Inside the mind of Bruce Burrell

By Angela Kamper - The Daily Telegraph

September 18, 2007

DALLAS Bromley avoids all eye contact with her ex-husband Bruce Burrell. She is in the witness box of the Supreme Court to give evidence against him over the murder of her old friend Dorothy Davis.

With her stare fixed on Crown Prosecutor Mark Tedeschi QC, Bromley - a tall, slim artist with copper coloured hair and large square-framed glasses - refers to her former husband, the criminal in the dock, only by his full name.

Then she recalls some of the darkest moments of her life.

Dallas, Burrell's second wife, was perhaps the first woman he would manipulate, use and betray for money. She was lucky not to end up dead.

One of his victims, Ms Davis, an elderly widow affectionately known as "Dot", was never seen again after leaving her Eastern Suburbs home on May 30, 1995.

Kerry Whelan, a mother of three and wife of wealthy businessman Bernie Whelan, vanished from the car park of Parramatta's Parkroyal on the morning of May 6, 1997.

Both disappearances were at the hands of Bruce Allan Burrell. Neither woman has been found.

As in the Whelan case, there was no DNA evidence linking Burrell to the crime and several years had passed since Ms Davis went missing.

But each piece of circumstantial evidence, especially his obsession with wealthy women, brought Burrell undone.

In their 10 years of marriage Burrell came to rely on Dallas for money.

"He would claim that there was freelance jobs that he was doing and say that's how he was making his money," Dallas told the court.

In 1994 she was diagnosed with cancer. Dallas lost her hair from chemotherapy but continued to work to keep her mind off things.

Things were not well with her marriage - they were sleeping in separate rooms in their Lurline Bay apartment. In June 1994, Burrell negotiated to buy his neighbour's home for $600,000. He then hit Ms Davis up for $500,000 but the kind woman, who was more concerned about Dallas's welfare, offered him $100,000 instead.

Dot had a soft spot for Dallas. The 74-year-old had watched her grow up in Lurline Bay - they had been neighbours for decades.

Dallas was amazed and upset with her husband when he told her why he was safekeeping $100,000 of Dot's money in his account and pocketing $10,000 for his efforts.

"I think he said he had done it to help her," Dallas recalled.

Burrell withdrew $90,000 from the couple's account but the money never made it back to Dot.

Peter Grace, a man who employed Burrell on a commission basis, recalled a conversation with him soon after Ms Davis went missing.

"He said she was an annoyance . . . he was annoyed at her temerity . . . he told me that she had gone as far as saying she would take legal action to get that money off him."

Dallas's marriage to Bruce ended in 1996. He moved to Hillydale and his money supply was running out.

It was then that he reignited his contact with his old employer's wife Kerry Whelan.

The Bungonia property - full of ship yards, fences, paddocks, dams and mining shafts - has been searched numerous times by police.

Officers have gone down each shaft looking for remains.

The absence of a body tempers any relief at yesterday's guilty verdict.

"No verdict can ever give us the peace that we so desperately crave," Dorothy's daughter Maree Dawes stressed outside court.

"It will only be when we bring her home and bury her with the dignity she deserves."

Bernie Whelan, who believes the woman were disposed of together, had the same sentiment.

"The thing that we would like to see most if for him to tell us where they are," he said.

Burrell guilty of second murder

Smh.com.au

September 17, 2007

A Sydney court has lifted reporting restrictions on a previous conviction involving Bruce Burrell, who was today found guilty of murdering Sydney widow Dorothy Davis.

It can now be reported that Burrell is serving life for the murder of another missing Sydney woman, Kerry Whelan.

The NSW Supreme Court jury in the Dorothy Davis case was not told about Mrs Whelan, but following today's verdict Justice David Kirby lifted reporting restrictions on Burrell's previous murder conviction.

Last year, another NSW Supreme court jury found Burrell guilty of the kidnap and murder of Mrs Whelan, 39, who was last seen at a hotel car park in Sydney's west in May 1997.

Mrs Davis, 74, was last seen in May 1995 after leaving her Lurline Bay home, in Sydney's eastern suburbs.

Like Mrs Davis, the body of Mrs Whelan has never been found.

Mark Tedeschi, QC, who was Crown prosecutor at both trials, alleged Burrell disposed of both his victims at his Hillydale property at Bungonia, in the NSW Southern Highlands.

Burrell - who sat mostly impassively during the trial - gasped and looked skywards when today's verdict was announced after the jury had deliberated for eight days.

Ms Davis, then 74, had left her home in Lurline Bay in Sydney's eastern suburbs on May 30, 1995, saying she was going to visit a sick friend.

Mr Tedeschi suggested that the friend had been Burrell's then wife, Dallas.

The Crown case was that Burrell had waited for Ms Davis, waylaid her, killed her and disposed of her body.

During the trial, evidence showed that Burrell had borrowed $100,000 from Ms Davis in 1994 but had not repaid it.

Other evidence suggested she had put pressure on him to repay the debt.

Justice David Kirby, who presided over the trial, remanded Burrell in custody for sentencing on a day to be fixed.

Whelan murder: Burrell gets life

Geesche Jacobsen

August 9, 2006

Convicted murderer Bruce Allan Burrell was sentenced this morning to life imprisonment for the kidnap and murder of Sydney mother Kerry Whelan.

Mrs Whelan was last seen after meeting Burrell, her husband's friend and employee, at a Parramatta hotel in May 1997. Her body has never been found.

The next day Mrs Whelan's husband, Bernie, received a note demanding $US1 million for her safe return.

NSW Supreme Court judge Graham Barr also sentenced Burrell to 16 years for the kidnapping, to be served concurrently.

He said he was not surprised that Burrell's defence had made no final submissions.

"There was no remorse," he said. "In any case, the objective seriousness of the offender's criminality is so great that subjective matters can scarcely be given any weight."

Justice Barr said Burrell had been motivated by "the cold desire to enrich himself'".

He expressed his sympathy for the Whelan family and complimented police on their work.

Mr Whelan said the family were satisfied with the sentence.

"We're not happy. We will never be happy, because we lost Kerry. But at least our faith in the criminal justice system has been justified.

"We've had that faith since she was taken ... The police officers did a remarkable job."

But his voice cracked as he reminded the public of the reward for finding his wife's body.

"We hope one day that my children and I will be able to lay her to rest," he said.

After years of legal argument and two trials - the first ending with a hung jury after nearly two weeks of deliberations - Burrell was found guilty in June.

Following the first trial, NSW introduced legislation to allow majority verdicts in NSW.

Burrell was originally charged with the crime in 1999.

Charges were dropped, then reinstated three years later after an inquest into Mrs Whelan's death.

Burrell's ransom demand

Smh.com.au

August 9, 2006

Transcript (uncorrected) of the ransom note sent to the family of Kerry Whelan, who was kidnapped on May 6, 1997.

"There will be no second chances. Follow all instructions or your wife will die.

By the time you recieve this letter she will be safely in our keeping.

To ensure her safe return you must at no time bring in the police the press any authorities or outside assistance. We will know if you do so.

The consequences of breaching tis rule will be dire for your wife.

You are not our first Australian target there have been others. You have not heard of this in the past because they have implicitly followed all instructions and been reunited with there loved ones.

Do not underestimate our capabilities.

We will know if you breach any conditions at any time and you and your family will not see her again. This is our garantee.

The ransom for her return is one million US dollars. The rate of exchange means you will pay one million two hundred fifty thousand Australian dollars to be paid in one hundred dollar Australian notes. Ensure only the new plastic notes are used. No paper currency. No consecutively numbered notes. The money is to be delivered in a heavy duty green plastic garbage bag.

The money is not to be photo copied. No remote transmitting devices. No radio active dusts. No dyes. No means of tracing the money is to be used.

We are able to scan and test for all such devices and any other method you may use. Do not be tempted for if anything is used to trace the money it will not be collected and your wife will die. No further contact will be made.

You have seven days. When the money is ready you are to put an advertisement in the public notice section of the Sydney Daily Telegraph newspaper saying: Anyone who witnessed a white Volkswagon Beetle beside the Eastern Gates of the Sydney Olympic Site at 10:30pm on Tuesday 8.4.97 please call -------------- then put your home telephone number at the end of the advertisement.

After the advertisement has been in the newspaper we will be in contact within three days at your home to tell you the next step. Be ready to leave with the money at any time.

The money is to be delivered by you and nobody else. Do not substitute yourself for the delivery. You must be alone. Have no wires on yourself or in the car you use. We will know if you try to use them. Do not use the car radio.

Any sign of outside involvement or interference and your wife will die.

We will be aware of everything you do. Take cae this is your only means of ever seeing her alive again."

Burrell guilty of murder

Smh.com.au

June 6, 2006

A jury has found Bruce Burrell guilty of kidnapping and murdering Sydney mother Kerry Whelan.

Mrs Whelan was 39 when she disappeared on May 6, 1997. Her body has never been found.

The day after she went missing, her husband Bernie Whelan received a ransom note demanding a $US1 million for her safe return.

The NSW Supreme Court was told Burrell kidnapped the mother-of-three out of financial desperation.

But it was alleged that, because Mrs Whelan knew Burrell, he killed her to prevent her from identifying him.

Burrell, 53, pleaded not guilty to both charges when his trial began in March.

The jury of eight men and four women deliberated for nine days before finding him guilty a short time ago.

Burrell did not react as the jury foreman handed down the guilty verdict.

His barrister, David Dalton, asked Justice Graham Barr to poll the jury members.

When the judge asked for further explanation, Mr Dalton said: "We'd like to check that every juror agrees with the verdict."

Justice Barr asked the foreman whether the verdict was the verdict of all the jurors.

"It is," the foreman replied.

Burrell did not apply for bail and it was formally refused by Justice Barr, who remanded him in custody for a sentencing hearing on June 23.

He shook hands with his barrister and was escorted by sheriff's officers into the cells below the court.

The victim's husband Bernie Whelan said he was "very emotional'' to hear Burrell had today been found guilty.

"It is a bittersweet result, but at least we have got a killer off the streets and that's what we have been trying to do for the last nine years, but it won't bring Kerry back will it,'' Mr Whelan told Southern Cross Broadcasting.

"The first few weeks were the hardest, when I had to try and explain to my children that mum wasn't coming home,'' Mr Whelan said.

"Obviously what we need is to bring her home and lay her to rest. That's what my children want and that's what I want, but we don't know how we're going to achieve that yet - but that's tomorrow's problem.''

