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Court of Criminal Appeal 17 June 2009

Burrell v Regina

[2009] NSWCCA 163

Also reported as (2009) 196 A Crim R 199
Homicide
CRIMINAL LAW APPEAL DIRECTIONS TO JURY (1990) 170 CLR 573 CRIMINAL LAW APPEAL

Citation: Burrell v Regina [2009] NSWCCA 163
Court: New South Wales Court of Criminal Appeal
Date: 17 June 2009
Judge(s): Beazley JA, Grove J, Howie J

Background

The appellant was convicted by jury in June 2006 of the kidnapping and murder of Kerry Whelan, who was last seen at a Parramatta hotel carpark in May 1997. Her body was never found. This was his second trial, the first jury having been unable to reach a unanimous verdict.

Following conviction, Barr J sentenced the appellant to life imprisonment for murder and 16 years imprisonment (with a 12-year non-parole period) for kidnapping. The appellant's first appeal to the Court of Criminal Appeal was dismissed in March 2007, but the Court purported to reopen that appeal to address factual errors in its own judgment. The High Court quashed those reopened orders and remitted the matter to the Court of Criminal Appeal for rehearing.

The present proceeding was that court-ordered rehearing. A preliminary question arose as to which grounds of appeal fell within the scope of the remitter, given that the High Court had refused special leave on some grounds while granting it on others.

  • Whether the trial judge erred in refusing to give a Shepherd v R direction requiring the jury to be satisfied beyond reasonable doubt of three specified "indispensable intermediate facts" before convicting
  • Whether the trial judge erred in directing the jury that defence counsel had misstated the law in his closing address regarding those intermediate facts
  • Whether the verdicts were unsafe and unsatisfactory, being unreasonable and unsupported by the evidence
  • Whether the trial judge erred in permitting further cross-examination of certain witnesses under s 38 of the Evidence Act 1995 after the opposing party had already cross-examined them
  • Whether a note from a juror during deliberations revealed an irregularity requiring the jury's discharge, and whether the trial judge erred in giving a Black v R direction rather than discharging the jury or making further inquiries
  • Whether the trial judge erred in imposing a sentence of life imprisonment
  • Whether grounds not taken to the High Court on special leave were nevertheless within the scope of the remitter back to the Court of Criminal Appeal

Decision

On the Shepherd direction issue, the Court held that where the Crown relies on indispensable intermediate facts as part of a circumstantial case but does not confine its entire case to those facts, it is not required to satisfy the jury beyond reasonable doubt of each of those intermediate facts individually. The Crown's obligation is to satisfy the jury beyond reasonable doubt of each element of the offence charged. Accordingly, no Shepherd direction was required on the facts of this case, and the trial judge had not erred in refusing to give one or in correcting the defence's address to the jury on this point.

The Court rejected the contention that the verdicts were unsafe or unsatisfactory. Applying established principles for appellate review of jury verdicts in circumstantial cases, the Court found that the jury, acting on the evidence, was entitled to be satisfied of guilt beyond reasonable doubt.

On the juror's note, the Court found no error in the trial judge's response. The direction given in accordance with Black v R was appropriate, and neither the content of the note nor the circumstances of deliberations required the jury to be discharged or triggered an obligation to make further inquiries. The s 38 cross-examination ground was also rejected, the Court finding no error in how the trial judge exercised discretion to permit further examination of the relevant witnesses.

On sentence, the Court concluded that a life sentence for this planned, premeditated murder for financial gain involved no error of principle. The absence of a body and the nature of the offending were matters Barr J had properly weighed. No error under the principles in House v R was demonstrated, and the sentence was not so unreasonable as to imply any underlying error in the sentencing approach.

Orders Made

• The order of the New South Wales Court of Criminal Appeal made on 16 March 2007 be set aside.
• The appellant's appeal against conviction and his application for leave to appeal against sentence be remitted to the New South Wales Court of Criminal Appeal for rehearing.

The High Court's orders remitting the matter (extracted in the orders section) were:
- The Court of Criminal Appeal's order of 16 March 2007 be set aside
- The appeal against conviction and the application for leave to appeal against sentence be remitted to the Court of Criminal Appeal for rehearing

On the rehearing, the Court of Criminal Appeal ordered:
- Leave to appeal granted
- The appeal dismissed

Key Takeaways

  • A Shepherd v R direction, requiring the jury to be satisfied beyond reasonable doubt of indispensable intermediate facts, is only necessary where the Crown's entire circumstantial case depends on those specific facts; where the Crown puts its case more broadly, no such direction is required.
  • Where the High Court remits a matter to the Court of Criminal Appeal for rehearing, the scope of that remitter may extend to grounds on which special leave was refused for lack of prospects, not merely the grounds on which leave was granted, depending on the terms of the High Court's orders and directions.
  • Life imprisonment for murder was upheld where the offence was premeditated, planned, and committed for financial gain, even in the absence of the victim's body and without specific findings that the offender posed an ongoing danger to society or had no prospect of rehabilitation.
  • The Court of Criminal Appeal confirmed that a trial judge's correction of a defence counsel's misstatement of law during closing address does not constitute appealable error where the correction accurately states the applicable legal principles.
  • No obligation arose to discharge the jury or make further inquiries simply because a juror sent a note to the trial judge during deliberations, provided the judge's responsive direction was appropriate in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999, s 61(1)
- Criminal Appeal Act 1912, s 6(1)
- Evidence Act 1995, ss 38, 135, 137, 192
- High Court Rules 2004 (Cth), reg 3.01

Key Cases:
- Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
- Black v R [1993] HCA 71; (1993) 179 CLR 44
- Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428
- Burrell v R [2007] NSWCCA 65
- Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
- House v R [1936] HCA 40; (1936) 55 CLR 499
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- Minniti v R [2006] NSWCCA 30; 159 A Crim R 394
- Plomp v R [1963] HCA 44; (1963) 110 CLR 234
- R v Hillier [2007] HCA 13; (2007) 228 CLR 618
- R v Keenan [2009] HCA 1; (2009) 83 ALJR 243
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Velevski v R [2002] HCA 4; (2002) 187 ALR 233
- Davidson v R [2009] NSWCCA 150