Regina v Bruce Allan Burrell

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: Since 29 January last, when the accused was formally indicted in this Court, some twelve hearing days have been spent in receiving evidence in connection with a succession of hearings on the voir dire. Three and a half further days have been spent in receiving oral submissions in connection with those hearings. The hearings have proceeded against a general background which I described, sufficiently for present purposes, in an earlier ruling delivered on 6 February last. 2 The effect of the ruling of 6 February is that it has been found by the Court that two particular pieces of evidence which the Crown wishes to lead at trial were obtained illegally or improperly in the senses contemplated by section 138 of the Evidence Act 1995 (NSW), ("the Act"). It follows that the Crown, if it is to have each of these pieces of evidence admitted, must establish on the probabilities "that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained": see section 138(1) of the Act. 3 The accused contends that each such piece of evidence, should the Court be minded to find in favour of the Crown on that section 138(1) balancing exercise, should be excluded nevertheless by reason of the operation of section 137 of the Act. The accused bears on that issue the onus of proof on the probabilities. 4 As to each of the further particular defence challenges as to which a hearing on the voir dire has been granted, the accused bears the onus of proof on the probabilities. 5 It will be necessary to rule in due course upon each in particular of the evidentiary issues thus arising. Before it is possible to do that in any coherent kind of way, it is necessary to say something about: first, the relevant facts; and secondly, certain important and relevant matters of legal principle. 6 As to the relevant facts, I have received from the Crown two documents. One is entitled "Crown Case Statement"; and the other is entitled: "Outline of Major Aspects of Circumstantial Case". These documents set out, - the former in narrative form and the latter in point-summary form, - the essential structure of the case that the Crown proposes to set up at a trial by jury. I shall proceed for present purposes upon the assumption that matters of fact which are asserted in those documents, and which are in substance unchallenged in the present voir dire hearings, can be taken as being correct. 7 For ease of reference I shall have appended to the formal engrossment of the present rulings a copy of each of those two Crown documents. 8 As to the relevant matters of legal principle, it is convenient to note the following:

(1) At a criminal trial, whenever the admissibility of proposed Crown evidence is challenged by the defence, and such challenge is based upon either section 137 or section 138 of the Act, it becomes the duty of the trial Judge to determine the particular issue of admissibility by means of a balancing exercise, the components of which exercise are defined specifically, but differently, by each of those two sections.

(2) In the case of each of those statutory balancing exercises, one matter prescribed for consideration by the Judge is described in each section as "the probative value" of the challenged evidence.

(3) The statutory expression "probative value" has a specific statutory definition which is to be found in Part 1 of the Dictionary, so described, that forms part of the Act. The definition reads: " Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

(4) That definition is broadly similar to, but is not the same as, the definition, to be found in section 55(1) of the Act, of relevant evidence in a proceeding. That definition of relevance reads: "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings."

(5) A comparison of the two aforesaid definitions entails, in my opinion, that a decision concerning the "probative value" of a particular piece of evidence entails a consideration of two related questions, namely:

(a) Is the piece of evidence relevant at all in the section 55(1) sense? If it is not, then its "probative value" in the Dictionary sense is necessarily: nil. If it is relevant at all, then it is necessary to ask:

(b) What is the extent, or the degree, of such relevance?

(6) When a particular piece of challenged evidence is once accepted as being relevant at all, then it becomes necessary to establish a correct approach in principle to the assessment of the extent, or degree, of that relevance.

(7) In such a case as the present one, where the Crown case is in every significant respect a circumstantial evidence case, the aforesaid definition of a correct approach in principle is no easy task. The potential difficulties are caught in a convenient form in footnote 953 at p.361 of the 4th Edition of Odgers: Uniform Evidence Law . That footnote reads: "While an item of evidence may have considerable probative value in respect of some fact when considered in isolation, it may be that other evidence has already been admitted to establish the fact. In those circumstances it may be that the proffered evidence adds little to what has already been admitted and that its incremental relevance is minimal. On the other hand, it may be that an item of evidence, when considered in the context of all the other evidence in the case, takes on greater significance than when considered in isolation. In these circumstances, its probative value is increased and the argument for discretionary exclusion becomes weaker." (emphasis added)

(8) The proposition advanced in the emphasised portion of footnote 953 is, as I respectfully think, plainly correct in principle. It is, however, obvious that the correct practical application of that principle to what is effectively a wholly circumstantial evidence case, requires a careful definition of exactly what it is that constitutes "the context of all the other evidence in the case" .

(9) In the present particular case, it seems to me that this inquiry can be answered correctly by saying that such context comprises, initially, so much of the Crown case as is unchallenged in the voir dire hearings. Whenever the Crown succeeds on the issue of the admissibility of a particular piece of challenged evidence, then that piece of evidence is to be added to the relevant "context of all the other evidence in the case" .

(10) If that be a correct approach, then it becomes necessary to establish the correct basis upon which it is to be decided whether a particular piece of challenged evidence has this or that particular "probative value" when evaluated in the relevant "context of all the other evidence in the case" .

(11) The Crown submitted, and in my opinion correctly, that the relevant principle is well-settled by a number of decisions of variously constituted Benches of the Court of Criminal Appeal. It is not necessary to examine in detail all of the cases that were cited in argument. A representative exposition, which I choose in particular because it specifically adverts to section 137 of the Act, is the following one, taken from the judgment of Hunt CJ at CL in Singh-Bal (1997) 92 A Crim R 397 at 403: "It is for the jury to determine which parts of the evidence they accept and which parts they reject. This court has held that the power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness (or witnesses) upon which the Crown case depends. The trial judge can exclude the evidence only where, taken at its highest, its probative value is outweighed by its prejudicial effect ;……………" (emphasis added)

(12) Learned leading counsel for the accused submitted that in the context of a Crown case which is essentially a wholly circumstantial evidence case, a somewhat different approach is required. A clear and considered statement by counsel of that suggested alternative principle appears at T. 496 (12) - (22). After some discussion, counsel accepted an addition to the suggested formulation of principle, the terms of that addition appearing at T.511(1) - (15).

(13) It seems to me that the principle in the form finally put forward by counsel does not differ in any substantial way from the principle that is explained in the foregoing citation from Singh-Bal . Should I be mistaken in that perception, then I have not been persuaded that I should depart, for present purposes, from the Singh-Bal principle. I accept at once that the facts in Singh-Bal , as also in the other specific cases to which I was referred by the Crown, are not the same as the relevant facts in the present case. That seems to me to produce the result that the Singh-Bal principle is a very difficult one to apply with proper and practical fairness to the relevant facts in the present case. It is, however, a very different thing to say that the different facts of the present case are so singular as to justify, in effect, the very exercise that the Singh-Bal principle disapproves. The contrary submission was not supported by reference to any curial decision. I have not been persuaded that it is supportable, otherwise, in principle.

(14) I have already observed more than once that the proposed Crown case against the present accused is, in every significant sense, a circumstantial evidence case. It is I think expedient on that account to recall some basic principles governing the reception of evidence in circumstantial evidence cases. I take them from the judgment of Badgery -Parker J in Jol (unreported, NSW CCA 8 October 1991). At page 10 of his Honour's judgment, Badgery-Parker J refers to a particular piece of evidence of which his Honour accepts that it was "of very slight probative value" . His Honour follows that observation with the following: "It was, however, in my view nevertheless admissible as a relevant circumstance. It is not required of circumstantial evidence that each piece of evidence relied upon must itself be capable of establishing guilt. The whole thrust of the circumstantial case is that while each piece of evidence taken singly and apart from the other evidence may fall very far short of the proof of guilt, the combination of a number of circumstances may establish guilt beyond reasonable doubt." Very shortly thereafter, and speaking of a particular piece of challenged identification evidence, his Honour says: "It is not and never has been the law that evidence is inadmissible because in itself it does not provide a complete identification. Evidence in itself inadequate to inculpate an accused may be admitted as being reasonably capable of adding to other evidence of identification and thereby supporting it. Identification can be proved by cumulative testimony."

(15) In the case of a balancing exercise of the kind established by section 137 of the Act, it is a statutory requirement that there be brought to account what is described as "the danger of unfair prejudice to the accused" deriving from the admission of the challenged evidence. In this connection I agree respectfully with the following propositions stated by Levine J in Polkinghorne (1999) NSWSC 704 at paragraph 51: "It is to be noted that s 137 speaks of "the danger of unfair prejudice". Unfair prejudice to the party against whom the evidence is tendered is not established by the mere fact that the evidence has only slight probative value: nor is it established because it may (quite properly) reduce the effect of that party'' case. There must be shown to be a danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issue in the case: R v Lock (1997) 91 A Crim R 356; Pfennig v The Queen (1975) 182 CLR 461. The onus remains on the accused under s 137 to persuade the trial judge that the danger of unfair prejudice from the evidence outweighs its probative value. The section provides that the evidence must be excluded once the judge is persuaded of that fact: Regina v Lock (1997) 91 A Crim R 356 per Hunt CJ at CL."

