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Court of Criminal Appeal 31 July 2009

BURRELL v REGINA

[2009] NSWCCA 193

Homicide
CRIMINAL LAW MURDER CONVICTION APPEAL CIRCUMSTANTIAL CASE WHETHER TRIAL MISCARRIED BECAUSE OF PRE APPEAL DISMISSED.

Citation: Burrell v Regina [2009] NSWCCA 193
Court: New South Wales Court of Criminal Appeal
Date: 31 July 2009
Judge(s): Giles JA; Howie J; Buddin J

Background

The appellant was convicted of the murder of Dorothy Ellen Davis, a 74-year-old widow and neighbour, on or about 30 May 1995. The Crown alleged that the appellant killed Mrs Davis after she sought repayment of a $100,000 loan he had drawn from her in 1994 and could not repay. The case against him was entirely circumstantial: Mrs Davis's body was never found.

The appellant and his then wife lived a short distance from Mrs Davis in the same suburban block at Lurline Bay. Mrs Davis had been a long-standing family friend, and had provided the $100,000 after an initial cheque for $500,000 was dishonoured. The appellant withdrew $90,000 in cash shortly after the funds were deposited.

The trial ran before Kirby J and a jury in the Supreme Court from August to September 2007. The jury returned a verdict of guilty, and the appellant was sentenced to 28 years' imprisonment with a non-parole period of 21 years. He appealed against conviction only.

  • Whether the verdict was unreasonable or could not be supported having regard to the evidence, given the case was entirely circumstantial
  • Whether the trial miscarried because of extensive pre-trial publicity that had brought the appellant adverse public notoriety
  • Whether a note sent by the jury during deliberations, enquiring about evidence of motivation and character, indicated that the jury had been improperly influenced by that publicity

Decision

On the unreasonable verdict ground, the Court of Criminal Appeal held that it was open to the jury, applying common sense and their common experience of human affairs, to be satisfied of the appellant's guilt beyond reasonable doubt. In circumstantial cases, the court must consider the combination and totality of the circumstances rather than examining individual strands of evidence in isolation. Giles JA conducted a detailed review of the circumstantial evidence and concluded that the jury's verdict was supportable.

On the pre-trial publicity ground, the Court noted that while there had been considerable media publicity, its intensity lay well in the past by the time the trial commenced. The trial judge had given careful and firm directions that the jury must put aside any media coverage and decide the case solely on the evidence before them. The Court held that jurors are not to be regarded as "exceptionally fragile and prone to prejudice," and it was not lightly to be assumed that the jury disregarded those directions.

On the jury's note, the Court found that the note, which enquired about evidence of motivation and character, did not indicate that the jury was drawing on media publicity rather than the evidence at trial. The terms of the note were consistent with the jury reasoning from the evidence itself. The Court rejected the submission that the trial judge should have given additional directions either referring explicitly to the appellant's notoriety or directing the jury that character was not a relevant consideration. Defence counsel at trial had made a deliberate forensic decision not to seek such directions, to avoid drawing further attention to the character issue, and the Court declined to grant leave on that basis.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In circumstantial murder cases, an appellate court assessing whether a verdict is unreasonable must consider the combination and totality of the circumstances, not each piece of evidence in isolation.
  • A jury's common experience of human affairs and common sense are legitimate tools in evaluating circumstantial evidence, and a verdict reached by that process is capable of being upheld on appeal.
  • Pre-trial publicity, even if extensive, does not automatically produce a miscarriage of justice where its intensity has passed, careful judicial directions have been given, and there is no concrete indication that the jury failed to follow those directions.
  • A jury note asking about evidence of motivation and character does not, without more, demonstrate that the jury was influenced by external publicity rather than the evidence properly before them.
  • Where defence counsel made a deliberate forensic decision at trial not to seek a particular direction, the Court of Criminal Appeal declined to grant leave to raise that issue on appeal as a new ground.

Legislation and Cases Referenced

Cases cited: