REGINA v BURRELL

FILE NUMBER(S) : CCA 60004/04 COUNSEL : M Sexton SC / Ms L Wells / Dr J Quilter (Crown) B Walker SC / D Dalton (Burrell) SOLICITORS : Director of Public Prosecutions (NSW) (Crown) Nina Thompson - Legal Aid Commission (Burrell)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70085/02 FILE NUMBER(S) : LOWER COURT Wood CJ at CL JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060004/04

SPIGELMAN CJ BELL J HISLOP J

Friday, 11 June 2004 REGINA v Bruce BURRELL Judgment 1 SPIGELMAN CJ: This is an Application for Leave to Appeal under S5F(3)(a) of the Criminal Appeal Act 1912 from an interlocutory judgment of Wood CJ at CL. His Honour rejected an application for a stay of the prosecution in relation to the kidnapping and murder of Mrs Whelan. The Applicant seeks a permanent stay or, in the alternative, a temporary stay on the basis of abuse of process. The temporary stay sought would be conditional in that proceedings could be reinstated "if sufficient additional evidence of guilt becomes available". Mr B Walker SC, who appeared for the Applicant, placed particular reliance on the temporary stay alternative. Furthermore, the Applicant seeks a stay on the basis of actual prejudice based on adverse publicity. Wood CJ at CL refused a stay on both bases. 2 His Honour's judgment of 19 December 2003 in the matter of Regina v Bruce Burrell, which encompassed issues from which there is no appeal, is the subject of an order by his Honour restricting publication. For that reason it has not been given a medium neutral citation reference. Nor has it been placed on the Supreme Court website. 3 The basic facts are not in issue. They are fully and accurately set out in the judgment of Wood CJ at CL. There has been no challenge to any of his Honour's findings of fact. It is sufficient, for present purposes, to outline a summary of the basic facts: Mrs Whelan left her home at Kurrajong on 6 May 1997 and after being seen walking out of the Park Royal Hotel carpark in Phillip Street, Parramatta, has not been seen since. On 1 April 1999, Mr Burrell was arrested and charged with the kidnapping and murder of Mrs Whelan. He was committed for trial and at an arraignment on 5 May 2000, the trial date was fixed for 29 January 2001. On 29 January 2001 Mr Burrell appeared for trial before Mr Justice Sully of the Supreme Court. A series of voire dire hearings were conducted in relation to various aspects of the evidence. Some of the evidence proposed to be relied upon was rejected by Sully J. On 1 March 2001, an Application for a nolle prosequi on the part of Mr Burrell was referred to the Director of Public Prosecutions. On 6 March 2001, the day fixed for trial, a stay application was foreshadowed by Counsel for Mr Burrell. This was adjourned to allow the Director of Public Prosecutions to consider the nolle prosequi application and also to obtain certain DNA tests. On 14 and 27 March and 4 April 2001 there was correspondence on behalf of Mr Burrell relating to the application. On 17 April 2001 a nolle prosequi was filed in relation to both counts on the indictment. On 18 April 2001 the Director of Public Prosecutions wrote to the Solicitor for Mr Burrell in terms which I will set out below. On 19 April 2001 Mr Burrell was discharged. Between 20 May 2002 and 25 June 2002 an inquest was conducted into the deaths and/or disappearances of Mrs Whelan and another woman, Mrs Davis. I note that an application for leave to appeal from Wood CJ at CL's judgment refusing a stay in the case of Mrs Davis was discontinued. On 25 June 2002 the Coroner delivered a report in relation to the inquest to the Director of Public Prosecutions. On 23 September 2002 the Director of Public Prosecutions filed an ex officio indictment in relation to Mrs Whelan. 4 In his judgment of 19 December 2003, Wood CJ at CL refused the Crown application that the trials with respect to Mrs Davis and Mrs Whelan proceed together. He ruled again on a number of issues of admissibility of disputed evidence which had earlier been considered by Sully J. He rejected stay applications in the case of both the Whelan indictment and the Davis indictment.