(16) I add for the sake of completeness a reference to the judgment of Sheller JA (James and Dowd JJ concurring) in Blick ( 2000) 111 A Crim R 326, and in particular to what is said by his Honour at paragraphs 19 and 20. 9 Having set in place the foregoing general principles, it is next necessary to consider how the proposed Crown case at trial would stand factually if there were left out of account the pieces of evidence with which the present rulings are concerned. 10 Such a case would embrace the following circumstances:

(1) The accused was, at all material times, apparently well acquainted with Mrs. Whelan. That acquaintance was sufficient to get him access to the Whelan home when he paid his unannounced visit on 16 April. It was sufficient, also, to get him private and uninterrupted access to Mrs. Whelan herself for a fairly substantial period of time. When taking his leave of Mrs. Whelan, the accused kissed her cheek, and the available evidence does not suggest that she reacted in a way apt to show that she found this act inappropriately familiar.

(2) The ransom note gave when it was received, and gives now, every appearance of being something much more sinister than some kind of sick joke. The note is, so far as can be judged reasonably having regard to its terms and its timing, a serious intimation of an actual kidnapping of Mrs. Whelan; and a serious attempt to extort money, the attempt being buttressed by overt threats to the life of Mrs. Whelan.

(3) The telephone call made on 23 May and taken by Mrs. Pemberton gave also, when it was received, and gives now, every indication of having been a serious action on the part of a man who, if not the precise author of the ransom note, was exceptionally well informed about it, and was complicit in the kidnapping/extortion enterprise to which the note was fundamental.

(4) The accused cannot be shown to have made that call, but he can be shown to have had in a real sense, rather than a merely hypothetical sense, an opportunity to have made the call.

In this connection I acknowledge the vigorous submissions put to the contrary by learned leading counsel for the accused. I have considered those submissions, and I do not accept that they demonstrate that this factor of opportunity should be excluded from the present canvass of the Crown case.

Counsel stressed that reliable evidence cannot fix an actual time of the second call taken by the receptionist in the office of the accused's then solicitor; and that it is therefore not possible to establish the opportunity of the accused to have made the call to Crown Equipment at the time at which that call was in fact made and received.

It is, however, the case that the solicitor's receptionist took some 10 calls between 9 a.m. and 9.30 a.m. She logged the calls in the order in which she took them. She took the accused's call as the second in the sequence of ten. It seems to me to be overwhelmingly likely that the second call came in closer, and much closer, to 9 a.m. than to 9.30 a.m. That conclusion seems to me to be strengthened by the accused's statement to the interviewing police that he did in fact make two phone calls of which the first was made just after 9.00 a.m. (5) Such other matters as are noted in paragraphs 1, 2, 3, 4, 18, 19 and 20 of the second of the two Crown outlines earlier herein mentioned. 11 Given the outline case as thus summarised, particular attention can now be given to each in turn of the particular challenges to which the following rulings pertain.

The Admission of the so-called "dot point" Documents 12 The Crown statements which I have attached to the present rulings explain sufficiently the contents of these materials and the way in which the Crown contends that the materials are relevant. It is not necessary now to repeat that detail. 13 It has been ruled that these documents were unlawfully seized by the police who searched the appellant's home on 25 May 1997. This entails that the Crown must now establish on the probabilities that there should be resolved in favour of the Crown the statutory balance for which provision is made in section 138(1) of the Act. Should the Crown successfully do that, then it will be a question whether the accused can establish on the probabilities that the proposed evidence should be excluded nevertheless by reason of the requirements of section 137 of the Act. 14 Any application of section 138 of the Act entails the consideration of a number of specific criteria which are prescribed in sub-section (3) of that section. It is to be borne in mind that those criteria, although they are prescriptive, are inclusive and not exclusive: that is to say, the consideration, and the application to the particular case, of the sub-section (3) criteria will not of itself necessarily resolve the ultimate balancing exercise that is prescribed by sub-section (1). It is convenient to turn without ado to each of the prescribed statutory criteria. 15 As to the criterion (3)(a): In any Crown case at trial there will be in issue the alleged facts that the accused planned the kidnapping of Mrs. Whelan and authored the subsequent ransom note. It is undisputed that both the "dot point" documents are authentic; that they were written by the accused; and that they were found in his possession on 25 May. The construction which the Crown seeks to put upon the contents of the two documents might very well not be accepted beyond reasonable doubt by a jury at trial. That does not mean, however, that the documents have no probative value in the sense now relevant. The construction, for which the Crown contends, of the contents of the documents is not, in my opinion, such as can be dismissed as, to borrow from a well known High Court authority in a civil case, "far-fetched or fanciful". It seems to me that the contents of the "dot point" documents could rationally affect in a real way, and to a considerable extent, the assessment of the probability of the existence of the previously mentioned facts in issue. 16 As to the criterion in (3)(b): I consider that the importance of the challenged evidence in any eventual trial by jury is considerable. From the point of view of the Crown, it would not be, I think, an exaggeration to say that this particular material is of fundamental importance to the overall structure of the circumstantial evidence case which the Crown has in mind to present against the accused before a jury. 17 As to the criterion (3)(c): It is unnecessary to say more than that the alleged offences of kidnapping and of murder involve criminal offences of the gravest kind. 18 As to the criteria (3)(d) and (e): I think that on the facts of the present case it is convenient to consider together both of these criteria. 19 It has been held that the seizure of the "dot point" materials was unlawful in three respects: first, in that the seizure was not authorised by any lawful warrant then current and conforming to the requirements of the Search Warrants Act 1985 NSW; secondly, in that the only things particularised in the only search warrant upon which the searching police officers purported to rely, and which things were said by those officers to embrace materials such as the "dot point" materials, were things described as "stationary (sic)" and "typing equipment and stationary (sic)", and that no such descriptions were sufficient to embrace documents in the form of the "dot point" documents; and thirdly, in that the "dot point" documents had not been "found" in the sense relevant to a lawful search and seizure, but had been seized peremptorily and indiscriminately as part of a simple and undifferentiated sweeping-up of any and every piece of documentary material in the accused's home. 20 I would say at once that in my opinion these illegalities, even if considered individually, let alone collectively, cannot properly be dismissed as simply unfortunate. Having in mind the evidence that I heard, relevantly, from the relevant and responsible police officers, I think that it is appropriate to draw to the attention of all concerned certain fundamental principles concerning the powers of search and seizure that are conferred upon police officers by a warrant issued lawfully pursuant to the Search Warrants Act. 21 It is convenient to begin with the following excerpt taken from the judgment of Lockhart J in Crowley and ors v Murphy (1981) 52 FLR 123 at 141: "Notwithstanding that Commonwealth and State legislation governs the law of entry, search and seizure in Australia today, it is necessary to bear in mind the fundamental legal conception of the freedom of the individual in his home or premises. It is the cardinal principle in the light of which the statutory authority for the issue and execution of search warrants is read. Even today, there is no right at common law to enter a person's home or premises for the purposes of search or seizure without the permission of the owner or occupier, except in the case of a search for stolen goods. Entry without such permission or the authority of a valid warrant is to commit a trespass and to render the trespasser liable to damages. Statutes authorising the issue of search warrants must be expressed in clear and unambiguous language." 22 And later, at 142: "The courts exercise a supervisory jurisdiction over the issue and execution of search warrants, …………… It is important that this jurisdiction be exercised zealously in modern times when inroads are made so frequently upon the rights of citizens by statute an d administrative action." 23 Later still, and at 150, Lockhart J, having said that his Honour thought it "unnecessary and undesirable" to attempt any exhaustive statement of procedures that police officers should follow in executing search warrants, summarises nevertheless certain fundamental considerations which are of general importance and effect, notwithstanding that what is to be done in particular in an individual case of search and seizure must, as his Honour says, "vary according to the circumstances of each case". The general principles as thus summarised by Lockhart J are put by his Honour in this way: "First, like most statutory powers, the power of enforcing a search warrant must be exercised in good faith. Second, the power must be exercised for the purpose for which it was conferred. It must not be used for some ulterior purpose. If, for example, it is used to punish the person whose premises are to be entered and searched, plainly that is an ulterior purpose. Third, the power must be exercised fairly, having regard to all the circumstances. Fourth, it must be exercised having regard to those affected by its exercise and, in particular, to the rights of those persons………………….. . Fifth, the officer executing the warrant must strictly follow the directions contained in it and must not exceed the limits of the authority it confers………………… ." 24 In Trimboli and Onley, unreported, NSW SC, 4 December 1981, Holland J speaks at pages 18 and 19 of his Honour's judgment of the competing considerations which need to be kept in a sensible balance in connection with any consideration, whether general or particular, of the use of statutory search warrants. It is not necessary to set out the detail; but I express my general agreement with the thrust of what his Honour there says with eloquent conviction. I accept in particular what his Honour says to the effect that the combating of serious crime involves "a dirty, difficult, often dangerous, and, more often, thankless task which we are very ready to dump upon the shoulders of our police force". 25 It needs to be said, however, and to be said with every proper emphasis, that no amount of proper sensitivity to the demands made upon police officers can be permitted to debase the principles enunciated by Lockhart J to the level of either hollow formalities or optional extras. When police officers search and seize otherwise than with the protection of a valid search warrant, then any Judge who is called upon to determine what consequence should follow cannot but bear carefully in mind the observations, with which I respectfully agree, of Spender J in Pressler v Holzberger (1989) 44 A Crim R 261 at 271, 272: "To condone unlawful conduct may subtly, or not so subtly, encourage it…………………… Where the Legislature has defined the circumstances in which a person's liberties might be infringed or their rights curtailed, it should not readily be concluded that conduct outside the defined authorisation is to be tolerated or excused. Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of citizens." 26 Applying the foregoing principles to the relevant evidence in the present case, I have come to the following conclusions:

(1) That the relevant unauthorised police actions were not deliberate in the sense that, as I am satisfied to have been the case, no relevant police officer considered in a discriminating way whether what was proposed was lawfully authorised, decided that it was not or that it was probably not, and proceeded nevertheless.

(2) The issue of recklessness is not, I think, so readily disposed of. The relevant evidence is that of Det. Inspector Howe as recorded at T70. For present purposes Inspector Howe can be understood as having been the police officer in charge. Inspector Howe's relevant evidence is as follows: "Q. Did you ask the police to remove every scrap of paper or every document et cetera that you found on or about the 24th or 25th of May? A. Yes. Q. You asked that of Detective Sergeant Walsh? A. Yes. Q. And is it your recollection that that was done - that that request was made on the morning of the 25th, the last day? A. I couldn't say the date. Q. How specific can you be, according to your recollection? A. No, I wouldn't even hazard a guess when I had the conversation. Q. Did you ever look at the search warrant? A. Not that I recall. Q. Just going back to my last question, when you asked Detective Walsh to remove every scrap of paper in the house, in fact what happened was literally every scrap of paper in the house was taken? A. Well I don't know, I wasn't there. Q. Do you agree that a large quantity of written material was seized and subsequently taken to the police station for analysis? A. Yes. Q. To the best of your recollection what were your exact words to Detective Walsh with respect to that request? A. My exact words? Q. Well to the best you can recall, I don't expect them to be the same. A. That I wanted records, documents, papers, brought back. Q. Everything? A. Everything basically. Q. Basically what you told him, every document that you could find bring it back we will have a look at it? A. Basically yes. Q. Did you wonder whether you were empowered to do that under the search warrant? A. No."

(3) It seems to me, with all proper respect to Inspector Howe, that the approach which he thus describes was, at the very least, reckless in the dictionary sense of "lacking in prudence or caution" . I find it very disconcerting that any police officer would think it appropriate to enter a citizen's home and, in effect, to carry out a documentary ransack of the home, without so much as adverting to the question whether such an intrusion was authorised by a valid search warrant then current. As to the criterion (3)(f) : It was submitted that Article 17 of the relevant International Covenant had been breached. The Article provides: "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, ……………. 2. Everyone has the right to the protection of the law against such interference……………" It will be apparent from what I have previously said that the relevant police conduct constituted, at least, an unlawful interference of the kind described in Article 17. I am myself inclined to the view that the interference was, as well, arbitrary in the sense contemplated by Article 17. As to the criterion (3)(g) : There is no evidence to suggest that any such proceeding has been or is likely to be taken. As to the criterion (3)(h) : It was submitted that the terms of section 5 of the Search Warrants Act entail that it would never have been possible to have obtained a search warrant authorising a simple and indiscriminate seizure of papers and documents of whatsoever kind that might be found in the accused's home. I think that there is some force to that argument, but I prefer to deal with the matter otherwise. It seems to me that it would have occasioned the investigating police no great inconvenience to have sought from an authorised Justice a valid search warrant authorising the search for, and if found the seizure of, any document in the possession of the accused and having, reasonably, an apparent connection to the disappearance of Mrs. Whelan. I accept that the putting into effect with strict propriety of such a warrant would have entailed the search item by item of the documents at the accused's premises; and the formation, item by item, of a discriminating and careful judgment as to whether such item had a reasonably apparent connection to Mrs. Whelan's disappearance. That burdens of that kind will be encountered is no excuse for cutting the corners of propriety in the matter of obtaining and enforcing search warrants. 27 Having canvassed the criteria prescribed in section 138(3), I turn next to the striking of the overall balance as prescribed by section 138(1). 28 It is convenient to begin, once again, with a citation of authority. In Lawrie v Muir (1950) JC 19, Lord Cooper, the Lord Justice-General, speaking for a specially convened Bench of seven members of the Scottish Court of Justiciary, said this: "From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods. It is obvious that excessively rigid rules as to the exclusion of evidence bearing upon the commission of a crime might conceivably operate to the detriment and not the advantage of the accused, and might even lead to the conviction of the innocent; and extreme cases can easily be figured in which the exclusion of a vital piece of evidence from the knowledge of a jury because of some technical flaw in the conduct of the police would be an outrage upon common sense and a defiance of elementary justice………………… Irregularities require to be excused , and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with a crime. That principle would obviously require consideration in any case in which the departure from the strict procedure has been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick. Again, there are many statutory offences in relation to which Parliament has prescribed in detail in the interests of fairness a special procedure to be followed in obtaining evidence; and in such cases (of which the Sale of Food and Drugs Acts provide one example) it is very easy to see why a departure from the strict rules has often been held to be fatal to the prosecution's case. On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained." (at 26, 27) 29 I have not found this overall balance an easy one to strike in the present case. 30 A matter that is relevant in that connection is a submission put with great emphasis by learned leading counsel for the accused, to the effect that the police not only seized unlawfully the "dot point" documents, but also handled them subsequently in a way that has occasioned the accused real and irremediable prejudice. It was submitted that this entailed such an unfairness as ought to weigh heavily on the accused's side of the section 138 balance. 31 The underpinning of the submission, explained simply, is that the police, having seized the documents, shortly thereafter caused them to be submitted to analysis for fingerprints; that such analysis entailed the use on the documents of a substance called ninhydrin; and that the consequence of the use of that substance was to preclude thereafter the carrying out of certain other scientific testing by defence experts, which testing might have well enabled the accused to refute the intended Crown hypothesis as to relationship of the documents to the alleged kidnap of Mrs. Whelan, and to the ransom note. 32 In support of the foregoing submission, the defence called Mr. Neil Holland, a highly qualified and experienced forensic examiner of documents. I accept Mr. Holland's evidence. 33 That evidence establishes, relevantly, two things: first, that Mr. Holland was able to carry out certain testing of the ink types used in the writing on the "dot point" materials; and secondly, that Mr. Holland was unable, because of the condition of the paper used in the documents, to carry out certain ageing tests on the paper itself. 34 As to the ink testing, what Mr. Holland can say is contained in his reports, exhibits E and F on the relevant voir dire hearing. It is there established that the inks used were available, that is to say were in production, wholesale distribution and retail sale, prior to 1995. This evidence seems to me to stop far short of establishing that the ink used in the writing of the "dot point" documents could not have been used by the accused in, or shortly prior to, May 1997. 35 As to what paper ageing techniques might have established, I refer to, but without here setting out in detail, my exchanges as recorded at T.391-392 with learned leading counsel for the accused. I consider that what is there established falls far short of demonstrating that the testing which Mr. Holland could not carry out would have been capable of proving that the paper used in the "dot point" documents could not have been so used in, or shortly prior to, May 1997. 36 I consider, therefore, that the accused has not demonstrated in fact the particular unfairness alleged in the submission earlier summarised. 37 I wish next to repeat, and with emphasis, that I disapprove strongly of what seems to me to have been a very cavalier approach taken by the relevant responsible police officers to so serious a matter as the search and seizure operation with which I am now dealing. The relevant authorities would have only themselves to blame if this Court were now to exclude the evidence on that account. 38 And yet, in the present particular case, there are powerful countervailing considerations. If Mrs. Whelan was indeed abducted, then whoever abducted her committed a crime of the gravest kind. If Mrs. Whelan has indeed been murdered, then whoever murdered her has committed what is one of the most serious crimes known to the law. It needs, surely, no extended emphasis that there must be the most compelling public interest to ensure that such crimes, if they have in fact been committed, be proved according to law to have been committed; and that anybody implicated culpably in the commission of either or both of the crimes should be identified and then brought to justice according to law. If the "dot point" material has, as in my opinion it does have, real probative value in connection with the proper giving of effect to the foregoing considerations of public justice, then it seems to me that it would be, to quote again from Lord Cooper, "an outrage upon common sense and a defiance of elementary justice" to exclude the evidence of the "dot point" material upon the basis of the balance prescribed by section 138(1). 39 It is necessary, given the foregoing conclusion, to consider separately whether the challenged evidence must be excluded by reason of section 137 of the Act. 40 As to the relevant factor of "probative value", I cannot add usefully to what I have said about that factor in connection with the section 138(1) exercise. As to the factor of "danger of unfair prejudice to the defendant", I have not been persuaded that there is a danger, in the sense of a real risk that a jury, properly instructed and acting reasonably otherwise, will use the evidence of the "dot point" material "upon a basis logically unconnected with" the relevant issues for trial. 41 I will admit, accordingly, this challenged evidence.