He said Burrell had almost destroyed the lives of every member of his family, but "at least there's now some justice''.

Mr Whelan, who was at home with his quadriplegic son when the verdicts were returned, said his character had been assassinated during Burrell's trial, but he had made it through with the help of his family.

Earlier, he told ABC radio he had been "completely fooled'' by Burrell, who was a former employee.

"I took him in not only as an employee, but as a friend. He had weekends away with us, he held our children, I just can't believe we're talking about the same person,'' Mr Whelan said.

He praised the police and prosecutors who brought the case to its conclusion.

NEW SOUTH WALES SUPREME COURT

R v Bruce Allan BURRELL [No 3] [2008] NSWSC 30 (8 February 2008)

DECISION:

Sentenced to imprisonment for 28 years commencing on 17 September 2007 and ending on 16 September 2035, with a non parole period of 21 years. The earliest date upon which eligible for release on parole is 17 September 2028.

JUDGMENT ON SENTENCE

1 KIRBY J: Shortly after 1.00 pm on 30 May 1995, Mrs Dorothy Davis set out on foot from her home at 9 Undine Street, Lurline Bay to visit a friend. She was never seen again.

2 On 1 November 2002, Bruce Allan Burrell was charged with her murder. He pleaded not guilty. On 17 September 2007, after a jury trial, Mr Burrell was convicted of that murder. It remains for me to pass sentence. Before I do so, I should first determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be proved beyond reasonable doubt. Where they favour Mr Burrell, it is enough that they should be established on the balance of probabilities.

Background.

3 Mr Burrell was born on 25 January 1953. Before September 1992 he worked as an advertising executive. In 1985 he married Dallas Bromley. Dallas Bromley and her parents were close friends of Mrs Dorothy Davis. Mrs Davis had known Dallas since she was a child and regarded her with special affection. Mrs Davis' late husband had died in December 1984, leaving her with substantial assets.

4 In 1988 Mr Burrell, Dallas and Dallas' parents purchased a 500 hundred acre farm, known as "Hillydale", at Bungonia. The farm was adjacent to a national park, in a remote area, three hours drive from Sydney. Access to the farm and the national park required travel upon unsealed roads.

5 After their marriage, Mr Burrell and his wife lived in a unit in Marine Parade, Lurline Bay. In November 1993, Mr Burrell left a note for the owner of a house in the same street, 34 Marine Parade, indicating his interest in purchasing that property. The house was on the corner of Wilson Street and Marine Parade, facing the ocean. Wilson Street was the next street to Undine Street, where Mrs Davis lived, a ten minute walk away. The owner of the house invited Mr Burrell and Dallas around for a discussion. At that stage, however, she was not interested in selling.

6 In January 1994, Dallas was diagnosed with cancer. She began treatment including chemotherapy. The treatment continued until August 1994. A few months before the treatment came to an end, Mr Burrell again wrote to the owner of 34 Marine Parade. The owner was then living in England. In July 1994 agreement was reached for the sale of 34 Marine Parade to Mr Burrell and his wife for $600,000.

7 On Friday 8 July 1994, Mrs Davis wrote a cheque for $500,000 in favour of Mr Burrell. The balance in her account at that time was $114,000. The following Monday the bank manager telephoned Mrs Davis and drew her attention to the shortfall. Mrs Davis explained that the cheque was "a short term loan to a friend". She gave instructions to stop the cheque. The bank manager made a diary note of their conversation.

8 On 12 August 1994, Mrs Davis wrote a further cheque in favour of Mr Burrell, this time for $100,000. Mr Burrell deposited that cheque the same day in his account, telling the bank manager that the funds were to be used as a deposit on a property near his home. On 20 August 1994, Mr Burrell, by arrangement, withdrew $90,000 in cash from his account. Again he spoke to the bank manager, suggesting that the money was to be used in connection with the purchase of a house.

9 Mrs Davis spoke to her daughter, Mrs Maree Dawes, about each of these cheques. She related her conversations with Mr Burrell. Mr Burrell had told her that Dallas really wanted the house at 34 Marine Parade. Mrs Davis, generously, was prepared to assist with a loan. The larger cheque, which was later stopped, was written in the context of a suggestion by Mr Burrell that the owners required a larger than usual deposit. Mr Burrell later told Mrs Davis, according to the explanation which she provided her daughter, that a lesser amount would be adequate. It was in that context that the second cheque for $100,000 was written.

10 Mr Burrell said nothing to Dallas concerning these transactions until much later that year. He then gave an entirely different account, which he later repeated to the police. He said that Mrs Davis wished to conceal certain matters from her children. She asked Mr Burrell for his assistance, which he was willing to provide. She would write him a cheque upon the basis that he would repay her in cash shortly after. She ultimately wrote a cheque in his favour for $100,000 and he repaid $90,000 in cash retaining, at her suggestion, $10,000 for his trouble. Plainly, and unsurprising, the jury rejected that account as false. I accept that the money was provided by Mrs Davis to Mr Burrell as a short term loan to assist in the purchase of 34 Marine Parade to benefit Dallas, who had been gravely ill.

11 Meanwhile, in August 1994, contracts were exchanged for the purchase of 34 Marine Parade and a deposit paid. By October the purchase had been completed. However, the $100,000 provided by Mrs Davis to Mr Burrell was not used in that purchase. Instead, a bank loan was raised for the whole of the purchase price.

12 It is clear that the money provided by Mrs Davis to Mr Burrell in July 1994 was spent, or substantially spent, by Mr Burrell in the period before May 1995. He had been unemployed since 1992. He was not in receipt of Social Security benefits. He had no source of income. He was, as he acknowledged in evidence before the coroner, dependant upon his wife, who was employed. Mr Fogarty, an expert accountant, gave evidence at his trial. Mr Fogarty analysed the income and expenditure of the Burrell household before and after July 1994 and demonstrated that, after the loan, Mr Burrell plainly had an unexplained source of cash.

13 Mr Peter Grace, a witness at the trial, gave evidence of a conversation with Mr Burrell after Mrs Davis disappeared on 30 May 1995. He said that Mr Burrell told him that Mrs Davis had loaned him money and had been pressing for its return. Indeed, she had threatened legal action. Mr Burrell, however, was in no position to repay the loan.

14 The evidence of Mr Grace was strongly challenged during the trial by counsel for Mr Burrell. Certainly one may have reservations about certain aspects of Mr Grace's evidence. However, I accept that, in May 1995, Mrs Davis was pressing Mr Burrell for repayment of the loan and that he was unable to repay that loan. The contemporaneous note made by the bank manager in July 1994 in the bank diary corroborated that the advance by Mrs Davis was in the nature of a short term loan to a friend. By the end of May 1995, almost one year had elapsed without repayment. It is unsurprising that Mrs Davis should have been anxious for the return of her money.

The murder.

15 Returning, then, to the events of 30 May 1995, Mrs Davis, as mentioned, set out on foot shortly after 1.00 pm from her home at 9 Undine Street, Lurline Bay to visit a friend. Before she left she had a brief conversation with a builder who was attaching an awning to her home. She told the builder that her friend had had cancer and that she was going to walk because it was not far. Mrs Davis clearly expected it would be a short visit. She had left meat defrosting on the kitchen bench. The jury was instructed that it had to be satisfied beyond reasonable doubt that the friend she identified by description, and whom she expected to see, was Dallas Burrell. Consistent with the verdict, I make that finding.

16 The invitation to 34 Marine Parade on 30 May 1995 did not come from Dallas Burrell. It came from the offender, Bruce Burrell. He knew that Dallas was at work. No-one else lived at the premises. He was at home alone. I infer that, when he issued the invitation, it was his intention to kill Mrs Davis. Mrs Davis suffered from a medical condition which made walking up hills difficult and painful. Indeed, she notoriously avoided walking up hills, choosing instead to drive her car. The walk from Undine Street to 34 Marine Parade was downhill and Marine Parade itself was flat. However, the return journey, whichever way she went, involved walking up a steep hill. I infer that Mrs Davis was induced by Mr Burrell to walk rather than drive on the promise of a lift home. He thereby avoided having to dispose of her car and risk being seen doing so.

17 The means by which, and the place at which, he murdered Mrs Davis are not known. He was a large man, tall and heavy, then aged 42 years. Mrs Davis was a much smaller woman, then aged 74 years. Removing her from the premises in daylight would not have presented a difficulty. There was an internal staircase which gave access from the house directly to the garage.

18 Between 2.30 and 3.00 pm, Mr Burrell left 34 Marine Parade by a four wheel drive vehicle to make the three hour journey to "Hillydale". He would have arrived at 5.30 pm or thereabouts. In late May little daylight would remain after 5.30 pm. He left "Hillydale" at about 7.45 pm that evening, returning to Sydney where he spent the night at 34 Marine Parade. The next morning he again drove to "Hillydale". The time he set out is uncertain. However he completed the three hour return journey to Sydney by about 2.30 pm. I infer that these two trips, involving 12 hours driving within the space of 24 hours, were concerned with the disposal of Mrs Davis' body. The body has never been found.

19 It was said by the Crown and I accept, that Mr Burrell's motive was purely financial. By murdering Mrs Davis he sought to extinguish the debt of $100,000 which he had not disclosed to his wife and which he was in no position to repay. For a time he was successful in that objective. As I have mentioned, he propagated to the family and the police the false story that the $100,000 was not a loan. Neither the family nor the police was then in a position to contradict his account.

20 The Crown submitted that the offence betrayed significant premeditation and planning, which was an aggravating factor. According to the Crown, it was never Mr Burrell's intention to repay the loan. Further, the absence of forensic evidence at either 34 Marine Parade or in his vehicle demonstrated that he had taken considerable care in the execution of his plan.

21 Counsel for Mr Burrell submitted, however, that the intention not to repay the loan and to kill Mrs Davis may have been formed quite late, presumably when Mrs Davis was pressing for payment. The crime, according to counsel, should be characterised as, to some degree, opportunistic, rather than involving lengthy premeditation. Further, it was argued that no adverse inference is available from the absence of forensic evidence at 34 Marine Parade or within Mr Burrell's vehicle. Although Mr Burrell was interviewed by the police in late June 1995, neither the house nor the vehicle was examined until much later.