The Unfairness Issue 5 The principal proposition advanced on the part of the applicant/appellant is that the continuation of the prosecution, or at least its continuation unless sufficient additional evidence of guilt becomes available, constitutes an abuse of process on the basis of a breach of the principle of fairness. Specifically, it is submitted, that the Crown should be held, in the interests of a consistent and disinterested administration of criminal justice, to its earlier representations that unless there was some such additional evidence, proceedings would not be re-instituted. 6 The critical letter was written on behalf of the Director of Public Prosecutions and is dated 18 April 2001. It said: "I wish to advise that after careful consideration of this case, the Director of Public Prosecutions has made the decision to proceed no further on the above outstanding charges. Please be advised that the proceedings may be re-instituted if sufficient additional evidence of guilt becomes available".

This letter was forwarded with respect to both the charge of kidnapping and the charge of murder. 7 The abuse of process, it is submitted, is reinforced by the Director's own published Guidelines with respect to the determination of matters of this character. Those Guidelines include the following paragraph:- "3. Where a direction has been given in a matter to proceed or to take no further proceedings, that direction will not be reversed unless significant new facts warrant it, the direction was obtained by fraud or the direction was obtained or made on erroneous material and the interest of justice require a reversal." 8 Mr Walker SC submitted that the combination of these two matters, i.e. the express representation and the general policy, was such that in the circumstances of the present case, including the conduct of an inquest, it would be an abuse of process to permit the proceedings to be reinstituted, at least in the absence of any substantial new evidence. There was, he submitted, a requirement of consistency in the administration of criminal justice. This requirement was reinforced by the principle of disinterestedness on the part of the prosecution. 9 The relevant legal principles were set out by Wood CJ at CL at paragraphs [187]-[203] of his Honour's Judgment. I incorporate those paragraphs by reference. Mr Walker SC accepted that his Honour accurately stated the relevant legal principles. In particular it was accepted that there was no principle of estoppel in the criminal law, nor were prosecutorial decisions subject to control by the courts. Nevertheless, the interests of consistent and disinterested administration of criminal justice, it was submitted, required that the Director of Public Prosecutions not be permitted to resile from his position with respect to the nolle prosequi in the instant case. 10 The Applicant referred to certain observations of Kirby J in Director of Public Prosecutions South Australia v B (1998) 194 CLR 566 where his Honour said at 603: "Short of refusing to accept the entry of a nolle prosequi, a judge could properly make plain an opinion that, in the absence of significantly new evidence, the commencement of such proceedings would constitute an abuse of process". 11 This sentence appears in a context where his Honour was listing, in a dissenting judgment, a number of arguments against the existence of a power in the courts to refuse to accept a nolle prosequi. The introductory words of the sentence: "Short of refusing to accept the entry …" make it clear that the expression of the "opinion" was a matter for the judge at the first abandoned trial. 12 No doubt such an opinion would be a relevant consideration for the judge hearing an application for a stay of a subsequent indictment on the basis of abuse of process. In the present case, Sully J expressed no such opinion. Indeed, it is by no means clear that such an opinion could be properly expressed where, as here, the nolle prosequi was requested by an accused. An accused must be taken to understand the difference between a nolle prosequi and a verdict by direction. (See e.g. Davis v Gall (1924) 35 CLR 275 at 287; Broome v Chenoweth (1946) 73 CLR 583 at 599; R v Swingler (1995) 80 A Crim R 471 at 479-480; Question of Law Reserved on Acquittal (3 of 1995) (1996) 88 A Crim R 1 at 115-11.) 13 As Wood CJ at CL concluded, the views expressed by Kirby J do not suggest a rule that in the absence of "significantly new evidence" a further prosecution will generally, let alone must, constitute an abuse. 14 Mr Walker SC struggled to identify any relevant error of principle in his Honour's reasons. He suggested that such does appear in the following passage in his Honour's judgment: "[218]. The decision, in the present case, to re-initiate the proceedings was made by the Director following the Inquest, and in the expectation that several items of evidence previously examined could be properly tendered. It cannot be said that those items, which I have ruled to be inadmissible have no probative value, their exclusion having been determined by my assessment of their potential prejudicial effects. Being satisfied that there is no basis for finding that the Director acted male fide in deciding to file a nolle, and in now presenting an ex officio indictment, the relevant question, it seems to me, now passes on and becomes one for the Court to determine by reference to, whether there would be an unfairness in the continuation of the proceedings such that Mr Burrell could not get a fair trial." 15 It was submitted that his Honour applied a narrower test than he should have. The issue was not simply whether or not Mr Burrell could get a fair trial. The issue was whether or not the principle of fairness, beyond that of a fair trial, was such that the institution of the proceedings constituted an abuse. Courts may not be "converted into instruments of injustice and unfairness". (Walton v Gardiner (1993) 177 CLR 378 at 392-393. See also Jago v District Court of NSW (1989) 168 CLR 23 esp at 28-30.) 16 His Honour had, however, acknowledged in his earlier consideration of the relevant authorities, that the principle was not limited to the possibility of a fair trial. His Honour was not intending, in the passage emphasised, to do anything other than to highlight a significant aspect of the matters which fell for his consideration as indicated in the immediately succeeding paragraph. 17 His Honour went on immediately to say: "[219] Although the additional evidence which I have ruled admissible in relation to the Whelan indictment falls within a narrow compass, it does provide some additional support for the prosecution. More importantly, when the case is viewed as a whole, and when attention is given to the various matters which are later examined in relation to the foredoomed failed argument, I find that the Crown case in relation to both indictments is one that, on a prima facie basis, is well capable of being accepted by a jury."

