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Court of Criminal Appeal 10 March 2006

REGINA v Bruce Allan BURRELL

[2006] NSWCCA 74

Homicide
PRACTICE AND PROCEDURE PRACTICE AND PROCEDURE WHETHER PRE PRACTICE AND PROCEDURE PRACTICE AND PROCEDURE

Citation: Regina v Bruce Allan Burrell [2006] NSWCCA 74
Court: New South Wales Court of Criminal Appeal
Date: 10 March 2006
Judge(s): Spigelman CJ, Simpson J, Johnson J

Background

The applicant was facing a second murder trial in the Supreme Court after the jury in his first trial, concluded in November 2005, failed to reach a unanimous verdict. The case had attracted significant media attention both before and during the first trial. Following the jury's discharge, several media outlets published speculation about the nature of the jury's deliberations, including suggestions that a majority of jurors had favoured a guilty verdict.

Before his first trial, the applicant had made a similar application to stay or adjourn proceedings on the basis of pre-trial publicity. That application was refused by Wood CJ at CL, and an appeal against that refusal was also dismissed. The prior publicity formed part of the background to the application before Barr J.

With his retrial scheduled to begin the following Monday, the applicant applied to Barr J for either a permanent stay of the proceedings or an adjournment, on the basis that the post-discharge publicity would prevent a fair trial. Barr J dismissed that application, and the applicant sought leave to appeal against that interlocutory decision under s 5F of the Criminal Appeal Act 1912.

  • Whether the pre-trial publicity arising from the failure of the first jury to agree was of such exceptional character that a fair retrial was impossible, warranting a permanent stay.
  • Whether an adjournment was justified given the nature and extent of that publicity.
  • Whether directions to the jury panel during jury selection would sufficiently address any risk of prejudice arising from adverse publicity.
  • Whether a direction to the jury not to conduct their own research, including internet research, would be sufficient to remove the risk of prejudice.

Decision

The Court of Criminal Appeal refused leave to appeal, finding that the applicant had not demonstrated any reviewable error in Barr J's discretionary judgment on practice and procedure. The Court noted that it is generally reluctant to intervene in discretionary decisions of this kind, and that an applicant must identify an error of the kind that would justify appellate review.

On the question of exceptional character, Spigelman CJ found that the publicity did not meet the required threshold. The primary publications were described as ephemeral: one radio broadcast in Sydney, one in southern New South Wales (an area unlikely to produce jurors), and a single newspaper article accessible via an offshore website through a Google search. All of these had occurred four months before the retrial. While speculation about a previous jury's leanings is capable of generating prejudice, the nature and extent of this publicity was not of the exceptional character required to justify a permanent stay or adjournment.

Spigelman CJ rejected the argument that Barr J had applied a legally incorrect test by stating he was "bound to proceed" on the basis that juries obey directions. His Honour characterised that statement as a conclusion drawn from judicial experience rather than a legal compulsion, and held that Barr J was entitled to rely on his own experience that juries follow directions and decide cases on the evidence before them.

On the internet research ground, the Court noted that accessing the internet during a trial had become a criminal offence under s 65(c) of the Jury Act 1977, and that courts routinely direct jurors not to do so. The suggestion that prospective jurors might have already researched the case before the trial was rejected, on the basis that jurors do not know in advance what trial they will be empanelled for. Barr J's conclusion that directions reinforced by the criminal sanction would be obeyed was, in the Court's view, plainly open to him.

Orders Made

  • Application for leave to appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that appellate intervention in discretionary practice and procedure rulings is available only where an error of a kind open to review has been demonstrated; the mere availability of different judicial conclusions is insufficient.
  • Adverse media publicity arising from a hung jury, including speculation about the majority view of the earlier jury, does not automatically reach the threshold of "exceptional character" required to justify a permanent stay or adjournment of a retrial.
  • A refusal of leave to appeal against an interlocutory stay or adjournment decision does not foreclose the possibility of raising related grounds in a post-conviction appeal, although the availability of those grounds will depend on how the trial is ultimately conducted.
  • Where a trial judge indicates an intention to direct the jury panel during selection, and to give standard directions to decide the case on evidence alone, those measures are relevant considerations weighing against a pre-trial stay or adjournment.
  • Under s 65(c) of the Jury Act 1977, accessing the internet during a trial is a criminal offence, and the combination of that provision and a judicial direction provides a sufficient basis for concluding that jurors will refrain from conducting their own online research.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Jury Act 1977 (NSW), s 65(c)

Cases:
- No specific cases were cited by name in the text provided. The judgment references earlier applications by the same applicant refused by Wood CJ at CL and on appeal in the Court of Criminal Appeal, but those decisions are not identified by citation in the available text.