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17
Court of Criminal Appeal 16 March 2007

BURRELL v R

[2007] NSWCCA 65

Also reported as (2007) 190 A Crim R 148
HomicideTheft & property
CRIMINAL LAW APPEAL CRIMINAL TRIAL MURDER EVIDENCE BURDEN OF PROOF

Citation: Burrell v R [2007] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 16 March 2007
Judges: McClellan CJ at CL, Sully J, James J

Background

The appellant was convicted at his second trial (the first jury having been unable to agree) of the kidnapping and murder of Kerry Whelan, who disappeared on 6 May 1997 and whose body was never found. The Crown case was entirely circumstantial. The prosecution alleged the appellant, who had a prior business and social relationship with the victim's husband, abducted Mrs Whelan from outside a Parramatta hotel and killed her, with financial gain as his motive.

The trial ran before Barr J and a jury for approximately three months in 2006. After eight days of deliberations, a juror sent a note to the trial judge indicating the jury could not agree and that further deliberations would be futile. The trial judge declined to discharge the jury and instead gave a direction in accordance with Black v The Queen (1993) 179 CLR 44, encouraging the jury to continue deliberating. The jury returned guilty verdicts on both counts the following day.

The appellant was sentenced to life imprisonment on the murder count and sixteen years imprisonment (with a twelve-year non-parole period) on the kidnapping count. He appealed both his conviction and the severity of his sentences.

  • Whether the Crown had properly established guilt beyond reasonable doubt on the circumstantial evidence, including whether each essential intermediate fact was itself proved to the requisite standard
  • Whether any reasonable hypothesis consistent with innocence remained open on the evidence, including whether alleged inadequacies in the police investigation weakened the Crown case
  • Whether the trial judge erred in his rulings under s 137 of the Evidence Act (restricting use of certain evidence on the basis of unfair prejudice) and s 38 (dealing with unfavourable witnesses)
  • Whether the jury process was irregular, in particular concerning the juror's note, the trial judge's response to it, and whether the Black direction was properly given
  • Whether any juror bias or disqualification arose from the circumstances of the juror's note, rendering the verdict unsafe and unsatisfactory
  • Whether the sentence of life imprisonment for a planned killing for financial gain was manifestly excessive

Decision

The Court of Criminal Appeal dismissed the conviction appeal. On the circumstantial evidence grounds, the Court examined the principles from Shepherd v The Queen (1990) 170 CLR 573 and Barca v The Queen (1975) 133 CLR 82 concerning intermediate facts and inferences of guilt. The Court was satisfied the jury was properly directed and that the evidence, taken as a whole, supported the verdicts. Any hypothesis consistent with innocence needed to be a reasonable possibility rather than mere speculation or conjecture, and the Court concluded no such hypothesis remained open on the evidence as properly assessed.

On the evidentiary grounds, the Court found no error in the trial judge's rulings under ss 137 and 38 of the Evidence Act. The probative value of the relevant evidence was found to significantly outweigh any danger of unfair prejudice, and the treatment of the unfavourable witness was within the proper exercise of the trial judge's discretion.

On the jury irregularity grounds, the Court affirmed that communications between a jury and the trial judge must be disclosed in open court, and examined whether the manner in which the juror's note was handled gave rise to a reasonable apprehension of juror bias or disqualification. The Court found no such apprehension was established, and the Black direction given to encourage the jury to continue deliberating was appropriate in the circumstances. The verdict was not unsafe or unsatisfactory.

On sentence, the Court granted leave to appeal but dismissed the sentence appeal. McClellan CJ at CL characterised the offending as a planned killing for financial gain, equating it in moral culpability with contract killing. The Court accepted that while not every premeditated, financially motivated murder attracts a life sentence, the circumstances here placed the offending in the worst category of case. The life sentence was held to be neither excessive nor erroneous.

Orders Made

  • Conviction appeal dismissed
  • Leave to appeal against sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • A hypothesis consistent with innocence in a circumstantial case must amount to a reasonable possibility, not mere speculation or conjecture; the existence of gaps or inadequacies in a police investigation does not automatically require an acquittal, though it may be capable of weakening the Crown case.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that each essential intermediate fact in a circumstantial case must be proved beyond reasonable doubt, applying the principles from Shepherd v The Queen and Barca v The Queen.
  • Where a juror sends a note indicating deadlock, the trial judge's response and any direction given must be disclosed and managed in open court; the Black direction (encouraging the jury to continue deliberating) remains a proper judicial tool in appropriate circumstances.
  • A planned killing for financial gain, where the offender both initiates the enterprise and carries out the murder, may be equated with contract killing and placed in the worst category of murder, attracting the maximum penalty of life imprisonment.
  • No error was established in the trial judge's exercise of discretion under ss 137 and 38 of the Evidence Act where the probative value of contested evidence significantly outweighed any risk of unfair prejudice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 90A
- Jury Act 1977 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW), ss 38, 137
- Criminal Appeal Rules

Key Cases
- Shepherd v The Queen (1990) 170 CLR 573
- Barca v The Queen (1975) 133 CLR 82
- Black v The Queen (1993) 179 CLR 44
- M v The Queen (1994) 181 CLR 497
- Webb and Hay v The Queen (1996) 181 CLR 41
- Domican v The Queen (1991) 173 CLR 555
- R v Glasby (2000) 115 A Crim R 465
- R v Lewis [2001] NSWCCA 448
- Kalejich (1997) 94 A Crim R 41
- R v Burrell [2004] NSWCCA 185 (first trial)

Note: Special leave to appeal to the High Court was subsequently granted on limited grounds, and the appeal was allowed: Burrell v R [2008] HCA 34. Practitioners should read this decision in light of that subsequent High Court determination.