22 There is force in both arguments put on behalf of Mr Burrell. I cannot be satisfied beyond reasonable doubt that Mr Burrell formed the intention to kill Mrs Davis before she pressed him for the repayment of the loan which, I infer, was in late May 1995. From that moment, however, Mr Burrell gave a great deal of thought to the way in which, by charm and false representation, he would lure Mrs Davis to his home, murder her and then dispose of the body.

The subjective case.

23 Let me turn from the offence to the offender. I should make a number of observations. First, there is plainly no remorse. Mr Burrell knew the victim's family well. They were family friends. He was in a position to appreciate the devastation which Mrs Davis' disappearance and murder would have upon that family. Mr Burrell has never accepted responsibility. He has never sought to alleviate the suffering of the family by disclosing the whereabouts of Mrs Davis' body. Indeed, at the trial and no doubt on instructions, the insinuation was made to Mr Lessel Davis, Mrs Davis' son, that his financial predicament at that time may have had some connection with his mother's disappearance. That insinuation was completely false, as Mr Burrell knew. Of course, Mr Burrell was entitled to defend himself as he saw fit (Siganto v The Queen [1998] HCA 74; 194 CLR 656). But, the course he chose was consistent with a complete absence of remorse and the cold blooded nature of his crime.

24 Secondly, there was some delay in the prosecution. Ordinarily that would be a matter which may, to some degree, ameliorate the sentence. However, an examination of the causes for that delay suggest, according to the Crown, that it should be given little weight. Counsel for Mr Burrell, in his helpful submissions on sentence, acknowledged the force of the Crown's submission, which I accept.

25 Thirdly, Mr Burrell has recently turned 55 years. Assuming for the moment a determinate sentence, that sentence inevitably will be substantial and will extend into Mr Burrell's old age. Prison may, because of age, become more burdensome (Holyoak v R (1995) 82 A Crim R 502). There is, however, no principle that an offender should not be sentenced to a sentence otherwise appropriate which may effectively mean he spends the rest of his life, or much of the rest of his life, in gaol (R v Varner (NSW CCA, 24 March 1992, unreported) at 4; Holyoak v R (supra) at 507). In framing the sentence I am about to impose, I have taken into account what was said by the Court of Criminal Appeal in R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35, pars [190]-[191].

26 The final matter is that Mr Burrell has a criminal record. He has a number of relatively minor criminal convictions which, in the context of this offence, are of little relevance. However, on 9 August 2006, he was sentenced for the kidnapping and murder of Mrs Kerry Whelan. In respect of the murder, his Honour Justice Barr imposed a sentence of life imprisonment. On the charge of kidnapping, Mr Burrell was sentenced to 16 years imprisonment commencing on 23 December 2005 and expiring on 22 December 2221. A non parole period of 12 years was fixed, expiring on 22 December 2017.

27 The murder of Mrs Whelan occurred in May 1997, that is almost two years after the disappearance and murder of Mrs Davis. The Director of Public Prosecutions chose to pursue the Whelan indictment before prosecuting in relation to the murder of Mrs Davis. Are the convictions in respect of the Whelan indictment relevant when sentencing Mr Burrell in respect of a similar offence which occurred at an earlier point in time? The issue was considered in R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159, at paras [50]-[61]. In the context of that case, it was said that when sentencing for the earlier offence, the later convictions cannot be regarded as a matter of aggravation. Rather, they deprive the offender of any leniency to which he might otherwise have been entitled, because he had little or no criminal record at the time of the commission of that offence (para [59]). Here, however, there is the additional question of dangerousness and the protection of the community, where the subsequent convictions are, in my view, relevant.

A life sentence?

28 It was submitted by the Crown that the level of culpability of Mr Burrell was so extreme that the community interest in retribution, punishment, community protection and deterrence, could only be met through the imposition of a life sentence (s 61(1) Crimes (Sentencing Procedure) Act 1999). The offence, according to the Crown, was in the worst class of case. My attention was drawn to the judgment of McClellan CJ at CL in Knight v R [2006] NSWCCA 292; 164 A Crim R 126, at para [23] where his Honour conveniently set out the principles to be applied when determining whether an offence should be characterised as coming within the worst class of case.

29 Here, broadly, the Crown relied upon two arguments in support of its submission. First, the circumstances surrounding Mrs Davis' murder can be likened to those in the case of Mrs Whelan. The criminality in the present crime was, according to the Crown, similar to that involved in the Whelan murder and therefore should attract the same penalty. Both were offences against women Mr Burrell knew to be wealthy. In both cases the motive was purely financial. Both involved extensive pre-planning and premeditation. Each involved Mr Burrell using his knowledge of the victim and his friendship with her to lure that victim to a meeting, where she would be subdued and murdered. Both offences involved the disposal of the victim's body, such that neither body has ever been found.

30 Secondly, the Crown argued that, even were the view taken that there were material differences between the criminality exhibited by Mr Burrell in the Whelan murder and that in the Davis murder, nonetheless a life sentence was justified upon a broader principle. The murder of Mrs Davis involved a level of culpability similar to that involved in a "contract killing". A "contract killing", prima facie, falls within the worst class of case. (R v Crofts (NSW SC, 6 December 1996, unreported); R v Smith [2000] NSWCCA 202 at [164] and [166]; R v King (1998) 99 A Crim R 288 at 291 and 292; R v Lewis [2001] NSWCCA 448; R v Baker (NSW CCA, 20 September 1995, unreported); R v Glasby [2000] NSWCCA 83; (2000) 115 A Crim R 465; Burrell v R [2007] NSWCCA 65; R v Burrell [2007] NSWCCA 79.) The criminality was similar because in both the motive was purely financial. There was no emotional element that might ameliorate the killing. As with a contract killing, it was, according to the Crown, a murder in cold blood, made worse by lengthy premeditation and planning (cf Burrell v R [2007] NSWCCA 65, para [329]).

31 However, without diminishing the awful and brutal nature of this crime, which was certainly committed in cold blood for purely financial gain and with no regard for the sanctity of human life, I believe that a determinate sentence is appropriate, rather than a life sentence. Justice Barr, when sentencing Mr Burrell for the Whelan murder, recited the circumstances surrounding the kidnapping and murder of Mrs Whelan (R v Burrell [2006] NSWSC 581). There was, in respect of Mrs Whelan, a persistence and a level of planning far greater than that involved in the murder of Mrs Davis. Further, whilst I accept that Mr Burrell's criminality can be likened to that of a contract killer, the sentences imposed upon such offenders vary widely depending upon the particular facts. The Crown's submission that the Davis murder involved "lengthy premeditation and planning" overstates the degree of planning, as I have said, although unquestionably there was planning.

32 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence to serve the interest of punishment, including denunciation and general deterrence. Here, the formulation and execution of a plan to murder a harmless and generous elderly woman in cold blood places this crime at the more serious end of the scale.

33 Mrs Davis was a much loved mother, grandmother and friend. I have before me a number of statements from members of her family, some of which were read in open Court. They are a poignant reminder of the anguish which has attended the disappearance of Mrs Davis and the realisation that she had been murdered. That anguish continues to this day. It will, no doubt, continue into the future. The sympathy of this Court is extended to Mrs Maree Dawes and Mr Lessel Davis and other members of the family. I must, of course, deal with this material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at 85.

34 It remains for me to pass sentence. In determining that sentence I have taken account of life expectancy tables. I have given consideration to the appropriate commencement date, whether the date of the verdict or the date of sentence. I believe that, in the circumstances, the date of verdict is the appropriate commencement date. I also believe the parole period will be adequate for the supervision Mr Burrell would require were he released from custody.

35 Bruce Allan Burrell, I sentence you to imprisonment for 28 years commencing on 17 September 2007 and ending on 16 September 2035, with a non parole period of 21 years. Accordingly, the earliest date upon which you will be eligible for release on parole in respect of this offence is 17 September 2028.

Bruce Allan Burrell v R [2007] NSWCCA 65

16 March 2007

McCLELLAN CJ at CL

Burrell was convicted upon two counts, being:

1 On 6 May 1997 at a place unknown in the State of New South Wales he did detain Kerry Patricia Whelan with intent to hold her for advantage to the said Bruce Allen Burrell (contrary to s 90A of the Crimes Act 1900);
2 On or about 6 May 1997 at a place unknown in the State of New South Wales he did murder Kerry Patricia Whelan (contrary to s 18(1)(a) of the Crimes Act 1900.

The trial was conducted before Barr J and a jury commencing on 16 March 2006 and continuing until 6 June 2006. After deliberating for eight days, a juror sent a note to the trial judge which, in general terms, indicated that, at that stage of their deliberations, they could not agree and stated that further deliberations would serve no useful purpose. The juror requested that the jury be discharged. Barr J did not take this course and directed the jury in accordance with Black v The Queen (1993) 179 CLR 44. The jury returned the following day at 2.50 pm with verdicts of guilty upon both counts.

Burrell was sentenced to life imprisonment upon the murder count, the sentence to date from 23 December 2005 and a term of imprisonment of sixteen years, with a non-parole period of twelve years, both to date from 23 December 2005 upon the kidnapping count. Burrell appeals against his conviction and seeks leave to appeal against the severity of the sentences imposed.

The trial at which he was convicted was the second trial of Burrell on these charges. At his first trial the jury was unable to agree and, after deliberating for ten days, was discharged without reaching a verdict. It was agreed at the second trial that the rulings which his Honour made at the first trial would be applied at the second trial.

THE CROWN CASE

Mrs Whelan disappears

The Crown alleged that Mrs Whelan was kidnapped on 6 May 1997 and killed shortly thereafter. Her body has never been found. Burrell was arrested and charged with the kidnapping and murder on 1 April 1999. The Crown case against Burrell was entirely circumstantial. I have set out below a summary of the relevant evidence.

Mrs Whelan was married to Mr Bernard Whelan, a senior executive of a company known as Crown Equipment, which is a large multi-national company based in the United States of America. It manufactures and sells fork lift vehicles. Its Australian premises were based at Smithfield in Western Sydney. The Whelans lived on a large property at Kurrajong and were financially secure. The evidence of a number of persons at the trial was that the Whelans were a devoted couple and were equally devoted to their three children.

According to the prosecution Mrs Whelan was last seen at the Parkroyal Hotel in Phillip Street Parramatta at about 9.38 am on Tuesday, 6 May 1997. On that day her image was captured on security video footage which was tendered at the trial. That footage also contains images of a Pajero 4WD motor vehicle outside the hotel with similar features to one driven by Burrell. It was the Crown case that Burrell abducted Mrs Whelan and probably did so after she had entered his vehicle outside the hotel on that morning.

