Citation: Bruce Allan Burrell v Regina [2008] NSWCCA 276
Court: Court of Criminal Appeal, New South Wales
Date: 21 November 2008
Judges: Allsop P, Johnson J, Price J
Background
The appellant had been tried twice for the kidnap and murder of one victim, with the second trial resulting in conviction. A separate trial on a charge of murdering another victim remained a future possibility, pending any appeal. Over several years, various judges had made a series of non-publication orders suppressing evidence, submissions, and reasons for judgment from interlocutory hearings, primarily to protect the integrity of jury trials.
After the second jury trial concluded, media interests (led by News Limited) applied to have the suppression orders vacated. The primary judge, Barr J, granted that application on 16 November 2007, lifting the suppression and making the material available to the public and press. Barr J stayed the effect of his orders pending any appeal.
The appellant sought leave to appeal against Barr J's decision, arguing the orders should remain in place to protect any possible future jury trial on the remaining charge. During the appeal hearing, the appellant also made a further oral application seeking a non-publication order over certain evidence referred to in two earlier Court of Criminal Appeal judgments that had already been published in reported series.
Legal Issues
- Whether Barr J erred in approaching the application on the basis that the continuation of non-publication orders required fresh justification once the completed jury trials were no longer at risk.
- Whether the burden lay on News Limited to justify vacating the orders, or on the appellant to justify their continuation.
- Whether the possibility of a future retrial was a sufficient basis to maintain suppression orders over material already in the public domain.
- Whether jury directions were an adequate alternative safeguard if a retrial eventuated.
- Whether a further non-publication order should be made over evidence discussed in the two existing Court of Criminal Appeal judgments already published in reported series.
Decision
The Court of Criminal Appeal dismissed both the appeal and the fresh application made during the hearing. Allsop P, with Johnson J and Price J agreeing, found no error in Barr J's approach.
The Court held that non-publication orders restricting the free flow of information about criminal proceedings always require justification as necessary and appropriate. Once the jury trials they were designed to protect had concluded, the burden shifted: the continuation of such orders had to be separately justified, not simply assumed. This position was supported by the earlier decisions in John Fairfax Publications Pty Limited v Attorney-General (NSW) and John Fairfax Publications Pty Limited v District Court of New South Wales.
Allsop P rejected the appellant's submission that suppression should persist for as long as any prospect of retrial existed. The possibility of a further trial was described as speculative, since no attempt had been made before either court to demonstrate any particular strength in the pending appeal or any error at trial. Where a retrial did eventually occur, jury directions were an adequate means of addressing any prejudice from prior publicity.
On the fresh application, the Court refused to make a non-publication order over the evidence referred to in the two published Court of Criminal Appeal judgments. Those judgments had already been in reported series accessible to the public for well over a year before the application was made. The Court found no sufficient basis to suppress material that was already lawfully in the public domain.
Orders Made
- Leave to appeal granted from orders made by Barr J on 16 November 2007.
- Application made on 10 September 2008 for orders in relation to the reasons in R v Burrell [2007] NSWCCA 65 and [2007] NSWCCA 79 dismissed.
- Appeal dismissed.
- Each of the non-publication orders identified in paragraphs 6 and 7(iii) of Barr J's reasons varied or vacated so as to cease to forbid publication of the material referred to in them.
Key Takeaways
- Non-publication orders restricting criminal court proceedings are serious interferences with the public's access to information about the exercise of judicial power, and their continuation must always be justified as necessary and appropriate.
- Once the jury trials that prompted the original suppression orders were completed, the orders did not continue automatically. The party seeking their maintenance bore the burden of demonstrating ongoing necessity.
- The prospect of a future retrial will not, without more, sustain existing suppression orders where that retrial is speculative and no particular basis for one has been established. Appropriate jury directions at any future trial were identified as a sufficient alternative safeguard.
- No error was established in Barr J's assessment that little or insufficient prejudice would result from lifting the orders, given the anticipated delay before any possible retrial and the capacity of juries to follow directions regarding extrinsic material.
- Refusing the fresh application, the Court of Criminal Appeal confirmed that material already lawfully published in reported series and accessible to the public for over a year provided no foundation for a new non-publication order.
Legislation and Cases Referenced
Cases:
- Burrell v R [2008] HCA 34; 248 ALR 428
- John Fairfax Publications Pty Limited v Attorney-General (NSW) [2000] NSWCA 198; 181 ALR 694
- John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; 61 NSWLR 344
- R v Burrell [2007] NSWCCA 79; 175 A Crim R 21
- R v Burrell [2007] NSWCCA 65
- R v Kanaan [2006] NSWCCA 109
Legislation: No specific legislation cited in the provided text (the catchwords refer to "complex trials legislation" but no Act is identified by name in the material provided).