, and this was consistent with a call to Ms Bromley from the vicinity of the appellant's workplace. There was an 8 second call from Ms Bromley's work phone to the appellant's mobile phone at 4.28 pm, and two minutes later a call from the appellant's mobile phone through a tower at Mittagong to Ms Bromley's business number for one and a half minutes. Ms Bromley did not recall the content, but it was consistent with the appellant advising her whether he was going to pick her up. There was a call at 6.27 pm from No 34 to the landline phone at Hillydale for 8 minutes and 34 seconds; Ms Bromley said that usually there would be no one at Hillydale except the appellant in the middle of the week, and he may have told her that that was where he was going to be at that time. Calls from the appellant's mobile phone to No 34 at 8.46 pm through the Mittagong tower, 9.43 pm through a tower at Bargo and 10.16 pm through a tower at Panania were consistent with the appellant driving back from Hillydale to No 34. 40 On 31 May 1995 there were calls from the appellant's mobile phone to Ms Bromley's work phone through a tower in the Eastern Suburbs at 9.22 am, the Mittagong tower at 12.37 pm, through a Campbelltown tower at 1.29 pm and through a tower at Darling Harbour at 4.33 pm. 41 These calls indicated that the appellant drove to Hillydale and back on 30 May 1995, on the driving times in evidence leaving Sydney no later than about 3 pm and returning in the evening, and drove to Hillydale and back again on 31 May 1995. According to Ms Bromley, two close trips was unusual.

Mrs Davis was not seen again 42 Mrs Davis was not seen again after setting off following her conversation with Mr Hulse. She did not contact her family or close friends or access her bank accounts. She was in reasonable health and in good spirits, her diary had commitments for future dates, and suicide or a staged disappearance was not a realistic possibility. 43 Mrs Dawes telephoned Mrs Davis at about 5.30 pm on 30 May but there was no answer. Mr Davis went to No 9 on 31 May 1995, and in consultation with Mrs Dawes decided that their mother had gone out on a regular dinner engagement. He went again on 1 June, and became concerned because (for example) the paper was still on the front lawn. Enquiry from one of the dinner group established that there had not been a dinner. There were no signs that the house had been broken into; a piece of steak which had been taken out of the freezer to thaw was on the counter. Subsequent police examination of No 9 showed no missing items and nothing unusual. 44 After phone calls to friends and hospitals, Mrs Dawes and Mr Davis went to the police at about 1.30 pm on 1 June 1995. 45 The coastline in the region of the lower end of Undine Street had little by way of sheer drops. The rock shelf would have captured a body accidentally falling, at least until high tide. Extensive searches by police, surf rescue teams and dogs along the shoreline did not find Mrs Davis' body. Canvassing in the area brought no sightings of her.

The birthday lunch is raised 46 I have referred to a police interview with the appellant on 29 June 1995. The appellant said that Mrs Davis was not a regular visitor but had visited No 34, that he had last seen her in October-November 1994, and that he had last spoken to her by phone about six weeks earlier; it was a social conversation, and they had discussed Ms Bromley's health. He had visited Mrs Davis a few times, the last time in early 1994 to give her flowers in thanks for her kindness to Ms Bromley. On 30 May 1995 he was at the office, having arrived at 9am, and would have been there all day and usually left at 5 pm. 47 The appellant later came under greater police attention. In May-July 1997 the police searched Hillydale and surrounding forested areas. No body was found but some of the collapsed mine shafts and the cliff areas could not be examined and the forested area could not be fully searched. Further searches at Hillydale in September 2002 also did not find a body. There was no forensic evidence that Mrs Davis had been at No 34, but there was evidence that it had internal access to the garages, on the Crown case whereby the appellant could put Mrs Davis' body in his vehicle unobserved. 48 The appellant was again interviewed by the police on 15 June 1997, and I have referred to the interview in relation to the cheques. In that interview the appellant said that he did not specifically recall where he was on the day of Mrs Davis' disappearance, but he had been told by Mr Grace that Mr Grace had told the police that 30 May was his birthday and that they had been to lunch on that day. The appellant said that he did not independently recall the lunch on 30 May 1995, but he believed it had occurred because Mr Grace had told him of it. He did not remember when he started work that day or the time of the lunch. 49 In due course, after he was charged, the appellant gave an alibi notice to the Director of Public Prosecutions stating that on 30 May 1995 he was at work at Crows Nest and then at Mr Grace's 40th birthday lunch at a restaurant at Crows Nest. I will return to this also.

An overview 50 Mrs Davis totally disappeared, and there was no real dispute that she died on or about 30 May 1995. 51 The principal matters in the Crown case were - The appellant had a cogent financial motive for killing Mrs Davis, being the demand for and threat of legal action to recover the $100,000 borrowed in July 2004 on a false pretext, which the appellant had dissipated and was not in a position to repay. In this respect, the appellant's explanation for receiving the money given to Ms Bromley (and others) was inherently implausible, contrary to credible evidence and a lie. On 30 May 1995 Mrs Davis set out down Undine Street to walk to visit a friend who had cancer; only visiting Ms Bromley at No 34 answered the description she gave to Mr Hulse and the way she set out. Mrs Davis had not in fact visited Mrs May and her purpose would not have been to visit Mrs May. In the short walk, it was highly unlikely that an unknown person attacked and abducted Mrs Davis, and it could be excluded that Mr Meagher had done so; no local resident saw or heard a commotion. Misadventure such as falling onto the rock shelf or into the sea could also be excluded. The appellant did not attend a birthday lunch on 30 May 1995. The appellant caused Mrs Davis to go to No 34 thinking she would be visiting Ms Bromley, and there killed her and took her away in his vehicle or took her away in his vehicle and later killed her. No later than 3 pm on 30 May 1995 the appellant left Sydney and drove to Hillydale, returning that night, and drove again to Hillydale the next day; this was initially for transporting and then (in daylight) for disposing of Mrs Davis' body.