Burrell was born and raised in the Goulburn area. He worked as an advertising salesman and met his second wife, Dallas (Bromley) in an advertising company in Sydney where they had both worked. They were married in 1985 and soon after moved into a unit in Marine Parade, Lurline Bay, a seaside suburb in the eastern suburbs of Sydney. In 1998 they purchased a rural property called “Hillydale” at Bungonia near Marulan in partnership with Dallas’ parents, Les and Shirley Bromley. Both Burrell and Dallas worked for a company called “the Advertising Works.” One of the accounts that Burrell had responsibility for was Crown Equipment. In this capacity Burrell came into contact with Mr Whelan and they became friends. They shared an interest in farming and sporting shooting. They went away together on shooting trips. Burrell also met Mr Whelan’s family including his wife. The Whelans attended Burrell and Dallas’ wedding in 1985.

In 1987 Mr Whelan offered Burrell a job at Crown Equipment which Burrell accepted, becoming the advertising manager. During his employment Burrell apparently went to the Whelans’ Kurrajong property on occasions including a tennis day for Crown employees in 1989. Following the economic downturn in December 1990 Burrell was made redundant. Mr Whelan was required to bring him that news. After that time there was only sporadic contact between the two men. The last contact between them prior to 1997 was in about 1993.

After leaving Crown Equipment Burrell drifted from position to position. He did not stay long in any job and was largely living off the income of his wife which she gained as a graphic artist. They lived in the unit in Lurline Bay. During this time the relationship between Burrell and his wife deteriorated. In early 1994 Dallas was struck with a particularly serious form of cancer and underwent an extended period of chemotherapy, although she managed to keep working. In 1994 Burrell acquired a green, two door, 4WD Pajero. He also acquired a Jaguar motor car. In 1995 Dallas opened her own advertising business, Burrell Advertising and Design which prospered. The Crown alleged that Burrell became resentful of her success and began to spend more and more of his time at Hillydale on his own.

In May 1996 Dallas decided to separate from Burrell. In December 1996 they reached a financial settlement which necessitated each of them borrowing $125,000 in order to buy out Dallas’ parents’ interest in Hillydale. Burrell ended up owning Hillydale, which became his home, but he had difficulty coping with the mortgage payments. The Crown alleged that by early 1997 Burrell’s financial position had become extremely precarious. For the period July 1996 to May 1997 his income was essentially dependent on some occasional sales of live stock, a motor vehicle and a tractor together with “loans” from his father. Incoming funds from this period totalled about $26,000 while outgoings totalled almost $42,000. When interviewed by the police on 21 May 1997 Burrell indicated that as at April 1997 he had not effectively worked for a wage for a number of years and that he had had to borrow money from his father to exist for the previous six months. At 1 April 1997 his bank balance was $941.97 which was insufficient to meet the current month’s loan repayment or any other of his regular expenses.

The Crown alleged that in January or February 1997 Burrell asked another friend and former work acquaintance, Peter Sean Buckley, who was then a director of a motor vehicle parts company, Ultratune, if he could give Burrell a letter saying that Burrell worked at Ultratune so that he could present it to a bank to obtain a loan. Burrell allegedly said to him:

“you have got to help me out, I need to refinance, I need some money, I promise you I’ll pay the money back … Can you help me refinance my house? … Will you give me a fictitious letter of employment that shows that I work with your company for $50,000 or $60,000 a year so I can take that to the bank and get a loan.”

Mr Buckley refused to provide such a letter, saying that he was not going to be involved in that sort of thing. Burrell sought to obtain money from Ultratune in return for some assistance that he could give in some litigation in Melbourne. Subsequently Burrell was on the phone to Mr Buckley regularly asking him for money. Mr Buckley gave evidence that Burrell was “very, very desperate’ and pestered him repeatedly. At one stage, trying to put him off, Mr Buckley said to Burrell that he would try to help out, depending on his cash flow. Burrell apparently replied: “Look you, you know, you better fucking get the money … make it fucking happen.” Mr Buckley became apprehensive after this exchange and went to lengths to avoid Burrell. As it happens he did not provide him with any financial help.

The Crown alleged that this exchange with Mr Buckley reflected the desperate state of Burrell’s financial position in the first few months of 1997. The Crown emphasised that Burrell not only made demands upon his friend but sought to involve him in a significant fraud of a bank in order to enable him to obtain money. He was unemployed and had not received any substantial income for a number of years. His ability to rely upon his wife for money had ended with their marriage.

Notwithstanding Burrell’s impecunious position there was evidence of his planning significant investments, in particular in Tasmania. He allegedly proposed to a female friend, Cathie Tulloh, that she might move with him to Tasmania where he said he had been looking for a property to buy. The evidence disclosed that Burrell had made enquiries about purchasing a property in Tasmania from Benjamin Wagner, project manager of Tasmania Development and Resources, where he proposed to set up a winery. He was told the minimum cost would be about $600,000 to $750,000. He also had ideas of spending money on the cottage at Hillydale. When the property was searched in May 1997 the police found a note written by Burrell showing planned improvements totalling $62,000. The Crown alleged that although Burrell’s true financial situation precluded either the setting up of a winery or the improvements to his property, his plans were consistent with an expectation of a sudden and significant improvement in his financial situation.

Burrell phones Mr Whelan

Burrell rang Mr Whelan on 7 April 1997. He had not spoken to him for at least four years. The circumstances were that Burrell rang Crown Equipment and asked to speak to Whelan. Whelan was not there and his secretary took a message. That night Whelan rang Burrell from his home at Kurrajong. Whelan said the conversation mystified him. Although Whelan expected to be asked for a favour or assistance that request never came. To Whelan the conversation seemed to be “pointless.” There was just a general conversation about both their families. During the conversation Whelan told Burrell that it was usual for him to go to Adelaide to attend work meetings each Wednesday or every second Wednesday. He also disclosed that he was frequently required to travel to other offices of Crown Equipment both interstate and overseas. The Crown case was that Burrell’s real purpose for the call was to find out Whelan’s movements.

Burrell visits the Whelan home on 16 April 1997

The next occasion on which Whelan was away in Adelaide was on Wednesday 16 April 1997. On that morning Burrell turned up, without having previously indicated that he would do so, at the Whelans’ property at Kurrajong. He had driven there from his father’s home at Balgowlah in Sydney, where he had stayed overnight. He was driving a Jaguar motor car. When he arrived at the front entrance to the property he found the gate locked. There was a coded keypad which had not been there when he had previously visited the property. The gate was situated a considerable distance from the house. Although the evidence confirmed that he had a mobile phone with him in his car, Burrell did not use it to call Mrs Whelan. Instead he drove to North Richmond a distance of approximately 10 to 15 kilometres and called the Whelan home from a public phone. The telephone was answered by Amanda Minton-Taylor, who was the Whelans’ 31 year old nanny / horse trainer. At home on that day was Mrs Whelan and her 11 year old son, James Whelan. Burrell told Minton-Taylor that he was an old friend popping in to say hello. Minton-Taylor could not find Mrs Whelan at that time but she gave Burrell the keypad number with which to open the gate.

The Crown case was that Burrell travelled back to North Richmond to make the telephone call so that he would not leave a trace of his presence at the Whelan farm on his mobile telephone record. Burrell later told the police that he either did not have his mobile phone with him on 16 April 1997 or, if he did, that he may have tried it and there was no signal. Evidence gathered by the police contradicted both of these suggestions. Burrell had an analogue mobile phone. Tests showed that there was a good analogue signal at the front gate of the Whelan property, although it diminished in one location 200 metres from the gate. After visiting the Whelan property and while returning to his father’s home, Burrell used the phone at Ryde to call his father. The Crown’s explanation for Burrell returning to North Richmond has a possible flaw. If, as happened, the telephone was answered by a person other than Mrs Whelan it would not matter a great deal whether the telephone call was made from a mobile phone, which could be traced or from a public telephone. However, it was the Crown case that Burrell had anticipated that Mrs Whelan would be at home alone and that he intended to kidnap her on that day. It was for this reason that he did not wish any record of the telephone call to be available.

After speaking with Minton-Taylor Burrell drove back to the gate which he opened and continued to the house. He was met by Mrs Whelan and was introduced to Minton-Taylor. Minton-Taylor said that Mrs Whelan showed no signs of distress or anxiety. Burrell was overheard by James Whelan to say that he had called by because he “just went to the pistol club at Lithgow.” This statement was false as Burrell had not been to the pistol club and was not on his way to it. Some weeks later Burrell told the police that he had gone to the Kurrajong property that morning to see Mr Whelan to ask him for some freelance work after having unsuccessfully tried to contact him at Crown Equipment. Relevant staff at Crown gave evidence that no one had rung that morning in an endeavour to speak to Mr Whelan.

Mrs Whelan and Burrell had a cup of coffee in the garden whilst Minton-Taylor occupied herself in the kitchen or with work in the stables. Nobody heard what they spoke about but, when Burrell was interviewed by the police some weeks later, he said that he had told Mrs Whelan of his quest for work. He said that she had offered to intervene and speak to Mr Whelan about it, but that he said that he had declined her offer as he wanted to do it directly himself. When he left, Minton-Taylor saw Burrell give Mrs Whelan a kiss on the cheek. She said that after he had gone Mrs Whelan spoke with her and said:

“Can you do me a favour? You never saw him here. Don’t tell anybody. Give me a couple of weeks and I’ll tell you why. I said ‘Okay.’ Kerry said ‘Don’t worry’ and half laughed and said ‘I am not having an affair.’ Her facial expressions looked as if she meant what she said. She said ‘with this body and held her arms out suggesting that her size and appearance was not attractive. Somewhere through the conversation Kerry said “it’s a surprise.”

She also gave evidence that after a couple of minutes, while she was standing beside the kitchen bench, Mrs Whelan said in a soft voice muttering to herself “that bastard, why did he do this to me.” She said that Mrs Whelan “wasn’t directing this to me, she appeared to be saying it to herself.”

When Burrell was interviewed by police in May 1997 he denied making any arrangement to meet Mrs Whelan on an occasion subsequent to his visit to Kurrajong. It was the Crown case that such an arrangement had been made and that they were to meet at 9.30 am at the Parkroyal Hotel in Parramatta on Tuesday, 6 May 1997. One Crown theory was that this arrangement had been made so that Burrell could go with Mrs Whelan to see Mr Whelan at Smithfield to ask for work. It was the Crown case that there was no explanation for Burrell coming to Kurrajong that morning (on 16 April 1997) except to pursue his sinister intentions. Being aware from his earlier phone call to Mr Whelan that he would be in Adelaide that Wednesday, the Crown case was that Burrell expected to be able to kidnap Mrs Whelan on that day.