These observations are not directed to fair trial considerations.

18 The fact that his Honour was not applying a narrow test is further confirmed in the succeeding paragraphs. In par [220] his Honour emphasised that he had expressed his opinion on a prima facie basis and went on to say at [221] that the issues involved were jury questions. He added:- "[221] …… moreover, there is a significant public interest which would require the trials, which involve allegations of the most serious criminal conduct, should not be lightly left unredressed unless there is a real and tangible unfairness or an abuse of the court's process of the rare and special kind, of which the authorities speak: In particular, see Barton v The Queen for an affirmation of the public interest and of the exceptional jurisdiction involved. [222] Accordingly, I am unpersuaded that unfairness or abuse has been shown, arising out of the nolle prosequi, or out of the presentation or re-presentation of the two indictments, sufficient to stay the indictment on this basis." 19 His Honour's reference to questions of "unfairness" and of "abuse" in pars [221] and [222] indicate that he was not only concerned with the question of "a fair trial". His Honour was well apprised of the question of fairness and of alleged abuse raised by the Applicant before him. I can detect no relevant legal error. No basis for this Court to intervene with his Honour's discretionary decision has been shown. 20 Nor, in my opinion, has the Applicant established any relevant abuse, or unfairness, of any kind. 21 As quoted above, his Honour made reference to the fact that he had affirmed the ruling of Sully J with respect to the discretionary rejection of evidence. He had, however, admitted one piece of evidence that was available at the time of the first trial but not pressed before Sully J. This was an annotation in the Applicant's street directory of the address of the Park Royal Hotel, where Mrs Whelan was last seen. His Honour also admitted a statement by Mr Buckley which was not tendered before Sully J, to which I will refer below. 22 In par [219], quoted above, his Honour described the additional evidence as being "within a narrow compass". That may be so but the fact that there is additional evidence affects the issue of fairness. His Honour concluded that the annotation in the street directory "does have potential probative value" ([50] and [55]). The evidence of Mr Buckley, his Honour said, "would have probative value of some significance going to motive" [138] and that "the evidence has significant probative value" ([141]). 23 His Honour summarised the nature of Mr Buckley's evidence in par [126] as follows: "[126] The substance of the evidence which, the Crown submits, he would be able to give concerning Mr Burrell's financial position, is to the following effect: (a) he had first met Mr Burrell in late June 1995, while he was working for Ultra Tune, and while Mr Burrell was working with Peter Grace, whose firm acted as the advertising agent for Ultra Tune; (b) following a falling out with Mr Grace in late 1995, he became the subject of some court proceedings in Melbourne, in which Mr Grace was to be a witness on the opposing side. (c) in the course of these proceedings, in April 1997, Mr Burrell offered to provide him with an affidavit or statement that would assist his case, but made his signature of it, or his provision of evidence, conditional upon payment of a sum of money ($15,000) - an offer which Mr Buckley refused on legal advice; (d) Mr Burrell asked him during 1997 to provide a letter advising, untruthfully, that he was on the payroll of Ultra Tune, and was receiving a salary of $80,000 per annum, which he could then use in order to obtain a bank loan - a request with which he did not comply; (e) Mr Burrell aggressively pestered him for money during 1997, indicating that he was desperate, and observing, on one occasion, words to the effect 'you'd better fucking get the money for me … make it fucking happen'. (Exhibit V)." 24 His Honour went on to note the evidence that Mr Buckley gave at the inquest with respect to the communications in early 1997 in which he described Mr Burrell's position in the following way: "He was desperate". 25 This evidence supported the Crown case that Mr Burrell's motivation for kidnapping Mrs Whelan was for the purposes of a ransom occasioned by the desperate state of his financial situation at the time. The nature of the Crown circumstantial case in this regard was set out in a document presented to Wood CJ at CL and quoted in his judgment of which the first seven paragraphs were as follows:- "1. Bruce Burrell knew Kerry Whelan and Bernie Whelan. 2. Burrell knew the Whelans were wealthy. 3. By early 1997, Burrell's financial position had become particularly precarious. He was unemployed. After the divorce, in December 1996, from his wife, Dallas, who had been financially supporting him for some years, he had little cash, was selling assets and borrowing from his father to meet mortgage payments on the property at Bungonia, which he had acquired in a property settlement. 4. In January or February 1997, in financial desperation, Burrell attempted to obtain from an acquaintance, Peter Buckley, a false letter of employment for the purpose of fraudulently obtaining a further bank loan. 5. Burrell later aggressively demanded money from Buckley. 