52 The appellant neither gave nor called evidence. The principal matters in the defence case were - There was no financial or other motive for the appellant to kill Mrs Davis, and the explanation he gave to Ms Bromley for the $100,000 was the truth. The evidence that Mrs Davis was demanding re-payment of the $100,000 came only from Mr Grace, who had not told the police of it when first interviewed in 1995 and when he told the police in 1997 was ill-disposed towards the appellant and should not be believed. Mr Hulse's evidence did not point only to a purpose of visiting Ms Bromley, but more likely to visiting Mrs May, and because of her arthritis and the claudication she would not have set out down Undine Street to walk to No 34. There was no direct evidence that the appellant caused Mrs Davis to go to No 34 thinking she would be visiting Ms Bromley, and no direct evidence that he was at No 34 in the middle of 30 May 1995. There was evidence of an alibi, the birthday lunch. Mrs Davis' body had not been found, and in particular had not been found at Hillydale. An unknown person or persons could have killed Mrs Davis, and it could not be excluded that Mr Meagher was involved in her disappearance. Nor could it be ruled out as a reasonable possibility that Mrs Davis had accidentally fallen onto the rock shelf and her body had been swept out to sea.

Ground 1: unreasonable verdict 53 The relevant test was not in contest. In Zaphir v R [2009] NSWCCA 124 at [75] the Court (McClellan CJ at CL, Simpson and Howie JJ) said - "75 As indicated above, the sole ground of the appeal is that the verdict was unreasonable and cannot be supported having regard to the evidence. The test in determining such a ground remains that stated in M v The Queen [1994] HCA 63; 181 CLR 487; see also Jones v The Queen [1997] HCA 12; 191 CLR 439; MFA v The Queen [2002] HCA 53; 213 CLR 606; Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82. That test is simply stated as whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In reaching that determination the appellate court must bear in mind the advantage held by the jury in its assessment of the evidence, having been able to observe the witnesses, and the manner in which they gave evidence. It must also make its own assessment of the evidence." 54 It must be borne in mind that the Crown case was a circumstantial case. 55 In R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 Dunford J said, after citation from the judgment of Dixon CJ in Plomp v The Queen (1963) 110 CLR 234 at 243 - "41 It is also important to bear in mind that in considering a circumstantial evidence case, it is not the individual circumstances that need to be considered, but the combination and totality of the circumstances taken together; and the jury can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference: Chamberlain v The Queen (1984) 153 CLR 521 at 536.

42 There is often a tendency in cases of this nature to consider whether each individual circumstance can be separately explained away as being consistent with innocence; or to consider whether a path, however tortuous, can be found through a combination of the circumstances, which as a matter of strict logic, is capable of being reconciled with a conclusion of innocence. The correct test, however, as explained by Dixon CJ in the passages quoted above, is whether, judging the matter rationally in the light of the common experience of human affairs, the combination and totality of the facts proved are consistent with innocence." 56 His Honour said at [44] that whether that appellant was the second person involved in the armed robbery was "essentially a question for the jury, representing, as it does, the common experience of the community … ". 57 Sully J at [2]-[3] agreed with these paragraphs, referring also to passages from the judgments of Dawson and McHugh JJ in Shepherd v The Queen (1990) 170 CLR 573; they included, in the case of Dawson J, that "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", and in the case of McHugh J, that "[t]he cogency of an inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance". 58 Recent High Court authority has affirmed that, in a circumstantial case, the evidence must be considered as a whole. 59 In R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Gummow, Hayne and Crennan JJ, with whose reasons Gleeson CJ agreed, said - "46 The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." (citations omitted) 60 Their Honours illustrated the proposition by the decision in Plomp v The Queen, and continued - "48. Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2] : 'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen .

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage , cited in Reg v Van Beelen ; and see Thomas v The Queen and cases there cited.'