The events of 6 May 1997

On Tuesday, 6 May 1997 three weeks after Burrell’s visit to Kurrajong, Mrs Whelan was due to meet her husband at about 3.45 pm at his office at Crown Equipment. They were to travel together to Adelaide that afternoon. Mr Whelan left home that morning at about 8.00 am and spent the day at work. Mrs Whelan told her husband that she was going to Parramatta to visit a beautician or skin specialist. In fact her diary for that day contained the bland entry “9.30 am.” The evidence was that Mrs Whelan normally wrote in her diary the time and purpose of any engagement. Police enquiries failed to reveal any beautician or skin specialist in Parramatta with whom Mrs Whelan had an appointment that day.

Mrs Whelan left home and drove to the Minton-Taylor home at Glossodia arriving at about 8.20 am. She spoke to Minton-Taylor and her mother, Marjorie (who was a good friend of the Whelans and who, together with her husband, was intending to join the Whelans on a holiday they had planned in Europe later that year). Mrs Whelan apparently mentioned that she had an appointment at Parramatta at 9.30 am and she was then going to go shopping. Mrs Whelan left the Minton-Taylor home at about 8.45 am. On the way to Parramatta she spoke briefly to Mr Whelan on the telephone from her car. The evidence indicated that on that morning she was cheerful and showed no anxiety or preoccupation.

At 9.35 am Mrs Whelan was observed on the security camera to drive into the underground car park of the Parkroyal Hotel in Phillip Street, Parramatta. She often used this car park when she went to Parramatta. She had previously told her husband that she was going to park there on that day. The hotel and its car park have a security system comprising a number of cameras with a video recorder. The system recorded a series of still black and white images from up to 8 cameras located at various sites around the premises. Each shot lasted only a second or two so that there was a break of a number of seconds between successive shots from the same camera. Mrs Whelan’s car was filmed entering the car park via the ramp from Phillip Street. She was filmed walking out of the car park along the right hand or western side of the same ramp into Phillip Street. The last shots of her at 9.38:03 and 9.38:08 showed her exiting the ramp. She did not deviate to her left and she either crossed Phillip Street or turned west.

Events at the Parkroyal Hotel

When she left the car park up the ramp, Mrs Whelan walked in the right hand lane and adjacent to the right kerb. Her image disappeared into the light while she was still on the right hand side of the car park entry. The defence case was that she was later observed in a position which would have meant that she had walked to the left. However, that evidence is entirely inconsistent with her movements as shown in the video recording and in my view can be put aside. If she did not turn right having left the car park entry the only other rational direction for her progress was straight across Phillip Street.

The Crown case was that a Pajero 4WD like the one in Burrell’s possession, was seen in camera 7 apparently moving away from the kerb on Phillip Street outside the Parkroyal Hotel heading east across the front of the hotel car park ramp. It was contended that this was the means by which Mrs Whelan left the vicinity of the hotel after she had met Burrell outside. The Pajero vehicle was seen in camera 7 at 9.38.45/46.

Earlier that morning, at 9.01:24 am, a similar Pajero 4WD vehicle was also seen passing outside the Parkroyal Hotel. However, it was not possible to observe whether it stopped or merely moved past the hotel. It was the Crown case that because this vehicle was seen in camera 2 but not in camera 7, which would have been the sequence if the vehicle had continued to move, the vehicle observed at 9.01:24 am had parked outside the hotel. The Crown case was that this was Burrell’s vehicle and that he waited at the kerb until Mrs Whelan arrived.

There was no observation of Mrs Whelan entering any vehicle. However, the Crown relied on the absence of any image of Mrs Whelan being captured on the hotel’s CCTV footage which covered pathways she could have used to move away from the hotel. The Crown also relied on the evidence of Mr Poras Shar who had left the car park using the ramp at the same time and in the same direction as Mrs Whelan. His evidence was that Mrs Whelan had turned right at the top of the ramp which meant that she would have walked towards where the Crown alleged the Pajero was parked. However, Mr Shar believed that Mrs Whelan had walked towards a white vehicle and not a 4WD. The Crown contended that in this respect he was mistaken and his recollection may have been confused by seeing a white sedan parked across the other side of the road which was observed on camera 7 at 9.38:45 am.

The police conducted a survey of owners of Pajero 4WD vehicles. Amongst others, two persons, Mr Morales and Mr Cox responded. Morales initially completed his form indicating that his Pajero 4WD was in Phillip Street on the morning of 6 May 1997 in the vicinity of the Parkroyal Hotel, although he later retracted this claim. There were a number of phone calls recorded on his mobile phone as being made via the Parramatta mobile phone cell to a Mr Parassas, who was a person who he visited at various times in the course of his work in Phillip Street, Parramatta.

Cox initially said that his vehicle was not in the vicinity of the Parkroyal Hotel on that morning. However, he later recalled that he had been at the Parkroyal Hotel on the relevant morning to attend a sunglasses exhibition. When the police attended his home to make further enquiries he indicated that he was not certain his vehicle was outside the hotel at the relevant time. However, when he saw a photo in the media during the inquest in 2003 he came to believe that he could observe his vehicle in the photograph identifying it from the fact that his vehicle and, he believed, the vehicle in the photograph, were fitted with non-standard wheels. He ultimately concluded that it could not be his vehicle because he was not observed on the video footage leaving the hotel that morning. He also recalled the position of a table from which tea and coffee was being served that morning and the video footage did not show it in the position he recalled.

Although he concluded that he did not attend the Parkroyal Hotel that morning, Cox was definite that the vehicle depicted in the video was fitted with non-standard “mag” wheels. However, Robilliard who worked for Mitsubishi gave evidence in which he stated that there was not sufficient detail available from the video images to make a determination in relation to the wheels which were fitted to the vehicle shown in the video. The Crown argued that the vehicle caught in the security footage at 9.01:24 am had a dirty rear windscreen similar to the rear windscreen of Burrell’s vehicle when it was subsequently inspected by the police on 16 May 1997. Examination of the video footage confirms that the windscreen was dirty, the path of the wiper blade having cleaned it in part.

Camera 6, which was inside the main lobby of the hotel facing out into the driveway and also into the street did not show Mrs Whelan at all after she left the car park. This precludes the possibility that she continued walking along the footpath or the street for any distance in a westerly direction or that she entered the hotel. However, there was another camera (camera 7) situated on the hotel frontage to Phillip Street just above the carpark ramp which pointed inwards away from the street towards the glass doors of a nightclub. Although the camera faced away from Phillip Street it was possible to see a reflection in the glass doors of a section of the Phillip Street roadway outside the car park ramp. The Crown alleged that this camera got a glimpse of the top of Mrs Whelan’s head as she exited the car park ramp to the right (west). It was submitted that this precluded the possibility that she crossed the road. It was also submitted that the fact that she was not seen afterwards by camera 6, or camera 7, precluded the possibility that she crossed the road or that she walked up the street to the west or that she entered the hotel. It was the Crown case that the only reasonable conclusion was that Mrs Whelan entered a vehicle parked outside the hotel.

As at 6 May 1997, Burrell was in possession of a 1993 Mitsubishi Pajero GLS, 2 door, 4WD vehicle. It was two-tone in colour, with the predominant colour being “Hanover Green” and it had a bull-bar and a running board but no roof racks. The 2 door Pajero was a relatively uncommon car.

At 9.38:46 am, 43 seconds after Mrs Whelan exited the car park ramp, camera 7 recorded a two door Pajero pulling out from the kerb lane just to the west of the carpark ramp, and proceeding in an easterly direction down Phillip Street. It was the Crown case that an indistinct passenger could be seen in the front seat. The Pajero caught on the camera was a two-tone, 2 door 4WD, and was a model made between 1991 and 1997. It was the Crown case that the vehicle on the video was consistent with the car owned by Burrell.

Extensive investigations by the police disclosed that there were only 1,716 two door Pajeros of the relevant model produced and sold in Australia in the years 1991-1997. Police contacted many of the owners of these vehicles who indicated that they had not been at the Parkroyal Hotel that day. The value of this evidence may be doubted. If a vehicle owned by another person had been involved in the kidnapping it is unlikely that its owner would have confessed to being in the vicinity of the hotel on that morning. However, on the Crown case the coincidence that 43 seconds after Mrs Whelan emerged into Phillip Street a vehicle of a kind similar to Burrell’s pulled out of the kerb was alleged to be of significance. The other camera inside the lobby of the hotel did not record Mrs Whelan as having walked along Phillip Street past where the vehicle was parked. The Crown case was that the irresistible conclusion was that she got into the vehicle seen by camera 7, the same kind of vehicle as that possessed by Burrell. When Mrs Whelan failed to meet her husband on the afternoon of 6 May 1997 he went searching for her car and found it in the car park of the Parkroyal Hotel. He then alerted the police and began a search for her.

The ransom demand

On the following day, 7 May 1997, Mr Whelan received a ransom demand by mail at his home. It was in the following terms:

“There will be no second chances. Follow all instructions or your wife will die.
By the time you receive this letter she will be safely in our keeping.
To ensure her safe return you must at no time bring in the police the press any authorities or outside assistance. We will know if you do so.
The consequences of breaching tis rule will be dire for your wife.
You are not our first Australian target there have been others. You have not heard of this in the past because they have implicitly followed all instructions and been reunited with there loved ones.
Do no underestimate our capabilities.
We will know if you breach any conditions at any time and you and your family will not see her again. This is our only garantee.
The ransom for her return in one million US dollars. The rate of exchange means you will pay one million two hundred fifty thousand Australian dollars to be paid in one hundred dollar Australian notes. Ensure only the new plastic notes are used. No paper currency. No consecutively numbered notes. The money is to be delivered in a heavy duty green plastic garbage bag.
The money is not to be photo copied. No remote transmitting devices. No radio active dusts. No dyes. No means of tracing the money is to be used.
We are able to scan and test for all such devices and any other method you may use. Do not be tempted for if anything is used to trace the money it will not be collected and your wife will die. No further contact will be made.
You have seven days. When the money is ready you are to put an advertisement in the public notice section of the Sydney Daily Telegraph newspaper saying:
‘Anyone who witnessed a white Volkswagon beetle parked beside the eastern gates of the Sydney Olympic site at 10.30 pm on Tuesday 8.4.97 please call …. then put your home telephone number at the end of the advertisement.
After the advertisement has been in the newspaper we will be in contact within three days at your home to tell you the next step. Be ready to leave with the money at any time.
The money is to be delivered by you and nobody else. Do not substitute yourself for the delivery. You must be alone. Have no wires on yourself or in the car you use. We will know if you try to use them. Do not use the car radio.
Any sign of outside involvement or interference and your wife will die.
We will be aware of everything you do. Take cae this is your only means of ever seeing her alive again.”