6. In January 1997, Burrell told a female friend, Cathie Tulloch, that he had been looking for a property to buy in Tasmania. He asked her whether she was interested in moving there with him. She declined. 7. In February 1997, Burrell made enquiries about buying a property in Tasmania to set up a winery at a minimum cost of about $600,000-$750,000." 26 Sully J had rejected the tender of the evidence marked 6-7 with respect to the expression of interest about the acquisition of the property in Tasmania. In his judgment, Wood CJ at CL came to the same conclusion. As a result of this exclusion, the evidence of Mr Buckley was the only evidence of motive beyond that referred to in the point marked 3, i.e. Mr Burrell selling assets and borrowing from his father. It is not, however, pertinent, contrary to the Appellant's submission, that there was other evidence of financial need. In any event, the prosecution is not, within reason, limited to relying on only some of the evidence available to it. 27 The evidence of Mr Buckley is reasonably contemporaneous with the alleged kidnapping and does add evidence of significance on the critical question of motive. His Honour described its probative value as "significant". He also refused to exclude the evidence under either s135 or s137, for reasons which appear to me to be correct and, on any view, were open to his Honour. 28 It is in this context that the decision of the Crown to reinstitute the proceedings must be assessed. It is of considerable significance that the Director of Public Prosecutions was not aware of this evidence. The evidence was known to the police. Mr Buckley had made a statement to them. However, that evidence was acquired in connection with the investigation by the police into the disappearance of Mrs Davis. It did not come to the attention of the Director of Public Prosecutions until after the trial before Sully J had terminated. Apparently a claim of public interest in the interview had been made and granted, until such time as Mr Buckley gave evidence at the inquest. It was only at that time that the Director of Public Prosecutions considered the possible relevance of the evidence in support of other evidence relating to Mr Burrell's financial difficulties in 1997. 29 In his submissions, Mr Walker SC indicated that it had been known to the Crown in a general sense. It may be that the Crown is indivisible, but any appraisal by the public of the fairness of conduct by the prosecution must accept that the Crown is constituted by a number of separate organisational units. 30 Where relevant evidence of significant force is not known to the Director of Public Prosecutions, although it is known to other agencies of the Crown, the question of abuse or unfairness is placed in a distinctively different light. As Wood CJ at CL concluded: "[143] I am also satisfied that although the relevant material was known to the police by the time that the matter came before Mr Justice Sully, it had not been available to the Director of Public Prosecutions. Although neither 'fresh, nor 'new', in any strict sense of those expressions, as used, for example, in R v Bikic [2002] NSWCCA 227 and Gallagher v The Queen (1985) 160 CLR 392, it was, in my view, properly capable of being taken into account when the decision was taken to re-present the Whelan indictment. To that I will return when I come to consider the abuse of process issue." 31 Mr Buckley's evidence is capable of falling within the exceptions in the letter and the Guideline, so that the assertion by the Applicant of inconsistency is not made out. 32 With respect to the published Guideline, it appears to me to be open for the Director of Public Prosecutions to take the view that the original nolle prosequi was "made on erroneous material". That is to say, it was made on incomplete material and was, in that sense, erroneous. It is, in my opinion also open for the Director to regard the evidence as "significantly new evidence", to use the terminology of the letter. As long as such a conclusion is open, it is not appropriate for the Courts to inquire into the actual decision-making process. 33 His Honour expressed the view that the new evidence was "in a narrow compass". This was not necessarily an observation directed to dismissing the significance of the evidence. The statement of Mr Buckley was not wide ranging in its scope but it was capable of adding to the strength of the Crown case on the issue of motive. As noted, his Honour referred to the evidence as "significant" in its probative value and refused to exclude it on discretionary grounds. 34 Where, as here, there is pertinent new evidence, the principle of fairness invoked on the part of the Applicant is not such as to suggest that the prosecution decision to re-institute the proceedings constitutes any kind of abuse. 35 Where, as here, it is open for the Director of Public Prosecutions to decide that the additional evidence, of which he only became aware after the issue of the nolle prosequi, was of such a character as to change the judgment which he had originally made, the Courts should not hold that the re-institution of a prosecution constitutes an abuse.