And as Dixon CJ said in Plomp : ' All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done'. (emphasis added)" (citations omitted 61 In R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 Kiefel J, with whom Hayne, Heydon and Crennan JJ agreed, said at [128] that - "The approach taken by [the trial judge] is consistent with what was said in R v Hillier , namely that a circumstantial case is not to be considered piecemeal. It is of critical importance to recognise, in considering such a case, that "all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." (citations omitted) 62 In R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271 Dunford J said at [2] that he " … adher[ed] to the view I expressed in R v Micallef … at [44] that as a circumstantial case involves a consideration of the evidence in the light of the common experience of human affairs, it is essentially a question for the jury representing, as it does, the common experience of the community being comprised of men and women from different backgrounds, of different ages and with different experiences in life applying their collective knowledge of human affairs. That is not to say that there will not be cases of which Knight v The Queen (1992) 175 CLR 495 is an example (other examples are not easy to find) where an appellate court will conclude, in accordance with the principles enunciated by the High Court in M v The Queen (1994) 181 CLR 487 that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; but I am satisfied that this is not such a case." 63 Howie J also said at [86] that he - " … doubt[ed] that, with respect to a circumstantial case depending exclusively upon the jury's ability to assess the conduct of persons by applying their commonsense and experience of life, this Court and the jury stand in an equal position as finders of fact. This is because I am concerned that the Court should pay due deference to the combined experience and commonsense of the members of the jury in a case such as the present, which was one quintessentially for a determination by ordinary citizens in the community. However, I do not need to reach any firm view upon this point, or to determine whether such a consideration is inconsistent with the principles stated by the High Court for the resolution of this type of ground of appeal, because I do not have a doubt about the guilt of the appellant." 64 In Chahine v R [2006] NSWCCA 179 Johnson J, with whom McClellan CJ at CL and Hoeben J agreed, said [88] that the jury's advantage in considering a case based on circumstantial evidence should be borne in mind, and took up from R v Kaldor that "the jury brings to consideration of a circumstantial case the common experience of members of the community comprising men and women from different backgrounds, of different ages and with different experiences in life, who apply to the case their collective knowledge of human affairs and their common sense". In Halmi v R [2008] NSWCCA 259 Johnson J, with whom Campbell JA and Grove J agreed, referred at [76] to R v Kaldor and R v Chahine and repeated these words; see also BJR v R [2008] NSWCCA 43 at [97] per Latham J. 65 This Court must make its own assessment of the evidence. But the assessment is of the cumulative effect of the evidence, and with due regard to the common experience of human affairs and common sense brought by the jury to their determination of guilt or innocence. 66 The appellant said in his written submissions, which were but briefly developed in oral submissions - "31. The appellant submits that, having regard to all the evidence, it was not 'open to the jury to be satisfied of the appellant's guilt', for four reasons; firstly, even putting the alibi evidence to one side, the evidence was incapable of establishing beyond reasonable doubt that Davis attended the appellant's house on 30 May. Secondly, the prosecution was unable to eliminate a reasonable possibility that, at the time in the prosecution case the appellant was supposed to be at his house to receive Davis, he was at a lunch in the Crows Nest area with work associates, and thereafter drove directly to Hillydale. Thirdly, the impact on witnesses' memory of the twelve-year lapse of time since the events in question was such that critical prosecution evidence in relation to these first two issues in particular was unreliable, and that unreliability impacted unfairly on the appellant. Fourthly, the pre-trial publicity that was adverse to the appellant's character was so significant that, in a circumstantial case such as this one, its subtle effect on the minds of the jurors when drawing inferences from the evidence was such that one would have real concern that those inferences were not infected with prejudice." 67 The fourth reason became ground 2, and I will deal with it separately. The third reason was taken up by the appellant as an adjunct to the first and second reasons, although the lapse of time should be borne in mind more generally. 68 The appellant's approach rather departed from that appropriate to a circumstantial case, tending to take the two matters of setting out for No 34 and whether the appellant was at a birthday lunch in isolation, rather than as part of the circumstances as a whole from the cumulative weight of which guilt was to be found. As I have said, the Court's assessment must be of the whole of the evidence.