The Admission of Evidence concerning an Issue of the "Business Review Weekly" Magazine Found and Seized on 25 May 1997 42 This item, like the "dot point" materials, was seized unlawfully in the three particular senses discussed earlier herein. Once again, therefore, it is necessary to carry out the section 138(1) balancing exercise; and if then necessary, the section 137 balancing exercise. Once again, it is expedient to commence by considering the proper application of the section 138(3) criteria. 43 As to the criteria (c) through (h): What I have earlier said in connection with the "dot point" material can stand mutatis mutandis. 44 As to the criteria (a) and (b): I consider that the probative value of this publication is minimal. 45 The publication bears date 23 May 1994. The cover story, and the principal feature of the particular issue, is entitled "Rich 200". The overall feature comprises various articles and tables. 46 At page 67 of the issue is an alphabetical listing of the 200 people to whom the cover story title refers. Each name in the list has opposite it a page reference. That reference enables an interested reader to find a mini-essay about the named individual, or, as is sometimes the case, a named family. Generally speaking, each mini-essay gives brief biographical details, with the emphasis on wealth-related, rather than merely personal details. No detailed addresses or contact details are given. There is in each case a figure said to be the estimated worth, in dollar terms, of the particular individual or family. 47 The following page, page 68, contains a second list. The list is headed "Who is Worth What". It is not arranged alphabetically, but in the order of estimated worth in dollar terms. On page 68 some person(s) has/have made notations against nine names of the page 67 page reference to the mini-essay about the person named. In two instances, the written page reference has been crossed out. In one instance, the page reference has been ticked. There are two further instances of a marking which is obviously a notation, but which is not accompanied by any page reference. All of the markings on page 68 have been made in red. The markings give the appearance of having been made with a biro. No reference to Mrs. Whelan or to her husband appears on pages 67 and 68. 48 On page 162 the name at the head of one particular essay has been highlighted with what looks to have been the use of a pink texta pen. In the top left hand corner of the page is a large asterisk in the same pink writing. The name is not that of Mr. or Mrs. Whelan or of any member of their respective families. 49 There is no evidence whatsoever of the time or times at which any of these markings was made; or of who made them. Unlike the "dot point" materials, the markings appear to have no rational interpretation that is capable of linking them rationally to the actual terms of the ransom note. So far as I can see from the available evidence, the markings have never been put to the accused. 50 There is, then, nothing to link the accused in any way with these markings, save only his bare apparent possession on 25 May 1997 of the publication in which the markings occur. The nature of the markings themselves does not give rise to any rational inference beyond the inference that whoever made the markings had some curiosity about a handful of wealthy individuals. There is nothing that I can see to indicate that any such curiosity was probably sinister rather than merely inquisitive. 51 A piece of evidence of so speculative a character does not have about it, in my opinion, the potential importance to the doing of public justice such as tipped the balance in favour of admitting the "dot point" notes, albeit they had been unlawfully obtained. 52 On the section 138(1) balance, I exclude this evidence. Had I come to the section 137 balance, I would have been well satisfied that the admission of this evidence would carry exactly the danger of unfair prejudice against which section 137 is aimed.

The Admission of Evidence of Images Recorded on 6 May 1997 by Security Video Cameras Installed at the Park Royal Hotel at Parramatta; and of Images subsequently Recorded of Police Reconstructions 53 The detail of the material recorded on 6 May 1997 is summarised in the two Crown statements. It needs to be understood that the images are in black and white; that they are, generally speaking, of poor quality; that some of them are reflected images; and that they show nothing that can be seen at once to be an unmistakable image of the particular Pajero motor vehicle that was undoubtedly available to the accused at the time. 54 The images, with all of their aforesaid defects, do have important aspects for present purposes. 55 First, they show the last know movements of Mrs. Whelan; and there does not seem to be anything odd about them. 56 Secondly, the images show that, at about the time of Mrs. Whelan's emergence from the underground car park into the street, a vehicle which had apparently been parked in front of the hotel and somewhat to the west of the western edge of the car park ramp, moved forward towards the mouth of the ramp; and very shortly thereafter was caught on camera either pulling out into the traffic, or having just then pulled out into the traffic. Some at least of the images are sufficient, in my opinion, to identify the vehicle as a Pajero, but not to identify its colour or its registration details. 57 If one looks at the whole of this material at its highest in favour of the Crown, and remembering that the "dot point" material is now available to be considered as part of the relevant forensic context, then it seems to me that the evidence about these black and while security images; and evidence relevant to the more particular identification of the Pajero shown in some of the images; is evidence having significant probative value in connection with the issues raised by the Crown allegations that the accused did in fact go to the hotel; wait there for Mrs. Whelan; and immediately drive off with her. 58 I am not satisfied that the admission of such evidence would give rise to a danger of unfair prejudice. Either a jury at trial will find beyond reasonable doubt that the Pajero caught in the hotel security cameras is that of the accused; or they will find that there is a reasonable possibility that it is not. The former finding would be, of course, prejudicial, but hardly unfairly so. The latter finding would give, of course, a significant forensic benefit to the accused. 59 I will admit this body of evidence. I will admit, as relevant to the proper assessment of the weight of that evidence, the evidence of the subsequent police reconstructions.

The Admission of Evidence in connection with a Quantity of Firearms in the Possession of the Accused on 21 May 1997 60 On 21 May 1997 searching police officers found, and seized lawfully, a large number of firearms then in the possession of the accused. They were, put simply, rifles, carbines and shotguns. 61 In addition, there is available evidence capable of establishing that the accused possessed in May 1997 a revolver which the searching police had not found. The accused was later prosecuted for, and pleaded guilty to, having been in possession, between 1 June 1990 and 30 June 1996 of an unlicensed .45-40 pistol. The accused has never been licensed to keep a pistol. 62 There is available evidence to establish beyond reasonable doubt that the accused was very familiar with the use of firearms; and that from time to time he had both hunted with firearms, and used firearms for what might be described as recreational target practice. 63 On 25 and 27 May 1997 the accused had a telephone conversation with, respectively, his father, and a friend named Bob. The calls were lawfully intercepted. Each conversation touches briefly and guardedly upon the accused's then possession of a revolver which the searching police had not found. 64 The Crown contends that the probative value of this material is, put simply, that it shows that the accused could have shot Mrs. Whelan with the missing revolver; and could then have hidden, or disposed of, the weapon. It is timely to record that no alleged murder weapon has been identified, let alone produced. 65 In my opinion the whole of the proposed Crown evidence concerning firearms, if it has in truth probative value at all, has so little such value as is clearly out-weighed by the danger of unfair prejudice to the accused. It seems to me that there must be a very real risk that this body of evidence would be used by a jury as a basis for reasoning, impermissibly, that the accused was a man who liked weapons; who liked using them and was well able to do so; who kept unlicensed weapons; who had, in May 1997, an undiscovered and unlicensed revolver; who was, therefore, just the type of violence-prone individual who would be quite capable of doing what he is charged with have done in fact; and who had, therefore, in fact either kidnapped Mrs. Whelan with violence, or had killed her, probably by shooting, or both. 66 I exclude the whole of this evidence.

