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8
Court of Criminal Appeal 23 March 2007

BURRELL v R

[2007] NSWCCA 79

Public order & justice offences
CRIMINAL LAW APPLICATION TO REOPEN CRIMINAL APPEAL FUNCTIONS OF JUDGES

Citation: Burrell v R [2007] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 23 March 2007
Judge(s): McClellan CJ at CL; Sully J; James J

Background

The Court of Criminal Appeal had delivered judgment on 16 March 2007 dismissing the respondent's appeal against his conviction. The Registrar entered that order on the same day, without any request from the parties.

Following the delivery of judgment, it emerged that the Court had, in parts of its reasons, proceeded on a misunderstanding of the evidence at trial. The parties agreed that certain facts referred to in the judgment had not actually been admitted into evidence during the proceedings. The Crown then applied to the Court to reopen the appeal in the interests of justice.

The respondent raised two preliminary objections: first, that the Court lacked jurisdiction to reopen the matter once judgment had been delivered and the order perfected (that is, formally entered); and second, that even if jurisdiction existed, the application should be heard by a differently constituted bench to avoid any apprehension of bias arising from the Court's earlier exposure to the erroneous material.

  • Whether the Court of Criminal Appeal has jurisdiction to reopen a matter after judgment has been delivered and the order perfected
  • Whether the same bench should determine the reopening application, or whether apprehended bias required the matter to be referred to a differently constituted court
  • Whether the factual errors in the original judgment were material to the outcome, such that the order dismissing the appeal should be disturbed

Decision

Apprehended bias. The Court rejected the submission that the existing bench was disqualified by apprehended bias. Applying the test from Johnson v Johnson (2000) 201 CLR 488, the question is whether a fair-minded lay observer might reasonably apprehend that the judges might not bring an impartial and unprejudiced mind to the matter. The Court drew on well-established authority that judges are trained, by experience and professional obligation, to put aside prejudicial material that proves inadmissible or irrelevant. A prior misunderstanding of the evidence does not, of itself, establish a reasonable apprehension of bias.

Jurisdiction to reopen. The Court accepted that it possessed jurisdiction to reopen the matter after the order had been perfected. The implied power of courts to do justice to parties, including the power to review perfected orders in appropriate circumstances, provided the necessary foundation. The Court noted that this power is exercised with considerable caution and only where the interests of justice clearly demand it.

Materiality of the errors. Having reconsidered its reasoning with the erroneous factual references removed, McClellan CJ at CL was satisfied that none of those matters had played any material part in the analysis of the grounds of appeal. The errors appeared primarily in the summary of the Crown case rather than in the substantive reasoning on any ground. The remaining evidence, including the respondent's visit to the relevant residence, evidence relating to a vehicle, dot point notes, and a telephone call, was found to be compelling and sufficient to support the original conclusion. The order dismissing the appeal was accordingly confirmed.

Orders Made

  • The order of the Court dismissing the appeal is confirmed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that it retains jurisdiction to reopen a matter and review a perfected order where the interests of justice require it, although this power is exercised with caution.
  • Apprehended bias is not established merely because judges previously encountered and relied upon erroneous or irrelevant factual material. The test remains whether a fair-minded lay observer might reasonably apprehend a lack of impartiality, assessed against the assumption that judges are trained to put aside prejudicial or inadmissible material.
  • No disqualification arose on these facts: the Court was constituted by the same bench for the reopening application, and the respondent's submission to the contrary was rejected.
  • Where factual errors in a judgment appear in the summary of the evidence rather than in the reasoning directed at the grounds of appeal, and where those errors are shown on reconsideration not to have affected the outcome, the original order may be confirmed without disturbance.
  • This decision was subsequently considered by the High Court, which granted special leave on limited grounds (7 March 2008) and allowed the appeal: [2008] HCA 34. The CCA's conclusions on the reopening issue should therefore be read in that broader appellate context.

Legislation and Cases Referenced

Legislation
- Court of Criminal Appeal Act (NSW) 1912
- Judiciary Act 1903 (Cth)

Cases
- Johnson v Johnson (2000) 201 CLR 488
- Re JRL; ex parte CJL (1986) 161 CLR 342
- State of Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25
- DJL v Central Authority (2000) 201 CLR 226
- Antoun v The Queen (2006) 80 ALJR 497
- Postiglione v The Queen (1997) 189 CLR 295
- Smith v NSW Bar Association (1992) 176 CLR 256
- Grierson v The King (1938) 60 CLR 431
- Jones v The Queen (1989) 166 CLR 409
- Pantorno v The Queen (1989) 166 CLR 466
- R v Reardon (2004) 146 A Crim R 475
- R v Kearns [2003] NSWCCA 367
- R v Giri (No 2) [2001] NSWCCA 234
- AN (No 2) v The Queen (2006) 163 A Crim R 133
- Roy Carrion v R (2002) 128 A Crim R 29
- Pettigrew v R (1996) 89 A Crim R 1
- R v McNamara (No 2) [1997] 1 VR 257
- Yuill v Spedley Securities Ltd (in liquidation) NSWCCA, unreported, 8 May 1992
- NSW Bar Association v Smith, unreported, 4 July 1991