(a) Setting out for No 34 69 The appellant said that there was no evidence of an arrangement for Mrs Davis to visit Ms Bromley or go to No 34, including that the appellant's mobile phone records did not include a call to Mrs Davis; that there was no direct evidence or forensic evidence tending to confirm Mrs Davis's presence at No 34; and that there was no direct evidence that the appellant had been at No 34 at any time between the phone call through the Chatswood tower at 9.05 am and the phone call through the Mittagong tower at 4.30 pm. These were valid points, but landline records for a call from No 34 to Mrs Davis' house were not available and searches at No 34 were not undertaken proximate to Mrs Davis' disappearance. 70 The appellant then submitted that Mrs Davis did not say to Mr Hulse that the intended visit, to whomever it was, had been pre-arranged, and that what she said was consistent with a spontaneous visit on Mrs Davis' initiative. He submitted that Mrs Davis' stated purpose did not conform to Ms Bromley being the friend she was to visit, that Mrs Davis would not have gone to No 34 by walking downhill along Undine Street, and that Mrs May better fitted as the friend to be visited. 71 I go first to what Mrs Davis said to Mr Hulse. I have said that Mrs Davis told him to the effect that she was going to visit a friend who had had cancer, but that generalisation received greater analysis in the submissions. 72 In his evidence in chief Mr Hulse said - "Q. Would you tell us what she said and what she did? A. She was going to visit a friend that's had - or got cancer, and she was going on walk around there because it wasn't far. … Q. Yes. Do you remember anything else she said about where she was going? A. She was going down the hill. I think - no - no. Q. As best you can recollect, what did she say about where she was going? A. She's going to visit a friend that's had cancer. Q. That has had cancer, did she say? A. And she had chemo, and I can't remember anything else. Q. Did she say it was a male or a female? A. A female friend, yes. Q. Who had had cancer? A. Yes. Q. And had chemo? A. Yes. Q. Did you, when she said that -- A. No, I said to her something like, "Did she lose all her hair?", and she said "Yes, she did"; that's when she said she'd had the chemo. Q. Did she indicate to you in any way where she was going? A. I was up on the top and she was outside; she said that she was going to walk, she didn't need the car because it wasn't far, and she waved like that (demonstrated), saying she was going to go down the hill. Q. And -- A. And she was walking down there. Q. Can you tell us which direction she indicated? A. She indicated - if I was at house, she indicated to me that she was going to go down the hill to the right, if I was at the house looking outwards. Q. Now, you know there's the sea at the end of the street? A. Yes. Q. Was she indicting towards the sea or away from the sea? A. Down towards the sea -- Q. Did she indicate whether -- A. - with a wave. Q. Sorry? A. She waved to me. Q. Yes? A. It's more like a gesture to say 'I'm going this way', you know." 73 In cross-examination Mr Hulse was asked whether, when he was first spoken to by a policeman, he said that he was told "that she was going to visit a friend nearby who had just got out of hospital". He agreed that he remembered Mrs Davis using those words "or very similar to that maybe". He said that he "wouldn't have said that if she hadn't told me". A police officer later gave evidence of an entry in a police document, not in evidence, incorporating that as information provided by Mr Hulse. 74 Mr Hulse was also asked whether he had asked whether the person had had chemotherapy or whether Mrs Davis had first referred to chemotherapy. He was at first unsure, but came to say that "it was I who said she had the chemo". 75 There was then further examination in chief. Mr Hulse was taken to a police statement made on 1 June 1995, and agreed that it recorded that he was told "she was going to visit her friend that had cancer" and recorded nothing about the friend having just come out of hospital. He was taken to a police statement made on 6 June 1995, in which his account of what he was told was to the same effect as he had said in his evidence in chief. He was taken to a record of evidence given at an inquest in 2002, in which the account was that he was told that Mrs Davis was going to visit a friend "because she's just got, got over cancer", he asked whether the friend had had chemotherapy and had lost her hair, and Mrs Davis "told me she'd lost her hair". In neither the 6 June 1995 statement nor the inquest evidence did the account refer to the friend having just got out of hospital. 76 Mr Hulse was then asked by the Crown Prosecutor - "Q. Mr Hulse, do you now have any clear recollection, having had read to you the versions that you gave to the police and to the inquest, do you have any clear recollection whether or not Mrs Davis said that her friend had just got out of hospital? Do you remember now? A. Hmm - I think she did tell me that because otherwise I wouldn't have said it. Q. Now is it contained in any document that you've created? A. It might have been slightly different terminology, though you just maybe added something. Q. What sort of terminology do you think? A. Well, if you say one thing and then mean another, but it is on the same sort of lines, you know what I mean. Q. No, I am sorry, I don't understand what you mean? A. Oh. Q. Do you remember what the words were that Mrs Davis used? A. I only recollect what was in the statement. Q. But the statement doesn't have anything -- A, No. Q. - about her saying that her friend had just got out of hospital? A. No. Q. Did she say that her friend had been in hospital at some stage? A. Maybe that's what it was, but I can't recollect that now. Q. Do you remember now whether she said that her friend had been in hospital or had got out of hospital or just got out of hospital? Are you able to say when? A. Yes. Q. Whether any of those versions are correct? A. She had been in hospital or had got out of hospital or just got out of hospital? That's as far as I could assume that. Q. You assumed that? A. Well, if she had had the chemo she must have been in hospital. Q. Did you assume that if she had chemo she must have been in hospital? A. Yeah. Q. Have you heard of people having chemo otherwise than in hospital? A. No. ' Q. Never heard of it? A,. What, having it outside of hospital? Q. Yes. Do you think it is possible that you have assumed that -- A. Yeah. Q. - that's what she meant? A. Probably, yeah. I probably assumed that she'd been in hospital, yeah. Q. Did you assume that she had just got out of hospital? A. Yeah. Q. Why did you assume that? A. Because she'd just got over chemo, hasn't she, I thought that. Q. Is that what you thought? A. Yeah. Q. Did Mrs Davis say to you that she had had had [sic] chemo? A. She must have done otherwise I wouldn't have known. Q. Did she say to you, "My friend has had chemo" or did she say, "My friend has just had chemo"? A. I can't recollect which one it was. Q. You can't remember which of these versions? A. No. Q. Is it possible that she said to you, "My friend has had had [sic] chemo"? A. Possible, yeah. Q. Is it possible that she said, 'My friend lost all her hair'? A. Yes. Q. Is it possible that she said, 'My friend has had cancer'? A. Yes." 77 There was further cross-examination of Mr Hulse. He was invited to agree that a record of what he said at the time was best, which brought a form of agreement, "But if I've said it and it is on the forms. … That's what I've put down, isn't it?" He appeared to affirm that he would not have said he had been told the friend had just got out of hospital unless he had been told it, and to agree that he had "no reason to doubt, as you sit there now", that he was told it, although some answers were recorded in the transcript as "Hmm" and "Uh-huh". 78 The appellant submitted that the intended visit could not have been to Ms Bromley, because she had not just got out of hospital; her periods of hospitalisation had ended in August the previous year. Mrs Davis would have known of that, having attended the celebratory dinner. While Ms Bromley had lost hair, she had said in her evidence that she was not sure that Mrs Davis knew of it. At least some of Mr Hulse's evidence, the appellant submitted, was consistent with a friend who currently had cancer, and Mrs May answered that description. Further, Mrs May's hair had been shaved off for the surgery, she had recently been in hospital, and she could have been expected to be at home whereas Ms Bromley could have been expected to be at work. While Mrs May had not had chemotherapy, on some of Mr Hulse's evidence he rather than Mrs Davis had first mentioned chemotherapy and Mrs Davis' response was only that the friend had lost her hair and not that it was due to chemotherapy. 