The Admission of the Evidence of the Proposed Witnesses Miss Pritchett and Mr. Buckley 67 The Crown wishes to lead from each of these witnesses brief evidence of a casual social encounter with the accused, in the case of Miss Pritchett in early December 1996, and in the case of Mr. Buckley "some time in 1996". Each witness is expected to give evidence of what is really nothing more than a passing remark made by the accused in casual conversation. What the accused said is essentially the same in each case, namely, that he is familiar with the bushland adjacent to his farm, and that a person could easily become lost, or a body could easily be hidden, in that area. 68 In my opinion these casual asides have no probative value. They go no further than to suggest that if the accused has in fact murdered Mrs. Whelan, he will have had no difficulty in disposing of the body so that it could never be found. But they carry the risk that they will be used as suggesting the very different proposition that because the accused could have disposed effectively of Mrs. Whelan's body after having killed her, therefore it can be inferred beyond reasonable doubt that in fact he has killed her and has thereafter so disposed of her body. 69 I exclude this evidence.

The Admission of Evidence respecting a Telephone Call made on 23 May 1997 to Crown Equipment Pty Limited 70 The details of this call are set out in the Crown case statements and need not be now repeated. 71 What is in issue for present purposes is the admissibility of evidence proposed to be led from Mrs. Pemberton, the receptionist who took the call, concerning the voice of the caller. 72 The relevant facts in that connection, put simply, are that at the end of December 1997 the investigating police transferred onto an audio tape the previously recorded voice of the accused answering a question during the course of a recorded interview by police with him on 15 June 1997. The police also recorded the voices of six police officers reading the same words as those spoken by the accused. All seven recordings were then played to Mrs. Pemberton. 73 Mrs. Pemberton's reaction to the tapes is described as follows by her in a statement that she gave subsequently to the police: "The audio tapes marked 'C' and 'D' were the closest to the voice that I had the telephone conversation with at Crown on Friday 23 May 1997. I believe that the caller on 23 May 1997 had a huskier voice. His voice also sounded like he was well educated. On a scale of ten I would say that the voice on tape 'C' and 'D' scored a six." 74 The voice on tape 'D' is that of the accused. The voice on tape 'C' is that of a particular police officer; and it is now agreed that he was not in Goulburn on 23 May 1997. 75 The accused contends that this evidence is not probative of a positive voice identification. I agree. That is not, however, the basis upon which the Crown seeks to lead the evidence. The Crown's purpose is to rely upon the evidence as probative of nothing more than a degree of voice similarity, that being a piece of circumstantial evidence in a wholly circumstantial evidence case. The Crown buttresses this approach by relying upon the observations of Adams J, (Spigelman CJ and Studdert J concurring), in Gibson (1999) 110 A Crim R 180 at 187. 76 Guided by what is said in Gibson, I consider that the evidence is probative in the sense for which the Crown contends. Its true weight will be a matter for the jury, directed appropriately by the presiding Judge, after the evidence has been tested in the way appropriate at trial but not at a voir dire hearing. I consider that the giving at trial of proper directions will be sufficient to ensure that the jury will not give this evidence more than its true weight. 77 I will admit this evidence.

The Admission of Evidence relating to Inquiries made by the Accused in February 1997 to Tasmania Development and Resources; and relating to a Query made by the Accused in early January 1997 of a Lady Acquaintance as to her Willingness to live on a Farm in Tamania. 78 The inquiry made of the Tasmanian Government Authority concerned the estimated costs of establishing a winery in Tasmania. The person who dealt with the inquiry describes it as "more along the lines of a general inquiry" than along the lines of a specific inquiry directed to a specific project that was actually, or in any practical sense, on foot. 79 The question put to the lady acquaintance was a momentary incident in the course of a normal dinner engagement. 80 The Crown contends that the evidence is probative of a motive on the accused's part to obtain a large amount of money in order that he might re-locate himself in Tasmania, and reconstitute his personal life in the wake of financial constraints and domestic difficulties from which the accused does appear to have been in fact suffering. 81 I consider that if this evidence is capable at all of having such probative value, something which I think is very doubtful to say the least, then I consider that such probative value is very slight. 82 The countervailing consideration, that is to say the danger of unfair prejudice, is, I consider, very strong. It seems to me that there is a real risk that a jury hearing this evidence would reason impermissibly from it that the accused was something of a philanderer with expensive day-dreams; that he was, therefore, just the kind of person who could conceive the idea of a kidnap for ransom, and thereafter kill the person kidnapped if he came to see it as expedient to do so; and that it might the more readily be concluded beyond reasonable doubt that he did in fact both kidnap and murder as now charged against him. 83 In my opinion a fair striking of the section 137 balance requires the exclusion of this evidence. I exclude it accordingly.

The Admission of Two Particular Telephone Conversations on 23 May 1997 between the Accused and Certain of his Neighbours 84 One of these conversations was with a Mr. Broadhead; and the other with a Mr. Brown. In the event, learned leading counsel for the accused did not press his objection to the admissibility of evidence of the accused's conversation with Mr. Broadhead. 85 Relevant telephone records can establish that the accused telephoned somebody called Brody and asked, unsuccessfully, for the loan of a car for a couple of weeks. It was suggested to the accused that he ask Mr. Brown. This call with Brody is logged as having commenced at 6.33 a.m. and as having finished at 6.36 a.m. 86 The same records show that the accused telephoned Mr. Brown at 6.37 a.m.; could get no response; and left a message on Mr. Brown's answering machine. 87 The same records show that at 6.41 a.m. the accused telephoned Mr. Broadhead and arranged to borrow a vehicle "for about a couple of hours" so that he could "duck into town", that is, into Goulburn. According to Mr. Broadhead, the accused collected the vehicle at about 8.00 a.m. and returned it at about 10.00 a.m. 88 The Crown contends that evidence of all attempts by the accused to borrow a vehicle on 23 May should be admitted in order to establish that not only did the accused travel to Goulburn early on that morning, but also that whatever it was that took him to town was, so far as he was concerned, so urgent that he made persistent attempts to borrow the necessary transport. These attempts, and their timings, are said to strengthen the other evidence available to show that the accused had the opportunity to make to Crown Equipment the phone call that was undoubtedly made by somebody then present in Goulburn. 89 I consider that the evidence does have that probative value. Any risk that a jury will misuse the evidence can be properly countered by appropriate directions and warnings. 90 I will admit this evidence.

The Admission of Evidence from Mr. K. J. Best and from Miss/Mrs. Lucienne Joy 91 The objective of this evidence is to establish that the style of the ransom note is such as to suggest that its author had experience as a copywriter, a form of past experience which the accused admittedly had. 92 In my opinion the probative value of this evidence, - assuming for the moment the requisite qualifications of the two potential witnesses to give at all expert opinion evidence on the topic, - is of no consequence. Each expert has compared the ransom note with various materials, the detailed procedures being set out in their respective statements and not requiring present repetition. The one thing neither of them has done is to analyse the writing style of copy actually written by the accused; to consider objectively what, if any, distinctive features the accused's own style manifests; to carry out similar exercises on the ransom note; and then to make a reasoned comparison producing reasoned conclusions. 93 What has in fact been done seems to me to have nothing like that careful and methodical specificity. It is, rather, exactly the kind of opinionated generalisation that is apt, in the circumstances of the present case, to be misused by a jury. 94 I exclude this evidence. I exclude, by parity of reasoning, the corresponding evidence of Dr. Gibbons.

The Admission of Evidence in connection with a Typewriter seized on 22 May 1997 during a Lawful Search of the Accused's Premises 95 It is not disputed that the typewriter belonged to the accused; that in the condition in which it was found and seized it was fitted with a wheel of such a kind as would not have produced the form of typescript appearing in the ransom notes; but that it would have been a simple matter to have inserted temporarily a different kind of wheel, the use of which would have produced that particular type of typescript. The only ribbon found by the police in the accused's possession was, also, not such as to have produced the ransom note typescript, but it would have been a simple matter to have obtained a ribbon that would have produced that typescript. 96 The evidence tendered by the Crown in connection with the present voir dire hearing includes a statement from the National Manager of Canon Australia, the accused's typewriter being a Canon machine. The Manager's evidence seems to go no further than to establish that a call was made early in January 1997 to the Help desk at the offices of Canon. I cannot find anything actually identifying the accused as the caller; or identifying the nature of any request for help. As at present advised, I do not see that the evidence of the National Manager is relevant and I exclude it. 97 The remainder of the contentious Crown evidence consists of expert opinion evidence from Detective Snr. Constable Williams. It is, I consider, of some probative value in that it goes, at least, to the establishing of opportunity for the accused to have produced such a document as the typed ransom note. 98 There is, I consider, a need to ensure that a jury at trial does not misuse evidence of such opportunity as evidence capable without more of establishing guilt found beyond reasonable doubt; but I consider that proper directions and warnings to a jury will be sufficient to divert the jury from such error. 99 I will admit the evidence of Detective Snr. Constable Williams.