The demand had been posted the previous day and processed through the south-west mail centre at Leighton Field. This meant that the letter must have been posted somewhere in an area bounded by Bargo to the south, Silverwater to the north, Merrylands to the west and Bankstown to the east. The ransom letter was consistent with having been typed on a Cannon typewriter, using a Cannon Orator 10 daisy wheel. Burrell had a Cannon QS 100 typewriter in his possession at the time, but the daisy wheel and ribbon cartridge found in it were conclusively shown not to have been used to produce the ransom letters.

It was the Crown case that the reference in the letter to excluding the police and outside involvement were completely inappropriate in the circumstances in which the note was received. It was the Crown’s contention that the letter had been drafted with the expectation that the family would receive it before it was realised that Mrs Whelan was missing. Because it was posted at least a day and possibly two after Mrs Whelan’s disappearance the warnings about contacting the police were meaningless, because the family, in all likelihood, would already have notified the police. For this reason, the Crown case was that the letter had been written with the intention that the abduction of Mrs Whelan would occur from the family home on 16 April 1997 at which time the ransom letter would be left. Because other persons were present at the home on that occasion Burrell was unable to carry out his plan but did not alter the terms of his ransom letter before it was ultimately posted.

The relevant advertisements were subsequently inserted in the Daily Telegraph on 13 to 20 May 1997 inclusive. On 13 May 1997 Burrell was seen purchasing a Daily Telegraph newspaper. However, the advertisement prompted no response from any person. The defence case was that the fact that Burrell purchased a Daily Telegraph was of no moment as it could have been his regular daily newspaper.

The “false sighting” evidence

There was other evidence relating to Mrs Whelan’s movements on the morning of 6 May 1997. It was characterised by the Crown as “false sighting” evidence.

Mr Norman Elliott gave evidence. He said that he had observed Mrs Whelan a couple of weeks previously in a café in the Greenway Arcade at Parramatta. He said he noticed her because he found her appearance to be attractive. He said that on visiting the Parkroyal Hotel on the morning of 6 May 1997 he recognised Mrs Whelan as she was walking up the carpark ramp. He said he recognised both Mrs Whelan and the scene of her walking up the ramp when pictures were shown in the media some weeks later. He said that having entered the hotel he left it 4 or 5 minutes later, placing his exit well after the Pajero was seen to pass the front of the hotel ramp at 9.38:45. He said that he saw Mrs Whelan talking to a man across the other side of the laneway, immediately to the east of the hotel. The Crown submitted that Elliott’s evidence was unreliable because he initially said he entered the hotel through the revolving doors at the western end of the foyer and used the bathroom behind the reception desk but he could not be seen on the security camera at that point entering or exiting the hotel. He also described the man walking up the ramp behind Mrs Whelan (who if his recollection was correct must be Mr Shah) as caucasian and did not recognise him when he was brought into court during the 2005 trial. Shah was from India and was of dark complexion.

Elliott conceded that given that he had parked to the east of the hotel it was more likely he entered the hotel having immediately crossed the front of the car park driveway by the doors at the eastern end of the foyer and used the bathroom at that end of the foyer. Given the configuration of the cameras and relevant obstructions he would not necessarily have been picked up by the security camera if he took this path. It was contended on behalf of Burrell that Elliott may have been mistaken about Shah’s appearance because Shah was coming from the dark of the car park and from a position lower than Elliott and, more importantly, because Elliott’s attention was focused on Mrs Whelan who he recognised and not on Shah. Elliott remained convinced that he had seen Mrs Whelan that morning at the relevant times and in the circumstances he described.

There was also evidence from Mrs Frances Carter who worked in Parramatta and said she saw Mrs Whelan that morning with a man in George Street near the Octagon building. She said she paid considerable attention to this person because she appeared distressed and kept staring at Carter who immediately afterwards thought that she may have needed help. She was quite certain it was Mrs Whelan when she visited the caravan set up outside the Parkroyal Hotel and saw her photo and the mannequin which had been displayed. She also said that she recalled the diamond ring that Mrs Whelan was wearing. She said that she was 80 to 90% sure it was the same ring. She said that she took a keen interest in jewellery because her father was a jeweller for whom she had previously worked and the ring setting was quite unusual. She said she made this observation at 10.20 am or a little earlier. A computer sketch was generated of the man she believed she observed and when it was shown to a number of employees of Crown Equipment they were of the view that it bore a striking resemblance to an ex-employee. However, when the two police interviewed the relevant man, Ivan Frank, they did not confirm this observation. The description did not match that of Burrell.

The Crown sought to attack Carter’s reliability upon the basis that it was originally recorded in her statement that her observations took place at lunchtime. She said that this was because she had not properly determined her movements that day and originally assumed it was lunchtime because that was when she normally went for a walk. She said that she realised it was earlier in the morning when she cross referenced her movements that day with her employer and remembered that she had gone for a walk earlier in the morning, at his suggestion, just after she had arrived at work because she was suffering from a headache. She was also challenged because she had said in her original statement that she believed the woman was possibly Mrs Whelan but, in her evidence, said she was quite sure about it after visiting the caravan where the mannequin was displayed.

Mrs Margaret McMurray also gave evidence. She said she saw a woman she believed to be similar to Mrs Whelan just before 9.45 am. McMurray, a councillor on the Hornsby Local Council and a property manager was on her way to meet her solicitor at the Compensation Court. The Crown suggested her evidence was of little weight because she said the woman was only similar to Mrs Whelan and that she thought the woman was in her fifties. McMurray gave evidence that although she only said the woman was similar to Mrs Whelan she did think it was Mrs Whelan and that in her view a woman’s age was quite a subjective observation.

Other sighting evidence

The Crown called other witnesses who gave evidence of having sighted Mrs Whelan after she allegedly disappeared. The evidence was not accepted by the Crown to be reliable.

The evidence of Mrs Lambert

The first witness was Lambert, a customs officer who worked at the Brisbane International airport. She gave evidence of processing out of Australia, some time in mid May, a woman who was distraught and saying she was concerned she would never see her children again, although she had noted on her outgoing passenger card that she was an Australian citizen who was only going overseas on a short holiday. Lambert believed she marked the rear of this person’s outgoing passenger card with an X for subsequent identification should the woman’s departure become a matter of investigation. Some time thereafter Lambert saw Mrs Whelan’s photo on the television news with a report regarding her disappearance. At the time of seeing her photo Lambert thought she had seen Mrs Whelan previously and later that night, when in bed, came to realise that it may have been Mrs Whelan who was the distraught passenger she had processed leaving the country. She alerted her superior the next day who alerted task force officers who were investigating Mrs Whelan’s disappearance.

When the matter was investigated the cross on the rear of the outgoing passenger cards could not be found. However, the task was difficult because the cards she processed for the period were only retained as microfiche copies. This exercise took place in 2003, many years after the alleged kidnapping. Some years later, when she was frustrated with the investigation into her report and the inability to find the cross, Lambert attended an alternate therapist for Pranic massage after which she said that she may have marked the card of a male passenger whom she processed shortly after the distraught woman she believed to be Mrs Whelan. The Crown pointed to the fact that there was no passenger listed as Kerry Whelan who departed Australia from Brisbane during May 1997. It was also submitted that, given the evidence that Mrs Whelan was a loving wife to her husband and children, she would not have left the country in that manner.

The evidence of Mr and Mrs Williams

Mr and Mrs Williams were responsible for the care of the Whelan holiday house in Port Macquarie. They gave evidence that they had thoroughly cleaned the home, particularly the bathrooms, after the Whelans had last visited and before Mrs Whelan’s disappearance on 6 May 1997. They said when they returned to the house on 24 May 1997 they found a hair on a cake of soap, make-up on a bathroom floor, what appeared to be brown discolouration-like faeces in a toilet and, contrary to its usual condition, excess water in the shower recess. Subsequent forensic tests demonstrated that the hair on the cake of soap was that of Mrs Whelan.

The Crown argued that the evidence of Mr and Mrs Williams was unreliable because after the 2005 trial, Mr Whelan’s secretary had told him that Mrs Whelan had commented a long time before her disappearance that she was thinking of dismissing the cleaners because of poor work but had decided to keep them on because of their honesty. There was evidence that Mr Williams had on occasion been careless in leaving a light on. There was a vigilant elderly next door neighbour, Mrs Ericson, who had not noticed any activity at the Whelan home during the relevant time. The Crown submitted that it was inherently unlikely that Mrs Whelan, if she was the architect of her own disappearance, would visit their holiday home in Port Macquarie.

The evidence of Mrs Woods

Woods was a hairdresser from Armidale. She gave evidence that she had a customer in her hairdressing salon in Armidale on 19 May 1997. The woman had not attended the salon previously. She said that she had not visited since. Woods said that the woman acted very strangely. She said she subsequently saw photographs of Mrs Whelan in the media. She believed that the woman in the salon was Mrs Whelan. She particularly recalled an unusual feature of the woman’s hair which was apparent in Mrs Whelan’s photograph. Woods was the wife of the Armidale District Local Police Commander. Accordingly, the defence submitted that she had an acute appreciation of the trouble which could be caused to police by reporting a false sighting of a person of interest. The defence submitted that her evidence should have been given significant weight because of her identification of an unusual feature of Mrs Whelan’s hair. The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that Mrs Lambert, Mrs Woods and Mr and Mrs Williams were mistaken before they could convict Burrell.