79 Against this, the Crown submitted, Mrs Davis and Mrs May were not friends, and at best were nodding acquaintances, and there was no evidence that Mrs Davis knew or was likely to have known of Mrs May's state of health and particularly that she had recently been hospitalised. Their common acquaintance, Mrs Peacock, knew that Mrs May had been ill but not the nature of the illness, and did not know that she had lost her hair or at the time that she had been recently hospitalised. Mrs Davis described the person she was to visit as a friend, and even if Mr Hulse had first raised chemotherapy Mrs Davis' response conveyed that the friend had had chemotherapy causing the loss of hair. If Mr Hulse had initially told the police that the friend had just got out of hospital, in the light of the more detailed statements he made shortly afterwards that was just a generalisation, and as he at one point in his evidence accepted an assumption. 80 Even as a visit to a nodding acquaintance, and even assuming knowledge of ill-health, the Crown submitted that a spontaneous visit to Mrs May was most unlikely. It was submitted that Mr Davis and Mrs Dawes said that only Ms Bromley fitted the description of a female friend who had had cancer, with chemotherapy and loss of hair. 81 I go then to walking to No 34. 82 Mr Davis and Mrs Dawes gave evidence that, because of her arthritis, Mrs Davis walked only where it was flat and did not like stairs or steep slopes, and that she did not have the breath for strenuous walking. 83 The appellant submitted that it was unlikely that Mrs Davis would have visited Ms Bromley by walking downhill along Undine Street and then to the right by the pedestrian access along Marine Parade. The pedestrian access was described by Ms Bromley as a grassed area, and as "some tree or other shrubby area that you sort of had to walk through"; the ground was "uneven", and there was "a worn sort of path just because of the people that used to walk through there" (as part of the coastal walk). If Mrs Davis had walked, the appellant submitted, she would not have taken a route which required walking the uneven pedestrian access, and would have taken the easier route of Banks and Wilson Streets on the other two sides of the block. But, the appellant submitted the likelihood was that she would not have walked, but would have driven in her car, so that she would not have had the uphill walk back from No 34. The appellant pointed to Mrs Dawes' belief that, because of Mrs Davis's arthritis and the condition of claudication, her mother would have acted in one of these ways, a belief up to a point expressed also by Mr Davis although he (and also Mrs Peacock) thought his mother could have walked down Undine Street and around to No 34. The appellant pointed also to Ms Bromley's evidence that, when she and the appellant were living at No 34 about 100 metres further away from No 9, Mrs Davis drove when she visited them on a couple of occasions. 84 The appellant submitted that walking down Undine Street to Mrs May's house was, however, within Mrs Davis' capacity, and was the sensible way of getting there. Mrs Davis had not in fact seen Mrs May, but the appellant suggested that a spontaneous visit could have been frustrated because the doorbell was not working - Ms Julie May said that it sometimes did not work, and Mrs May's diary referred to a failed attempt to fix it on 1 June 1995. A security door made it difficult otherwise to attract Mrs May's attention. 85 Thus, the appellant submitted, there could not be excluded as a reasonable possibility that Mrs Davis had intended to visit Mrs May as the person who had cancer and had just got out of hospital, and had set out to visit Mrs May but had been unable to attract her attention, and had been waylaid by a person or persons unknown (perhaps for her handbag); he said that strangers could be expected on the coastal walk, or perhaps fishing. Mrs Davis' body may have been pushed onto the rock platform and taken out to sea at high tide, or put into the sea and taken out to sea, before the searches were made. 86 A number of points were made by the Crown in response to the submissions. The opinion of Mrs Davis' doctor was that she would be unlikely to be able to walk two or three hundred metres up a steep hill without periods of rest, and would experience cramping sensations in the legs. The distances were greater than those in question, the steepness was unexplained, and it could be done with periods of rest. As the appellant acknowledged, this opinion was of limited value. Visiting Mrs May involved walking back up the steeper Undine Street, essentially the walk which, on the appellant's submissions, Mrs Davis would have avoided by taking her car. Ms Bromley said that the pedestrian path was "not difficult", its description by no means precluded careful negotiation by Mrs Davis, and there was evidence that she was "quite active" (Mr Hulse), led an active social life, did her own shopping and "endeavoured to keep as active as possible so that she took opportunities to do easy walks" (Mr Davis). The Crown submitted that, save for avoiding steep walks, Mrs Davis' frailty should not be overstated, and that she could have intended to walk back via Wilson and Banks Streets or could have been promised a lift back by the appellant. 87 Further, the Crown submitted, if Mrs Davis had not been able to attract Mrs May's attention because the doorbell was not working, she would have returned to No 9. Her journey would have been entirely within Undine Street, an unlikely scenario for a stranger to waylay her. 88 The jury were taken on a view at Lurline Bay, including traversing the route from No 9 downhill and to the right to No 34, the access to Mrs May's house, and the surrounding Banks and Wilson Streets; they were also taken to Mahon Pool next mentioned The pedestrian terrain was not as it had been in 1995, there had been other changes from 1995, and the differences were explained. We were taken on a view intended to replicate in these respects the view on which the jury were taken. 89 It is convenient at this point to refer to Mr Meagher, who on the defence case at the trial "could not be rule[d] out as an alternative explanation", although that was not prominent in the appellant's submissions on appeal. 90 Mr Meagher had a chloroform sniffing habit. On the morning of 30 May 1995 he was at Mahon Pool, some distance from Undine Street around the point. His behaviour at the toilets caused the police to take him to Maroubra Police Station. He left the police station at "about midday", returning by taxi to Mahon Pool where his motor bike was parked. He sniffed the rest of his chloroform and then rode to the Captain Cook Hotel, where he remained until the evening. The hotel manager, to whom he was known, said he arrived "sometime around 1 pm", but Mr Meagher thought that he arrived at about 2 pm or 2.30 pm. 91 Mr Meagher was an alcoholic and had a criminal record for matters such as drunkenness and assault when affected by alcohol. Sniffing chloroform made him feel pleasant and did not make him aggressive. He said that he had never walked around Marine Parade to where No 34 was, and that he had nothing to do with the disappearance of Mrs Davis and specifically that he had not attacked her or robbed her of her handbag. 92 A new matter arose while Kirby J was summing-up at the conclusion of the trial. 93 As a result of something reported to his Honour, a tea lady, Ms Patricia Abbey, was called and gave evidence that in the tea room Mr Meagher had said that he had seen an old lady down near the beach, or in the park, around the time he was picked up by the police near the toilets. The evidence was very confused, and Ms Abbey agreed that she had "psychiatric issues" and sometimes difficulties with her memory. A "court watcher", Mr Dennis Roberts, gave evidence that Ms Abbey had told him that Mr Meagher had said that he had been talking to Dorothy Davis in the park (he mentioning the name), who had been carrying a white handbag. Mrs Dawes gave evidence that her mother did not own a white handbag. A police officer gave evidence that Ms Abbey had told him that Mr Meagher had said he was worried that "they" might be thinking he had seen the old lady near the toilets, but had not said what the old lady's name was 94 Mr Meagher was recalled, and gave evidence to the effect that he had felt he was under suspicion, he had said to a tea lady that he was concerned and asked what was going on, he was told "If they thought it was you, you would be in handcuffs", and that he had not told the tea lady that he had seen an old lady near Mahon Pool and had not seen an old lady there. He said, "I didn't tell her [the tea lady] anything. I asked her what was going on."