The Admission of Evidence respecting a Bottle containing Traces of Chloroform 100 During the police search on 21 May 1997 there was found in a gun cabinet, which was located in walk-in wardrobe in the accused's bedroom, a small bottle labelled "Chloroform". Subsequent scientific analysis has shown to be present in the bottle "traces" of chloroform. The bottle was found, it seems, in the brown paper bag in which it had been packaged by the pharmacist from whom the bottle had been originally purchased. 101 The Crown submits that this evidence should be admitted because it shows that the accused was in possession, at relevant times, of something, namely chloroform, which was peculiarly well suited to the subduing of Mrs. Whelan by the accused, something which it must be assumed the accused had in fact to do in order to kidnap her. 102 The available evidence about the chloroform, in so far as that evidence might be thought to be circumstantial evidence of a kidnapping, a subsequent murder, or both of those crimes, is, I consider, so sparse as to have the very slightest, if any, probative value. 103 I consider that the evidence if admitted carries a real risk that the jury will reason impermissibly that the evidence has a significance, deriving from the subtle suggestiveness in the present case of the possession of chloroform, that misconceives any true weight that the evidence might be thought capable of carrying, even at its highest. 104 I exclude the evidence.

The Admission of Certain Evidence of James Whelan 105 James Whelan is the son of the missing Mrs. Whelan. In 1997 he was aged 11 years. On 17 July 1997 he gave a statement to investigating police officers. In it he speaks of, among other things, his recollections of the accused's unannounced visit on 16 April 1997 to the Whelan home. Objection is taken to the admission of the following questions and answers forming part of the interview: "Q9. Will you tell me now? A. Yes. Bruce Burrell came to our house and Mum was very happy to see him. He said he went Pistol Shooting in Lithgow, but he was wearing a business suit. When he left Mum didn't have a good look. He was driving a dark coloured Jaguar sedan XJ6, it was a dark green or blue colour with white and black number plates, he was wearing sunglasses, I think that's all. Q. 14 Why do you say that Bruce had been to the pistol club? A. Cause he said that. Q.15. Do you remember the exact words? A. Something like it really, my car was out for a service. Q. 16 Do you remember what he said about the pistol club? A. He said he just went to the pistol club at Lithgow. Amanda letted him in" 106 The Crown submits, correctly on the evidence at present available, that the accused cannot have visited the Lithgow Pistol Club on 16 April because the club premises were not open on that day. The Crown further submits that any connection asserted by the accused between his unannounced visit to the Whelan home and a supposed prior visit to the Lithgow Pistol Club is inconsistent, as indeed it is, with the only explanation ever given by the accused to the police of his visit to the Whelan home, namely that he was wanting to talk to Mr. Whelan about possible employment. 107 The learned Crown Prosecutor submitted in terms that the purpose in proving the inconsistency is not that of proving lies evidencing a consciousness of guilt. The Crown's purpose, as I followed the submission, is to prove the inconsistency in fact, and to contend that such fact suggests that the accused gave Mrs. Whelan a deliberately misleading explanation for his visit, thereby assuaging any uneasiness which she might otherwise have felt, and so laying the groundwork for his plan to entice her into meeting him at Parrmatta in circumstances which would enable him to kidnap her. 108 I consider that the probative value of the challenged evidence is, at best, very slight. There is no evidence at all of the words actually used; or, more importantly, of the conversational context in which they were used. 109 I consider that the risk of misuse of the evidence is significant. Any normal lay jury can be expected to have difficulty in drawing subtle distinctions between a lie and an inconsistency; let alone the subtle distinction between a lie evidencing consciousness of guilt of the particular offences charged, and a circumstantial inconsistency. In recent years, appellate authority has narrowed very markedly the scope for the permissible drawing of an adverse inference from an undoubted lie, let alone from a circumstantial inconsistency. 110 I exclude this evidence.

The Admission of Parts of the Proposed Evidence of Amanda Minton-Taylor 111 At all relevant times Miss Minton-Taylor was employed by Mr. and Mrs. Whelan as a horse trainer and nanny. She it was who actually gave access to the accused when he called at the Whelan home on 16 April 1997. She explains in a statement to the investigating police what she can recall about the visit. Describing events immediately following the accused's departure after the visit, Miss Minton-Taylor says: "17. I was making a sandwich and Kerry came into the kitchen. She approached me and said, "Can you do me a favour. You never saw him here. Don't tell anybody. Give me a couple of weeks and I'll tell you why". I said, "O.K". Kerry said "Don't worry" and half laughed and said, "I'm not having an affair". Her facial expressions looked as if she meant what she said. She said, "With this body" and held her arms out suggesting that her size and appearance was not attractive. Somewhere through the conversation, Kerry said, "It's a surprise". 18. After a couple of minutes, while she was still standing beside the kitchen bench, she said in a soft voice, muttering to herself, "That bastard, why did he do this to me.". She wasn't directing this to me, she appeared to be saying it to herself." 112 Objection is taken to the admission of the words attributed to Mrs. Whelan in the first sentence of paragraph 18. 113 Statutory exceptions aside, Miss Minton-Taylor's evidence of Mrs. Whelan's words would be inadmissible as hearsay evidence: section 59 of the Act. One such statutory exception relevant in the present instance is the exception provided by section 72 of the Act, that is: "evidence of a representation made by a person that was a contemporaneous representation about the person's ……………… feelings, sensations, ………………… or state of mind". I consider that Miss Minton-Taylor's evidence of what Mrs. Whelan said is within this exception. Whether the evidence ought, even so, in fact to be admitted is a separate question to which I shall return. 114 It was submitted for the Crown that the evidence was admissible by reason of a further statutory exception, namely the exception provided by section 65(2) of the Act. 115 The difficulty that I see about that submission is that it is practically impossible to apply the section to words as vague as those attributed to Mrs. Whelan. If it be asked what exactly it was that Mrs. Whelan was intending to convey by what she said, the only rational answer is that she was conveying that, for some wholly unexplained and inexplicable reason having to do with the accused's visit, she was agitated and affronted by something, the precise nature of which, also, is both unexplained and inexplicable. All that can be said is that whoever or whatever was so troubling Mrs. Whelan has caused her to form an opinion that she had been wronged in some way both unexplained and inexplicable, by some male person, unidentified and not reliably identifiable, and that the nature of the wrong made it appropriate to excoriate the wrong -doer as a "bastard". 116 It seems to me that such a high degree of obscurity about what the words might have been intended to convey precludes the making of proper findings of fact such as will satisfy the factual requirements of the relevant parts of section 65(2). 117 The problems thus canvassed in connection with section 65 colour also the operation of section 72. After the obvious facts of agitation and affront have been noted, it is not possible to move forward rationally rather than speculatively. 118 It follows, in my opinion, that there is a real risk that a jury apprised of the challenged evidence will tend irresistibly to speculate about what it was that so upset Mrs. Whelan ; and will jump to the conclusion, in truth wholly speculative, that it was the accused himself to whom Mrs. Whelan was referring. I consider this to be a danger of unfair prejudice in the section 137 sense; and I consider that such danger greatly outweighs any probative value to be given to the challenged evidence. 119 I exclude the evidence accordingly. ********** DPP V BRUCE BURRELL Supreme Court File No. 70004/00 CROWN CASE STATEMENT

The accused is charged with the kidnapping and murder of Kerry Whelan. The Crown case is that he kidnapped her with a view to obtaining a massive ransom payment. The Crown does not know how or when she was murdered. Her body has never been found. However, it is the irresistible inference that she is dead and that she died as a consequence of the kidnapping and that the accused as the kidnapper was responsible (probably on his own) for her murder.

Mrs. Kerry Whelan disappeared without trace from outside the Park Royal Hotel at 9.38 am on Tuesday 6 May 1997.

At that time Mrs. Whelan was married to Bernard Whelan and they had three children. Mr. Whelan was a senior executive of Crown Equipment, a multinational corporation ("Crown").

The accused had been employed at Crown as advertising manager from 1989 to 1990 and had formed a friendship with both Mr. and Mrs. Whelan during that time. In December 1990 Mr. Whelan retrenched the accused along with a number of other employees due to an economic downturn. There was sporadic contact between the accused and Mr. Whelan up until about 1993 and there was no contact after that until the 7th of April 1997.

The accused rang Crown on the 7th of April 1997 and left a message for Mr. Whelan. Mr. Whelan returned that call that evening and had a general conversation with the accused about their families and business. In particular Mr. Whelan told the accused that he personally attended meetings at Crown's new factory site in Adelaide every second Wednesday. During the call no arrangements were made for any further contact between the two and in fact Mr. Whelan recalls thinking that there was no point to the phone call at all. After he terminated the call, Mr. Whelan told Mrs. Whelan about the call from the accused.

Mr. Whelan next attended a factory site meeting in Adelaide on Wednesday 16 April 1997. On that very day, at about 11.30 am the accused arrived, without any notice, at the Whelans' farm at Kurrajong.