The telephone call from Goulburn

Mrs Kathleen Pemberton was employed by Crown Equipment as a part-time telephonist / receptionist in May 1997. She generally worked Thursdays and Fridays. She was working on 23 May 1997 when she received a call from a male at about 9.30 am. She thought the call lasted for more than a few seconds but less than a minute. At that stage she was aware that Mrs Whelan was missing. She had not met Burrell. She took some “scattered notes” during the call and immediately after it finished contacted Mr Whelan’s assistant, Ms Mary Brady. She then made detailed notes of the call before the police arrived. She said that when she answered the call she was immediately told to tell Mr Whelan that Mrs Whelan was okay. The caller stressed to her that the media were to be called off as were the police. She continued:

“he mentioned the man with the white Volkswagon. I tried to ask ‘what man and what Volkswagon?’ Each time I did try to say something I was interrupted and said just to listen and write down and take notes.”

She said the man told her to make notes, and he stressed again that the police and media must be called off. This was to be done “today.” When she asked “what man and what Volkswagon” the speaker said “Mr Whelan will know” and that he would be in touch again in two weeks. When she then said “two weeks is too long” the call was disconnected. Before it ended she had asked if she could put him through to someone more senior, to which the caller said “no.” She described the caller as having a deep, husky toned voice. He did not have an accent. She described it as being neither a “posh voice” nor an “ocker voice” just “normal.” She said he used no slang words, she thought he sounded educated (by which in cross-examination, she meant only that he used no slang words and did not have an “ocker” voice). As to an estimate of age, she said “he was a mature voice, so I would say forties.” She indicated in cross-examination that this was really meant only to distinguish him from a young person or adolescent.

In December 1997 the police attended Pemberton’s home and played her seven cassette tapes of different people saying the same thing. Inspector Walsh gave evidence that these were an extract copied from an answer given by Burrell in his recorded interview, and six different police officers saying the same thing. The “identification procedure” was not recorded, but the tapes played or copies thereof were available, tendered through Inspector Walsh and played to the jury. Pemberton listened to the calls, and picked two which she thought were the closest to the caller. She could not differentiate between the two as to which was closest. One of those was the tape recording of Burrell’s voice, and one was a police officer who had no connection with the case (in fact none of the six police who provided samples were officers at Goulburn on 23 May 1997 or in any way suggested to be possibly connected with the making of the call).

It was the Crown case, and not disputed, that the caller was a person with knowledge of the contents of the ransom note. Evidence was adduced by the Crown that Mr Whelan’s knowledge of the contents of the note was not, before 23 May 1997, spread by him beyond those immediately present at the time that it was received.

The phone call and Burrell’s movements on 23 May 1997.

The police search of Hillydale lasted for five days and involved the full-time presence of a large number of police. There was also a large media contingent present. At 7.20 am on 23 May 1997, whilst police were still searching the property, Burrell left his home by a back route on his quad-bike. He went to the property of his neighbour, Phillip Broadhead, and borrowed his car. Leaving the Broadhead property at about 8.00 am he drove the car to Goulburn. At 9.21 am, at a time when Burrell was in Goulburn, the phone call was made from a public telephone box outside the Empire Hotel in the main street of Goulburn to Crown Equipment at Smithfield.

When Burrell was interviewed by the police on 15 June 1997 he admitted being in Goulburn on 23 May 1997 and having made two phone calls from public telephones. He admitted that one of the calls was made just after 9.00 am at the post office and one 20 to 30 minutes later from the public phone box outside the Empire Hotel. He denied making any calls to Crown Equipment. His explanation for being in the Empire Hotel phone box was that he made a call to the office of his solicitor, David Tyler in Goulburn, to make an appointment. It was the Crown case that Burrell’s explanation was demonstrably false. Although he did make a call to his solicitor’s office that morning it was a call which he made from a post office phone box. That call could be timed from records kept by the receptionist at the solicitor’s office and it was the Crown case that it was not made at or around 9.21 am. The solicitor’s office was in the side street nearby and it would have been closer for Burrell to have gone to the office rather than to walk from the post office to the phone box outside the Empire Hotel. The Crown case was that the coincidence of Burrell making a call from the relevant phone box at almost exactly the time the call was known to have been made to Crown Equipment provided highly probative evidence that Burrell was involved in the abduction.

The Crown case was that Burrell admitted being in the Empire Hotel phone box at the time the call was made to Crown Equipment because he believed he was under police surveillance when he went to Goulburn and did not want to be caught out telling a lie. If he had been observed, and if the police could prove he was in the phone box at that time, a denial by him would have been very suspicious and amounted to evidence against him. It was submitted that he evaded this possibility by providing an innocent but untruthful explanation for his presence in the phone box.

J C Walsh & Sons

Ms Emma Hill gave evidence that in 1997 she was the receptionist at J C Walsh & Sons where Mr Tyler worked. Her starting time was 9.00 am. She was never late and never very early, and would arrive at 9 am or a few minutes before. A phone book tendered through Ms Hill showed that Burrell did make a successful call to David Tyler on the morning of 23 May 1997. Her record did not show the time of the call, and no phone records were available to time that call. She did not remember the time of the call. She was not approached by police until a month after the 23 May 1997, at which time she could say no more than that it was after 9 o'clock, being the time she started. Ms Hill's “estimated guess” as to the time of Burrell’s call, being the second call of the day, was that it was between 9 and 9.10 am. In cross-examination she agreed that possibly between 9 and 9.15 am would be a safer estimate of the time within which Burrell’s call had come through. In re-examination Ms Hill was asked to assume the correctness of the evidence of another witness, Jennifer Elliott, who said that she made a call at 9.30 am. On that assumption Ms Hill thought the 9.10 am mark would be better than 9.15 am because of the number of calls coming in between Burrell’s call and Jennifer Elliott's call. The book showed Jennifer Elliott to be the tenth caller of the day and Sharon Shorrock to be the twelfth.

Sharon Shorrock gave evidence that she had a hydraulic car repair business. She usually got to work at 9.30 am - 9.45 am, after dropping her daughter off at pre-school from 9.30 am. In May 1997 she was ringing her solicitor Mark Walsh frequently. After she went through the procedure of opening windows, turning the computer on, and opening the shop, she would then turn to open the mail. That took 10 – 15 minutes. Normally she would finish those tasks about 10.00 am, then call Mark Walsh. Her best estimate at the trial, and at the time she provided a statement to police on 15 July 1997, was that she had called at about 10 am on 23 May 1997. She acknowledged that she could not recall exactly. She correctly nominated, in her statement, the fact that she did not in fact get on to Mr Walsh when she called that morning. She was cross-examined by the Crown. She acknowledged the possibility that sometimes she could have called as early as the 15 minutes between 9.30 am and 9.45 am.

Intercept

There was an intercept installed on the landline at Hillydale from 20 May 1997 to December 1997. At 6.41 am on 23 May 1997 Burrell spoke to his neighbour Phillip Broadhead, and the terms of the conversation indicated clearly that Burrell was going to get access to a car for the purpose of going into town. Details of conversations monitored pursuant to warrants may only be released to “authorised officers”. As at 22 and 23 May 1997 the authorised officers included Detective Inspector Davis, Detective Inspector Dein, Detective Inspector Howe, Detective Superintendent Bray, Detective Inspector Henderson. According to the Investigators' records Detective Sergeant Duncan (who came to be the defence's primary focus as a possible caller to Crown Equipment) was not added to the list until the 26 May 1997.

Detective Superintendent Bray gave evidence that on 23 May 1997 he received a call from Inspector Howe about the call received at Crown Equipment. He said that prior to that he did not have any knowledge that Burrell had left Hillydale and gone into Goulburn, and did not know from any documents or conversations with other officers whether information was received by any police officer, prior to the call being made to Crown Equipment, about Burrell having left his home at Hillydale to go into Goulburn.

Detective Inspector Henderson was called but was asked nothing in chief about whether he, as an authorised officer for the intercept, received information of the Phillip Broadhead call. Although an answer in cross-examination suggested that he did receive such information, he explained in re-examination a mistaken understanding of the question, and suggested that he did not recall receipt of any such information, and did not think that he did have any knowledge of Burrell’s departure from the property until he received a call from Inspector Couch at 10.30 am. No evidence was called from Detective Inspectors Dein, Davis or Howe as to whether they received information from the Telephone Intercept Branch as to Burrell's call to Phillip Broadhead.

Police Movements

Because the Crown expected the defence to seek to raise as a reasonable possibility that a police officer had made the call to Crown Equipment, evidence was adduced in the Crown case denying that proposition and other related matters raised by the defence. The two most senior investigators from the Task Force in Goulburn on the morning of the 23 May 1997, with knowledge of the ransom note, were Detective Sergeant Allan Duncan and Detective Ricky Agius. On 22 May 1997 Senior Constable Turnbull (a Goulburn crime scene officer, assisting the officers of the task force) organised for the collection of various seized exhibits for transporting the following day to Sydney. Detective Sergeant Duncan was to attend to that, and Senior Constable Turnbull's duty book indicated that Detective Sergeant Duncan was advised of that proposal.

Detective Agius gave evidence that all his movements on 23 May 1997 were with Detective Sergeant Duncan. He gave evidence in chief that he commenced duty at the Academy at 1.00 am, travelled to Hillydale then to Goulburn at 8.00 am where the exhibits were signed out. Detective Agius was taken through the times in the various exhibit books; Lidcombe at 10.10 am and Parramatta from 10.40 am. He was taken to his phone records, and in particular the entry at 8:33 am which Detective Sergeant Duncan said he was responsible for (a call to his wife, introduced in the re-examination of that witness). Detective Agius said there was a "good chance" he was in the car at this time. He was asked in chief how long he was at Hillydale, and said "It would have been just a case of `We're going back to Sydney - anything to be done?' - just in and out."

Detective Sergeant Duncan gave evidence in chief that he went from the Police Academy to Goulburn with Detective Ricky Agius where the exhibits were collected, then to Hillydale and on to Sydney. His duty book contained an order of events in accordance with the evidence of Detective Agius. Detective Sergeant Duncan agreed that none of the exhibit documents in respect of 23 May 1997 pointed in any way to his attendance at any of the three locations. None of the officers who received exhibits (Inspector Jago, Mr Miller, Robert Goetz) added anything as to who delivered them.

Detective Inspector Henderson gave evidence that his duty book for 23 May 1997 said "Contact Analytical Labs. Confer Detective Sergeant Duncan. Confer Detective Sergeant Walsh re Bungonia", and that the next entry was meal break 12.30 pm to 1.30 pm. Having reviewed that, he said he was of the view that he consulted with Detective Sergeant Duncan at Parramatta Police Station that day. He said that he conferred with both Duncan and Walsh, immediately prior to his lunch break at 12.30 pm - but then said he was not sure if there was something else in between.