(b) At a birthday lunch? 95 On 3 July 1995 the police asked staff at Mr Grace's business about the appellant's movements on 30 May 1995. According to the note made on a running information sheet - "[Mr Grace] informs Police that Bruce BURRELL attended work on Tuesday 30 May 1995. GRACE recalls the date because it was his birthday and BURRELL 'gave him a hard time about his age'. GRACE, his girl-friend Julianne KEENE [sic], and BURRELL left the office about 12.30 pm on 30 May 1995 and went to The Sentosa Restaurant at 10 Clarke Street, Crows Nest for a birthday lunch for GRACE. The three of them left the restaurant about 3.30 pm that afternoon and returned to the office. GRACE recalls that Bruce BURRELL left the office between 4.30 pm and 5 pm. Julianne KEENE … was spoken to and she recalls the birthday lunch for GRACE held on Tuesday 30 May 1995. She confirms that she was present at the restaurant with GRACE and BURRELL, leaving the office between 12 md and 12.30 pm and returning to the office about 3.30 pm. She recalls that BURRELL left the office about 5pm." 96 As I have mentioned, when interviewed on 15 June 1997 the appellant said that he did not recall being at a birthday lunch for Mr Grace, but believed he had been at one because Mr Grace had said so. 97 The police officer who entered the information on the running sheet had no independent recollection, but said that he would have made contemporaneous notebook entries and made the entry from them and stood by "the accuracy of what was recorded". 98 However, there was much other evidence in relation to the birthday lunch. Mr Grace said that he told the police of a lunch at Crows Nest, but that he told them he was unsure of the day. He said that he offered to check, but was told not to bother. Mr Grace recalled a birthday lunch, but could not recall whether it was on his birthday (which was 30 May). It might have been the next day or the day after that. He recalled Ms Julie-Anne Keane trying to arrange the lunch at the Sentosa Restaurant and wanting to include the appellant. He also said there was also a separate function for his birthday at a restaurant at Church Point. Others at the birthday lunch were Ms Keane, Mr Mat Ellis, Ms Monique Bushby and Mr Sean Buckley. (Ms Keane worked in the business and was then in a relationship with Mr Grace; Mr Ellis and Ms Bushby were employees in the business; Mr Buckley's company was a major client of the business, the client later lost to a competitor as earlier mentioned.) The lunch was from about 1 pm to about 3.05 pm. Mr Grace said that Mr Buckley paid for the lunch using his credit card, which he (Mr Grace) at the time thought was generous. He recalled the car towing incident to which I next refer. Ms Julie-Anne Slinger, formerly Keane, recalled a birthday lunch for Mr Grace at the Sentosa Restaurant but not whether it was actually on his birthday. She recalled Mr Buckley's car being towed away from a clearway at 3 pm or 3.30 pm after the lunch and the appellant intervening to save that from happening. In her statement she had said that the appellant was not present at the lunch, but from the recollection of the car towing incident said in her oral evidence that she thought it likely that he was. She also remembered the separate birthday function at Church Point. A statement of Mr Ellis was tendered, in which he said that he had attended a number of lunches, mainly at the Sentosa Restaurant, and recalled the appellant being at a few of them. He recalled a lunch for Mr Grace's birthday, but not the date or where it was. Ms Felicity Walsh, also an employee of Mr Grace's business, was thought by Ms Slinger to have been at the Sentosa Restaurant birthday lunch. Ms Walsh recalled a birthday lunch for Mr Grace in 1995, but not at the Sentosa Restaunt; it was at a Chinese restaurant. She could not recall whether it was on Mr Grace's birthday or another day. She thought, but was not sure, that the appellant was present. A statement of Ms Melinda Sides was tendered. She worked for Mr Buckley's company. She recalled a lunch with Mr Grace, Ms Keane, the appellant and Mr Buckley, at an Asian restaurant following a business meeting. It was not a birthday lunch. She could not recall the date. When she and Mr Buckley left, at about 4 pm, the others were still at the restaurant. Mr Buckley said that he had been invited to a birthday lunch for Mr Grace, but had not attended. He had been to two lunches at which the appellant was present. One was at the Sentosa Restaurant, to discuss advertising, for which he paid on a credit card; he identified a credit card record for payment at the Sentosa Restaurant on 28 July 1995, which accorded with his recollection. Records of the Sentosa Restaurant were tendered consistent with this. There was no credit card record for 30 May 1995, and no record of payment by Mr Buckley by credit card on any other occasion. The other lunch was three or four months later at a French restaurant. When reminded, Mr Buckley recalled an incident when his car was about to be towed away and the appellant intervened, and said it could have been the day of the first lunch or another time. In cross-examination Ms Slinger said that the lunch which Mr Buckley said he attended was possibly a "birthday lunch" because he had been unable to come to an earlier celebration - it was, to him, a delayed birthday lunch. 99 The appellant submitted that "[t]he evidence touching on the question of an alibi was strong as to the appellant having attended a birthday lunch for Grace, but it was not conclusive as to the date of that lunch". The issue posed by the evidence was wider: was there was a birthday lunch on 30 May 1995 attended by the appellant? 100 In the summing-up Kirby J carefully summarised the evidence concerning the alibi, and instructed the jury that they must be satisfied beyond reasonable doubt that "the alibi evidence" should be rejected. He referred to bearing in mind that the witnesses were giving evidence twelve years after the event, although sometimes with the aid of statements earlier made. He concluded this part of the summing up - "Now, it is fundamental to the Crown case, as I said before, that Bruce Burrell was at 34 Marine Parade to receive Dorothy Davis when, as the Crown asserts, she walked to that address from her home. The Crown cannot succeed if there is a reasonable possibility that the accused was elsewhere; that is, a reasonable possibility that he was at a birthday lunch for Peter Grace during the lunch hour on 30 May 1995. So the issue for you is whether, on the evidence, you are satisfied that the Crown has eliminated beyond a reasonable doubt the presence of Bruce Burrell at such a lunch on 30 May 1998." 101 The appellant's initial advice to the police that he would have been in the office until 5pm on 30 May 1995 was contrary to the mobile phone record suggesting that he was within the Mittagong tower's area at 4.30 pm. He would have to have left Crows Nest no later than about 3 pm in order to be within that area. Similarly, the information in the running sheet was wrong insofar as Mr Grace and Ms Keane said that the appellant left the office at about 4.30 pm - 5 pm. While Mr Grace recalled a birthday lunch at the Sentosa Restaurant at which the appellant was present, from Mr Buckley's evidence and the credit card record (and Mr Grace remembered Mr Buckley paying) that lunch was not his birthday lunch, but was on 28 July 1995. From the car towing incident, Ms Slinger must have been recalling the same lunch and confusing it with a birthday lunch. So the Crown submitted, and it was submitted that (with regard also to other matters in the circumstantial case) it was open to the jury to be satisfied beyond reasonable doubt that the appellant had not been at a birthday lunch on 30 May 1995.