Upon his arrival the accused discovered that the Whelans had installed electronic security gates at the entrance to the property. Despite having a mobile phone on him (which he used later in the day) the accused travelled to North Richmond and telephoned the Whelan property from a public phone. He then spoke with the Whelans' horse trainer/nanny, Amanda Minton-Taylor and she gave him the code to the security gate so that he could enter the property.

The accused returned to the property and drove to the house where he was greeted by Mrs. Whelan. At the time the accused was driving a Jaguar sedan. Mrs. Whelan introduced the accused as "Bruce" to her son who was home from school as he was sick and to Amanda Minton-Taylor.

The accused was seen to speak with Mrs. Whelan alone in the garden for a period of time before giving her a kiss on the cheek and leaving. After the accused had left the property it was observed that Mrs. Whelan's demeanour had changed. Mrs. Whelan went to the kitchen and said to Amanda Minton-Taylor: "Can you do me a favour. You never saw him here. Don't tell anybody. Give me a couple of weeks and I'll tell you why.

Minton-Taylor agreed and Mrs. Whelan then said toher: "Don't worry, I'm not having an affair."

Mrs. Whelan then made a facial expression and indicating her body said "With this body" . At one point in the conversation Mrs. Whelan also said "It's a suprise" and later Minton-Taylor overheard Mrs. Whelan mutter to herself: "That bastard why did he do this to me."

On Tuesday 6 May 1997 the Whelans were to travel together to Adelaide. Mrs. Whelan was due to meet Mr. Whelan at the Crown office at Smithfield at about 3.45 pm and their flight was booked for 5.50 pm.

On this day Mr. Whelan left home at about 8 am and spent the rest of the day at work. Mrs. Whelan had told her husband that she was going to Parramatta to visit a beautician. Her diary for that day contains the entry "9.30". This is unusual as her normal practice was to write down details of her appointments in her diary. Police enquiries have failed to reveal any beautician in the Parramatta area with whom Mrs. Whelan had an appointment on this day.

On this morning Mrs. Whelan left home and drove to the Minton-Taylor home at Glossodia, arriving at about 8.20 am. She had a cup of coffee with Amanda and her mother, Mrs. Minton-Taylor and mentioned to them that she had an appointment at 9.30 am at Parramatta and enquired as to how long it would take to get there. Mrs. Whelan left the Minton-Taylor house at about 8.45 am. She showed no signs of distress.

On the way to Parramatta Mrs. Whelan spoke briefly to Mr. Whelan on the mobile phone in her car and appeared to be quite cheerful.

Mrs. Whelan drove to the underground carpark of the Park Royal Hotel in Parramatta, a carpark she usually used when in Parramatta and in fact she had told Mr. Whelan that she would park there. The hotel and carpark has a security camera system which is attached to a video recorder which records a still image from each security camera each 1-2 seconds. Mrs. Whelan's car was recorded entering the carpark via a ramp from Phillip Street at 9.35.45 am. After some brief dealings with a parking attendant she was recorded by a security camera walking up the western side of the ramp leading from the carpark onto Phillip Street. Mrs. Whelan has never been seen again.

At 9.38.46, forty-four seconds after Mrs Whelan was last seen on the security camera, another security camera recorded a reflected image of a two tone, two door Mitsubishi Pajero pulling away from the kerbside in Phillip Street outside the hotel from the direction Mrs. Whelan had been seen heading towards. This vehicle was the same type of Pajero as one that was in the possession of the accused at this time. Police have been able to locate, interview and exclude most of the people who owned Pajeros at that time. Other details of the vehicle seen in the recorded images coincide with the Pajero in the accused's possession as at 6 May 1997 including a bull-bar, a running board and heavy dirt stains on the rear window. The Crown case is that Mrs. Whelan entered the accused's Pajero outside the Park Royal Hotel. It is not known how the accused enticed Mrs. Whelan to Parramatta and into his car.

When Mrs. Whelan failed to meet Mr. Whelan at 3.45 pm he made a number of enquiries and then, as he became increasingly concerned, went searching for her car and found it in the carpark of the Park Royal. He then alerted police and began searching for her himself as well.

The following day Mr. Whelan received a typed ransom note in the mail. This note stated that Mrs. Whelan had been kidnapped and that if instructions were not followed explicitly she would die. The note demanded US $1,000,000 which was required in Australian currency. The note explained that due to the exchange rate a total sum of A $1.25 million dollars was to be paid. It directed Mr. Whelan to collect these funds within seven days and then put an advertisement in the Public Notice section of the Daily Telegraph newspaper in the following terms: "Anyone who witnessed a white Volkswagen beetle parked beside the eastern gates of the Sydney Olympic site at 10.30 pm on Tuesday 8.4.97 please call…….. then put your home telephone number at the end of the advertisement."

Contact was to be made within three days of this with further instructions. The note warned that Police were not to be contacted and that any sign of outside involvement would result in Mrs. Whelan's death.

An examination of the ransom note by a professional in the field of copywriting has concluded that the style of the ransom note and the typescript used in it indicate that the ransom note was the work of an experienced copywriter. The accused had such experience.

An examination of the envelope revealed that the ransom note had been posted on the 6th of May 1997 and processed via the South West mail centre, which is located at Leightonfield. The envelope was picked up from a street postal box. The location of the actual postal box is unknown; however, the letter would have been delivered within 24 hours of being processed at Leightonfield. The Leightonfield Mail centre covers an area from Bargo to the south, Silverwater to the north, Merrylands to the west, and Bankstown to the east.

Under police direction Mr. Whelan followed the instructions in the ransom note and inserted the required advertisement in the Daily Telegraph. The details of the note and in particular what was to be placed in the advertisement was kept confidential and was known only to a few police and a few select close family members and friends. The advertisement prompted no response from the kidnapper and neither did subsequent advertisements.

Kerry Whelan did not tell her husband of the accused's visit to the Kurrajong property on the 16th April 1997. On 10 May 1997, Amanda Minton-Taylor identified a photograph of the accused as the person who had visited the Kurrajong property on 6 April 1997.

On 21 May 1997 a massive five day police search began of the accused's property "Hillydale" at Bungonia in the Southern Highlands. This is a large bush property near precipitous cliffs and the area is dotted with disused mine shafts. No trace of Mrs. Whelan was found. When police searched the accused's house on the property they found a number of items including an almost empty bottle of chloroform, two "dot point" notes which have been identified as being in the accused's handwriting and a Canon brand typewriter model QS 100 equipped with a disposable carbon ribbon and daisy wheel.

In relation to the "dot point documents", the first was in the following terms: "1. Collection 2. Advisement 3. Waiting 4. How to proceed 5. Pick up 6. Cover all

The prosecution suggests this was an early outline of the planned kidnapping and that the points are references to the following:

Point 1. "Collection" is a reference to the collection of Kerry Whelan;

Point 2. "Advisement" is a reference to advisement of kidnapping in a ransom note to her family;

Point 3. "Waiting" is a reference to waiting until further instructions on how to proceed;

Point 4. "How to proceed" is a reference to how to proceed in delivery of the ransom;

Point 5. "Pick up" is a reference to pick up of the ransom; and

Point 5. "Cover all" is a reference to cover up of the crime.

The second contained the following: "1. Has been K 2. No P 3. Letter within 2 days 4. Nothing until received 5. Stress 2"

The prosecution suggests that this was an early outline of the ransom note and that the points are references to the following:

Letter within 2 days [to be received with further instructions]

Nothing until received [do nothing until second letter received]

The typewriter has been examined. The disposable carbon ribbon tape, the correction tape and the daisywheel found within the typewriter have been examined and those particular items do not reveal any type which would suggest that they were used in typing the ransom note or envelope. The typewriter itself, however, could have been used in the preparation of the ransom note if the user had installed a fresh carbon ribbon, corrector tape and different daisywheel.

The search of the accused's property which was conducted continuously between the 21st and 25th May 1997 was observed by a large media contingent and involved a large number of police. On the morning of 23 May 1997 (around 9.25 - 9.35 a.m.) a receptionist at Crown received a call from an anonymous male who told her to inform Mr. Whelan: "Mrs. Whelan is O.K. Mr. Whelan must call off the police and media today. Tell him, the man with the white Volkswagen."

At this point the receptionist asked the caller if she could transfer his call through to someone who could assist. The caller replied: "Stop and listen and write it down."

The receptionist then asked: "What man and what Volkswagen"

and the caller said: "Mr. Whelan will know, he must call off the media and police today … will be in touch in two weeks."

