Citation: Regina v Burrell [2004] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 11 June 2004
Judge(s): Spigelman CJ, Bell J, Hislop J
Background
The applicant faced charges of kidnapping and murder in connection with the disappearance of a woman who was last seen in May 1997 and has not been seen since. He was first arrested in April 1999 and committed for trial. After a series of evidentiary rulings excluded some Crown evidence, a nolle prosequi (a formal discontinuation of proceedings) was filed in April 2001 and the applicant was discharged.
The Director of Public Prosecutions accompanied the nolle prosequi with a letter stating that proceedings might be re-instituted if "sufficient additional evidence of guilt" became available. A subsequent coronial inquest was held in 2002, and in September 2002 the Crown filed a fresh indictment. Wood CJ at Common Law refused both a stay based on abuse of process and a stay based on prejudicial adverse publicity.
The applicant sought leave to appeal to the Court of Criminal Appeal against those refusals. He sought either a permanent stay or, alternatively, a temporary stay that could be lifted only if sufficient new evidence of guilt emerged.
Legal Issues
- Whether the Crown's written representation in the nolle prosequi letter, together with the Director of Public Prosecutions' own published guidelines, meant that re-instituting the prosecution constituted an abuse of process for want of consistency and disinterestedness in the administration of criminal justice
- Whether evidence arising from the subsequent coronial inquest qualified as "sufficient additional evidence" capable of justifying the re-institution of proceedings
- Whether the volume and intensity of adverse pre-trial publicity was so great as to render a fair trial impossible, warranting a permanent or temporary stay
Decision
On the abuse of process ground, the Court of Criminal Appeal held that there is no principle of estoppel in criminal law and that prosecutorial decisions are not directly controlled by the courts. While the Crown's letter and the Director's guidelines were relevant considerations, neither created a binding obligation that precluded re-institution of proceedings. The critical question was whether the Director had, in good faith, formed the view that new evidence warranted a change of position.
The Court found it was open to the Director to conclude that evidence obtained through the coronial inquest constituted sufficiently new and significant material to justify re-charging the applicant. The fact that the inquest itself followed from the original nolle prosequi did not disqualify the resulting evidence from consideration. Where a Director, acting in good faith, determines that new evidence changes the earlier judgment, the courts should not characterise the re-institution of proceedings as an abuse of process.
On adverse publicity, the Court agreed with Wood CJ at Common Law that the passage of time, combined with appropriate jury directions, would sufficiently attenuate the impact of earlier publicity on the fairness of trial. No error was identified in the primary judge's statement of principle or in its application to the facts. Spigelman CJ added an observation that the growing accessibility of internet material through modern search engines may now warrant additional practical measures, such as requesting Australian-based websites to remove references to an accused for the duration of a trial, alongside conventional jury directions.
Leave to appeal was refused unanimously. Bell J and Hislop J agreed with Spigelman CJ's reasons without addition.
Orders Made
- Leave to appeal refused
- No publication of the matters set out in paragraphs [21] to [35] of the judgment until the conclusion of the last to occur of the prosecution of the applicant on charges relating to Mrs Davis and Mrs Whelan
- The judgment not to be placed on the Supreme Court website until the same time
Key Takeaways
- A formal letter from the Director of Public Prosecutions stating that proceedings may be re-instituted if sufficient new evidence emerges does not create an estoppel or a binding obligation enforceable against the Crown in subsequent abuse of process applications.
- The Director's own published guidelines on reversing directions are relevant to any abuse of process argument, but do not of themselves prevent re-institution of proceedings where the Director in good faith concludes that new evidence warrants a changed position.
- Evidence obtained through a coronial inquest held after a nolle prosequi was entered is capable of constituting "sufficient additional evidence" justifying a fresh indictment, even though the inquest followed from the original discontinuation.
- Adverse pre-trial publicity does not automatically warrant a permanent stay: the Court of Criminal Appeal confirmed that the passage of time combined with strong jury directions can sufficiently address prejudice, and that this assessment is a matter for the trial judge's discretion.
- Spigelman CJ noted that the increasing accessibility of internet material through contemporary search engines may require pre-trial Crown searches and requests to remove references from Australian-based websites, in addition to jury directions, to help secure a fair trial in high-profile matters.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
Cases
- Director of Public Prosecutions South Australia v B (1998) 194 CLR 566
- Davis v Gall (1924) 35 CLR 275
- Broome v Chenoweth (1946) 73 CLR 583
- R v Swingler (1995) 80 A Crim R 471
- Question of Law Reserved on Acquittal (3 of 1995) (1996) 88 A Crim R 1
- Walton v Gardiner (1993) 177 CLR 378
- Jago v District Court of NSW (1989) 168 CLR 23