(c) The passing of twelve years 102 The appellant submitted that, as was evident from the evidence given by Mr Hulse and the varied evidence given by a number of witnesses concerning the birthday lunch, time had affected memories on these important matters, and that unreliability of the evidence of critical witnesses through the lapse of time "impacted unfairly on the appellant" (see at [66] above). He did not greatly elaborate. The Crown submitted in response that many witnesses had given information to the police or made police statements shortly after 30 May 1995, particularly referring in the case of Mr Hulse to his statements of 1 June and 6 June 1995, and that what they had then said was available to the jury to assist in overcoming the effect of time on memories as at 2007. 103 Frailty of memory is part of life, and of criminal trials. The jury could not but have been aware of, and had regard to, the passage of time in coming to their satisfaction beyond reasonable doubt of the appellant's guilt. The passage of time, indeed, had the potential to operate to the appellant's advantage, for example enabling the exploration of Mr Hulse's evidence of what was said by Mrs Davis to cast doubt on its strength in the Crown case. 104 As no doubt the jury did, in this Court's assessment of the evidence the passage of time is to be borne in mind, but as one matter only in coming to a decision on the question for the Court. 105 It is now necessary to determine, in accordance with the principles earlier outlined, whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. It should be repeated that the determination is to be made upon the whole of the evidence, considering the combination and totality of the circumstances and their cumulative weight; so, for example, the weight to be given to Mr Hulse's evidence upon analysis such as that undertaken by the appellant, or the effect of the varied evidence of the witnesses concerning the birthday lunch, is not to be considered in isolation. Further, in the present case the jury's experiences of life and their collective knowledge of human affairs and common sense should be particularly recognised in their assessments of witnesses giving evidence many years after the relevant events and their fact-finding in a circumstantial case. Resolving discrepancies or conflicts in the evidence and making inferences were tasks for the jury in the exercise of those qualities. 106 I have sought to explain the considerations exposed in the submissions for the appellant and for the Crown; in a lengthy trial there was of course evidence to which I have not specifically referred, or have referred only in summary form. The appellant submitted that the Crown case did not rise above evidence of motive, some limited evidence of opportunity, and evidence of the appellant's movements that may have been consistent with a theory of disposal of Mrs Davis' body. Referring also to the passage of time and the pre-trial media publicity to which I will come, he submitted that the jury was not in an advantageous position in resolving uncertainty and ambivalence in the evidence of Mr Hulse and of the witnesses concerning the birthday lunch, and that there was a significant possibility that the appellant had been wrongly convicted. 107 I do not agree, and in my opinion, the ground of appeal should not be upheld. Given the evidence of motive, the central issue was whether Mrs Davis had set out from No 9 to visit Ms Bromley at No 34, providing a link with the appellant on 30 May 1995 in conjunction with his trips to Hillydale. It was well open to the jury to be satisfied that Mrs Davis' purpose was to visit Ms Bromley, not to visit Mrs May or some other purpose, and that she had not been waylaid by Mr Meagher or an unknown stranger. As to Mr Meagher, the jury was entitled to regard it as fanciful that Mrs Davis would have walked to Mahon Pool, and to take the view that it was not a reasonable possibility that Mr Meagher had otherwise done away with Mrs Davis. Further, in exclusion of the alibi it was open to the jury to be satisfied that the appellant had not been at a birthday lunch on 30 May 1995. In all these respects regard must be had to all the matters making out a circumstantial case. 108 In my opinion, on the evidence as a whole the jury could be satisfied beyond reasonable doubt of the appellant's guilt, and on my consideration of the whole of the evidence I am not persuaded that there is a significant possibility that the appellant was wrongly convicted.