Adverse Publicity 36 His Honour's judgment at [236]-[285] considered the relevant legal principles and set out the relevant facts including a succinct summary of the adverse publicity. I incorporate those paragraphs in these remarks. 37 It was open to his Honour to conclude that, subject to appropriate directions, the passage of time would sufficiently attenuate the impact of the considerable body of publicity on the fairness of the Applicant's trial. This Court should not interfere with his Honour's exercise of his discretion in this regard. 38 Furthermore, no error of any character has been identified in his Honour's statement of principle or in the application of the principles to the facts he found. I would come to the same conclusion for precisely the same reasons as expressed by Wood CJ at CL. 39 The extent and intensity of the publicity to which the Applicant has been subject may require measures to ensure a fair trial additional to those to which Wood CJ at CL made reference. The accessibility of information on the internet has been enhanced by contemporary search engines to such a degree that special measures are now called for. In addition to strong warnings to the jury, it may be advisable for the Crown to conduct searches in advance of a trial and request Australian based websites to remove references to an accused for the period of a trial.

Orders 40 In my opinion leave to appeal should be refused. 41 A non publication order should be made, albeit not one that encompasses the making and rejection of the application before this Court. The restriction should apply to the evidentiary matters referred to in the judgment. I propose the following orders:

1. Leave to appeal refused. 2. Order that there be no publication of the matters set out in pars [21]-[35] of this judgment until the conclusion of the last to occur of the prosecution of the Applicant on charges with respect to Mrs Davis and Mrs Whelan. 3. Direct that this judgment not be placed on the Supreme Court website until the time specified in Order 2. 42 BELL J: I agree with Spigelman CJ. 43 HISLOP J: I agree with Spigelman CJ. **********

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