A check of the reverse call charge records for Crown of calls made around 9.30 am that morning show that a phone call was made from a public box outside the Empire Hotel at Goulburn to Crown at 9.21 am on 23 May 1997. When the accused was interviewed by police on 15 June 1997 about his movements on 23 May 1997, he admitted being in Goulburn on the morning of 23 May 1997 and making two phone calls from public phones, the first just after 9 a.m. from a phone at the post office and one 20 to 30 minutes later from the public phone box down the road outside the Empire Hotel. He claimed that the first call was to his solicitor which was unsuccessful and the second call was also to his solicitor which was successful. He claimed the purpose of this call was to confirm an appointment with his solicitor.

The accused's firm of solicitors kept a message book. All calls coming into the office were recorded one after another in the order in which the calls were received, but the times of the calls were not recorded. The firm's message book shows one call only was received from the accused that morning and that the accused was the second caller that day. The receptionist at the firm will confirm that the accused rang the firm after 9 a.m., she is unable to recall any details of the conversation and believes she may have then put the call through to a solicitor. Police have made enquiries of persons whose names are recorded after the accused's name in the message book and have established that the tenth caller to the office on that day made their call at 9.30 a.m.

It has also been established that the accused did make a second call to the firm of solicitors that day, but it was made in the afternoon. The receptionist recalls that the call was made between 2.00 pm and 4.00 pm and the accused left a message asking his solicitor to call him back and confirm an appointment.

The accused was interviewed by police on 21 May 1997 and 15 June 1997. The accused informed police that he stayed at the Bungonia property all day on the 6th of May 1997 and was incapacitated due to a back problem he developed on 2 May 1997. An examination of the accused's call charge records from Bungonia establishes that he made a call to his father at 7.28 a.m on 2 May 1997 and a further call to Dapto at 7.31 a.m. No other STD calls are recorded until 7 May 1997 at 7.37 a.m. when the accused again contacted his father.

The accused told police that on the 2nd of May 1997 he rang a doctor and complained of back problems. The doctor did not examine the accused but pinned a prescription to the clinic door for him. The accused never collected this prescription.

Bank records show that mid morning on the 5th of May 1997 the accused cashed a cheque for $150.00 at Goulburn. Police have also located a receipt from Woolworths at Goulburn which shows that a purchase was made from that store at 10.24 a.m that day, of two cartons of Victoria Bitter for the sum of $49.98. That receipt bears the accused's fingerprints.

Police have also established that on the 7th of May 1997 the accused contacted a physiotherapist and made an appointment to see her in relation to his back problem. The accused rang back the following morning and cancelled the appointment.

A telephone intercept was placed on the accused's telephone and a conversation was recorded between the accused and his neighbour of some years, Kevin Cooper, in which they briefly discuss a visit by he and his wife to a section of the accused's property known as "Rabbit Ears" on the 5th and 6th of May 1997. This caused police to interview Kevin Cooper and his wife, Beryl. Those enquiries established that on the 5th of May 1997 Kevin and Beryl Cooper visited "Rabbit Ears". Mrs. Cooper told police she then rang the accused that afternoon and left a message advising him that they had been on his property. Mrs. Cooper stated to police she was unsure but thought the accused may have returned her call the next day. Kevin Cooper stated that some time around lunch time on the 6th of May 1997 he and his son and an associate returned to "Rabbit Ears" to assess whether the area was suitable to grow pines but did not actually see the accused on that day. It is anticipated that Beryl and Kevin Cooper will now say that they are both sure one of them (but neither can recall exactly which one) spoke to the accused either by phone or UHF radio before lunch on the 6th of May 1997. The prosecution will suggest the evidence of both of these witnesses on this point is unreliable.

As at the 6th of May 1997 the accused had been unemployed for some years and had no real source of income. The property "Hillydale" was mortgaged and the accused was apparently living off money he had borrowed from his father. Police have established that on the 28th of February 1997 the accused spoke with an officer of the Tasmania Development and Resources Office in Hobart about the cost involved in establishing a vineyard in Tasmania and was told this would entail an outlay in the area of $600,000 to $750,000.

As at the 6th of May 1997 Mrs. Whelan had planned a number of future activities with friends and family members who she loved dearly. Her daughter was to have an operation soon after this date. On the day of her disappearance her son was home from school sick. As stated above she was to travel to Adelaide that day with her husband and she had told a number of persons before this how much she was looking forward to this trip. Since the 6th of May 1997 there has been no access on any of her credit or bank accounts and she had made no substantial withdrawals prior to this date. Immigration and medicare records show no entries for her since this date. The irresistible inference is that she is dead.

Mrs. Whelan disappeared on 6 May 1997. After parking her vehicle in the underground carpark of the Park Royal Hotel, she walked from the carpark to Phillip Street, Parramatta. She appears on the security video and is last seen at 9.38.03 am (on camera 3).

Mr. Burrell knew Mr. and Mrs. Whelan through Mr. Burrell's business dealings and later employment with Crown Equipment and through a friendship between them.

There had been no contact of any kind between Mr. Burrell and the Whelans for several years until 7 April 1997 when Mr. Burrell telephoned Mr. Whelan. Mr. Whelan saw no purpose in the call but did divulge to Mr. Burrell that he travelled to Adelaide every second Wednesday.

Mr. Burrell attended the Whelan residence at Kurrajong unannounced on Wednesday 16 April 1997 when Mr. Whelan was in Adelaide. Mr. Burrell and Mrs. Whelan spoke privately for an hour or more and after Mr. Burrell had left, Mrs. Whelan's mood changed. She asked an employee to keep Mr. Burrell's visit a secret and that she would say why in a couple of weeks.

Mr. Burrell arranged to meet Mrs. Whelan at Parramatta at 9.30 am on the day she disappeared.

A vehicle with the same features as a vehicle then in the possession of Mr. Burrell was seen standing outside the hotel at 9.01.24 and shortly afterwards to move forward to a position close to where Mrs. Whelan was last seen (camera 6).

Forty two (42) seconds after Mrs. Whelan was last seen this vehicle drove from this position in an easterly direction in Phillip Street (at 9.38.45 and 9.38.46 am, reflected image camera 7).

Enquiries from most of the owners of vehicles with the same features as Mr. Burrell's vehicle have established that their vehicle was not the vehicle seen outside the hotel.

On 7 May 1997, Mr. Whelan received a typed ransom note demanding A$1.25 million. Only a small number of people became aware of the ransom note and its contents.

There was no public announcement of Mrs. Whelan's disappearance until 21 May 1997.

On 10 May 1997, Mr. Burrell was identified as the visitor on 16 April 1997.

Intermittent surveillance of Mr. Burrell occurred from 11 May 1997 at and around Bungonia.

Commencing on 21 May 1997 police conducted a five day search of Mr. Burell's house and farm at Bungonia. Police seized:

(a) a Canon typewriter capable of producing the ransom note if a different daisy wheel and ribbon were used;

(b) an empty bottle containing traces of chloroform;

(d) two dot point notes consistent with the ransom note and kidnapping of Mrs. Whelan;

During the search police did not find hand-guns which Mr. Burrell then possessed.

A large number of police were involved in the search and a large number of media representatives were on the perimeter of Mr. Burrell's farm.

On 23 May 1997, Mr. Burrell borrowed a vehicle from a neighbour and drove into Goulburn h where he made several phone calls. At least one call was made from a public telephone box outside the Empire Hotel at about 9.20 am.

At 9.21 a.m. on 23 May 1997 a receptionist with Crown Equipment Pty Limited received a telephone call from a male caller who wanted a message relating to Kerry Whelan's disappearance conveyed to Mr. Whelan. The caller spoke of concern for the presence of police and media and revealed he had intimate knowledge of the content of the ransom note. This call was made from the public telephone box outside the Empire Hotel at Goulburn.

On 12 May 1997 Mr. Whelan's message to the kidnapper was published in the Daily Telegraph (it ran for a week).

On 13 May 1997 Mr. Burell was seen to purchase a Daily Telegraph in Goulburn.

Mrs. Whelan was happily married, with three children (one of whom had a serious medical problem). She and Mr. Whelan were wealthy, had many friends, had made plans for future overseas travel and there is no apparent reason why the would disappear in the absence of foul play. There has been no access to bank accounts, medicare card, etc.

Mr. Burrell created a false alibi for his whereabouts at the time of Mrs. Whelan's disappearance.

Mr. Burell lived on an isolated property which bordered on a large area of rugged terrain and cliffs where a body could be hidden and never found. Mr. Burrell has intimate knowledge of this area.

Prior to the disappearance of Mrs. Whelan, Mr. Burrell had been unemployed for a number of years and in financial difficulties to the extent that he had to sell off his stock and some farm equipment and had to borrow from his father to meet mortgage repayments on the property.

Despite his impecuniosity Mr. Burrell had planned to set up a vineyard in Tasmania which would have required substantial investment.

There are indications that the author of the ransom note had a background in copywriting. Mr. Burrell had such a background.

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