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.)

17 I have had occasion to summarise the relevant case law in the following manner, applicable to the present case, in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344: '[103] There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.'

18 There are now numerous judicial statements as to the validity of such an approach.

19 Going back, for example, as Gleeson CJ said in R v VPH (Court of Criminal Appeal, 4 March 1994, unreported) at 7: 'The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character.'

20 Furthermore, as McHugh JA said in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at 425: '[31] … Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.'

21 The perspective that jurors properly perform their task, are true to their oaths and comply with a trial judge's directions has repeatedly been applied in appellate courts over recent years. (See R v Milat ; R v Bell ; Long v R ; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko ; R v D'Arcy ; R v Burrell supra.)" 146 The case of R v Burrell [2004] NSWCCA 185 to which the Chief Justice referred was concerned with the appellant's trial over the disappearance of Ms Whelan. As I have said, there was no appeal from the rejection of the stay application made in July 2007 in the appellant's trial for the murder of Mrs Davis. 147 So far as the appellant's submissions involved the jury's note referring to character, the question is not identical with that in a stay application based on adverse pre-trial publicity. The substance of the appellant's submissions in this respect was not just that the jury might be swayed from determination of guilt only on the evidence before them. It included that the note, showing interest in the relationship between the presumption of innocence and evidence relating to motivation and character, revealed that the jury did have in their minds a prejudicial view of the appellant's character gained from his notoriety; as earlier described, it was an acknowledgement that the exposure to media publicity was operative. Perhaps not expressly, the appellant should also be taken to have relied on his trial counsel's perception, stated in the affidavit, that the note was "based on the jury's presumed knowledge of [the appellant's] earlier conviction and life sentence for the murder of Kerry Whelan." 148 I do not accept that view of the jury's note. The terms of the note were not consistent with the jury going beyond the evidence. The expressed interest was in the relationship between a legal notion, the presumption of innocence, and "evidence relating to motivation and character". Relevantly, the jury referred to evidence relating to character, not a view of character gained from media publicity. That appears to have been the way Kirby J understood it, because his Honour's immediate reaction was that there was no evidence of character and it was an irrelevance. Counsel did not voice a different understanding. 149 I doubt the Crown's submission concerned with Mr Grace's motivation, since it is difficult to relate his motivation to the presumption of innocence, but the Crown's first submission is a ready explanation for the jury's enquiry. It was well within the jury's reasoning to come to a view, from the evidence, of the appellant's character in conjunction with his motivation. There was other evidence capable of being thought to cast light on the appellant's character, such as Mr Grace's evidence that the appellant expressed annoyance at the lady's temerity in asking for her money back, and Ms Bromley saying that the appellant was a very volatile person. 150 In this view of the jury's note, the rejection of the "previous tendency to regard jurors as exceptionally fragile and prone to prejudice" of which the Chief Justice spoke in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; [2004] 61 NSWLR 344 at 366, part of the passage I have set out from R v Jamal, remains of significance. The jury had been told in no uncertain terms that media publicity should be put aside, and that they should come to their decision solely upon the evidence. It is not lightly to be thought that the jury disregarded these directions, and made their disregard obvious, in asking a question founded on taking account of media publicity; and as I have said, the terms of the note are against that construction of it. 151 So far as the appellant's submissions were more generally that the trial miscarried because of the media publicity, it should be repeated that there was and is no appeal from the rejection of the stay application. There had been considerable media publicity, but its intensity had been well in the past. I am not persuaded that it was such that, particularly with the careful directions they were given, there was a real risk that the jury departed from their oaths and did not come to their decision only on the evidence before them. 152 In my opinion Kirby J dealt appropriately with the jury's note, and I do not accept that there was a miscarriage of justice as submitted by the appellant. In relation to the submission that his Honour should have directed the jury "either by specifically referring to the appellant's notoriety or directing the jury that character was not a relevant consideration", if at the time the appellant's counsel had the perception described in his affidavit he had to make a forensic choice. He could have asked for one or other of the directions, or he could have eschewed any direction lest adverse character be made more prominent. Counsel expressly did not want the jury to be told that there was no evidence relating to character. The reason given in counsel's affidavit is clear and readily understandable, and explains why no such direction as is now suggested was then sought. The sound forensic decision should not be disregarded, and leave under r 4 should not be granted.

The result 153 I propose that the appeal be dismissed. 154 HOWIE J: I agree with Giles JA. 155 BUDDIN J: I agree with Giles JA. **********

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