The trip from Goulburn to Hillydale

The call from the public phone booth outside the Empire Hotel to Crown Equipment commenced at 9.21:35 am, and lasted 48 seconds. It was completed at 9.22:23 am. Detective Superintendent Bray conducted a timing exercise shortly prior to the trial. He said that the trip from the front gate of Hillydale to Mr Broadhead's took 5 minutes 8 seconds, from there to Mount Ash Road took 6 minutes and 20 seconds, and from Mount Ash Road to Goulburn took 18 minutes. That is, a total trip taking 29 minutes and 28 seconds, to which a minute or so needed to be added for the travel from the front gate of Hillydale to the homestead itself.

Phillip Broadhead gave an estimate of 25 minutes travel time from his property Inverary (through Bungonia, closer to Hillydale) to Goulburn. Sergeant Smith's surveillance duties on 16 May 1997 included following Burrell from Bungonia at 9.53 am, arriving in Goulburn at 10.13 am - a 20 minute trip. Burrell purchased alcohol in Goulburn on 23 May 1997. According to the receipt generated by Mac's Liquor the purchase occurred at 8.31 am. He collected the utility from Phillip Broadhead's at about 8.00 am. Based on this evidence the Crown submitted that it was possible for Burrell to have left the phone box after the call to Crown Equipment and be back at Hillydale at a time which would have been recorded in the Command Post log as 9.55 am.

Officer Hamilton, the author of the Command Post Log for 23 May 1997 said that he had no independent recollection of when the white utility returned. However, he said the log entry of 9.55 am would be reasonably accurate within one or two minutes. Burrell was, according to the log, at the property for 5 minutes before departing again. Mr Broadhead gave evidence that he met Burrell at the apex about half way up his 600 metre driveway. This was either at 10.00 am precisely, as he said in evidence in chief, or a couple of minutes before as had been the effect of his evidence in 2005, and he conceded in cross-examination that could be the case. He agreed that he was not late for a pre-arranged 10.00 am meeting with his near neighbour Kevin Cooper.

Reason for call

The Crown submitted that Burrell made the calls because of the intense pressure which the police surveillance had imposed on him. On 17 March 2006 during the course of the Crown's opening address, the prosecutor said:

“The Crown case is that during those five days between 21 and 25 May 1997, the accused, Bruce Burrell, was under intense pressure. Not only did he have a large contingent of police encamped within view of his house, not only did he realise that he was under surveillance whenever he left and came back to the house, not only did he know that they were swarming over Hillydale, but there was a large contingent of the media camped just outside the front gate at Hillydale. Not only that, but there was extensive media publicity about this police search and about him.

So the Crown case is that during those five days he was under intense personal pressure, and it was because of that intense personal pressure that the Crown says he made a terrible mistake on 23 May, right in the middle of this.”

Burrell’s back pain

When interviewed as to the events of 6 May 1997 Burrell said that he was at Hillydale on his property. Kevin and Beryl Cooper were Burrell’s closest neighbours. Mr Cooper was affiliated with a group called Landcare which amongst other pursuits replanted areas of old land with pine tree growth. His son Neil was a forester who undertook work for the organisation. At some time prior to 6 May 1997, Mr Cooper and his son had organised for an inspection to take place at two properties near Bungonia to assess them for potential pine plantation. Before 6 May 1997 Mr Cooper also had in mind asking his son and colleague when they attended to take a quick look at Burrell’s property to assess whether a portion of it commonly referred to as the “Rabbit Ears” portion may be suitable for pine afforestation.

In his record of interview given on 21 May 1997 Burrell described himself as being at the farm on 6 May 1997 and “incapacitated” by his back problems. He said that his back pain had started on the day of his father’s birthday, 2 May 1997. He said that he rang the doctor, Dr Chris Harmon. Dr Harmon gave evidence that he had written a prescription for the anti-inflammatory drug Orudis which he had pinned on the door of his surgery but it had never been collected. Burrell also said that he had contacted Ms Robyn Doolan a physiotherapist.

Ms Doolan gave evidence. She said that Burrell contacted her at about 6.30 pm on 7 May 1997 while she was treating another patient. She was booked out for the next morning but agreed to fit him in before her first appointment at 8.30 am. At about 7.30 am on 8 May 1997 Burrell called her at home saying that he felt that he would be better off to “veg out” at home that day. He told her that he had some medication he could take. It was known that Burrell was able to travel on 5 May 1997. On that day he went to town and banked a cheque and bought some alcohol from Mac’s Liquor in Goulburn. Both Mr and Mrs Cooper saw Burrell on 4 May 1997 when he came to get some photocopying done. He declined their offer to sit down because he said he had back pain and wanted to stand. He also declined their offer of a beer. When asked what was the problem he responded that it was the sciatic nerve in his back. Both Mr and Mrs Cooper believed that Burrell was on that occasion in pain not just from what he told them but also how he looked.

It was the Crown case that Burrell had attempted to create a false alibi. It was contended that Burrell had a problem in relation to Mr and Mrs Cooper because of the arrangements which had been made to inspect his property. Although he could have contacted them by telephone or by two-way radio, the Crown said that his reason for visiting them on 4 May 1997 was to establish in their minds that he was suffering from back pain which would provide an explanation for why he would not be there on 6 May 1997 when the foresters came to look at “Rabbit Ears.” The Crown elicited evidence from Dallas Bromley to the effect that Burrell had not suffered any serious back injury during the course of their marriage. Although from time to time he had a sore back, she did not ever observe it to be debilitating to the extent that he could not work. Although Burrell had claimed in a record of interview that his back pain had been sufficiently severe to require his wife to take him to a doctor in Sydney she denied that this had ever occurred.

The Coopers

Mr and Mrs Cooper went onto Burrell’s property on 5 May 1997 to check “Rabbit Ears” themselves. Mrs Cooper gave evidence that on the evening of 5 May 1997 she left a message on Burrell’s telephone service indicating that she and her husband had gone in to have a look at “Rabbit Ears”. She was asked in chief whether there was any contact between her house and Burrell on 6 May 1997 and she said there was “contact in the morning, when Bruce called me back to let me know that he had received my message.” She was asked to indicate whether she could say it was a telephone call or UHF communication and she responded “After having thought about it before the last court appearance, I am definitely sure that it was a UHF call.” Her evidence was that the call was at about breakfast time, although that could have been at any time between 6.00 am and 8.00 am. Mr Cooper gave evidence that he could not definitely recall having any direct contact by phone, radio or in person with Burrell on 6 May 1997. As far as he remembered it was his wife who had the contact which he recalled as occurring at about breakfast time.

The police intercepted a telephone call between Mr Cooper and Burrell made on 8 August 1997. The recording was tendered at the trial and its transcript read as follows:

“BURRELL: Mate, just a quick question for you. Do you remember the day that, um – remember we were talking about putting in the pines over here up on that shaly stuff?
COOPER: Yeah
BURRELL: Do you remember, um, your son and a mate of his – well, it was up from Canberra, and they came across and had a look? (Pause)
COOPER: That’d be Neil and Dave.
B: Yeah, Neil and Dave
C: Yeah
B: That’s right. Do you – you remember that don’t you?
C: I remember it, yeah, but I wouldn’t know the date.
B: Well, mate, it was in the middle of your shearing from memory.
C: Well Neil was working all the time at the shearing.
B: Yeah, but, mate, someone – I remember they came over when they had a break or something … (pause)… and they had a look at that bloody shaly area. Remember we were talking there on the left where Dave cleared it years ago.
C: Yeah. Yeah, I know where you mean. Yeah?
B: But, mate, you rang me that day and told me that Neil had been across and had a look and said ‘Yeah, you could probably put them in but there’s not as big an area as we thought it was.’
C: Mm.
B: You remember that?
C: Yeah, I remember that.
B: Mate, is there any way you can remember what that date was?
C: No, not unless …
B: All I’m thinking is, mate, I’ve got a feeling it was around a specific date and I’m just wondering whether if I could find – whether you rang me that day. Apparently Telecom keep records of local calls but they just don’t send them out. I’m just wondering if you make requests for them and so on: you know what I mean?
C: What day was – that would be in May.
B: Yeah, mate, it was early May. And, mate, I’ve got a feeling it was the sixth of May that we spoke – that you rang me. (Pause)
C: Oh, I’ve got it in the diary.
B: Yeah?
C: ‘Bruce Burrell, Rabbit Ears.’
B: What’s ‘Rabbit Ears’?
C: That’s the name of the paddock.
B: Oh, is it?
C: That’s what we used to call it.
B: What’s the date on that?
C: The sixth of May.
B: You’re fuckin’ joking? Are you serious?
C: Yeah, that’s what I got in my diary, but I don’t know whether we went down to see it that day or not.
B: Kevin, do me a favour.
C: Yeah.
B: Will you make sure you hang on to that?
C: Yeah.
B: Ah, and, mate, don’t tell anybody – I, I’ll come over and see you over the weekend.
C: I got ‘late morning.’ …
B: Late morning?
C: ‘Di and Phil’, ‘Bruce Burrell, Rabbit Ears.’ So that’d be when Neil and Dave come down.’

There was then some further conversation about the entry, and Burrell again requested that Mr Cooper keep it. There was unequivocal evidence that 6 May 1997 was the day the foresters came to Bungonia. The Crown put to the Coopers that the only contact between their household and Burrell on 6 May 1997 was the “report back” telephone call from Kevin Cooper to Burrell after the inspection. The Crown suggested that during the phone call Burrell was attempting to manipulate Mr Cooper’s memory so that he could confirm meeting with Burrell on that day. Through cross-examination of Mr Cooper, the Crown adduced evidence that in his statement to police of 13 August 1997 he said, “I think it was around this time we were going on to Bruce Burrell’s property, and, as normal, I would have tried to contact Bruce Burrell by UHF radio to let him know I was going on to his property with the forestry people.” He also said “I cannot recall if, on this occasion, I actually spoke to Bruce on the radio or not.” He agreed that in that statement there was no mention of any call from Burrell prior to the visit of his son on 6 May 1997.

Items found at Burrell’s property

After Mrs Whelan disappeared the police concentrated enquiries on Burrell because of the information from Ms Minton-Taylor about his visit to Kurrajong three weeks previously. On 21 May 1997 a massive police search lasting five days was conducted of Burrell’s property “Hillydale”. The property was large and remote with extensive natural wilderness areas and precipitous cliffs. The site was apparently dotted with numerous disused mine shafts. No trace of Mrs Whelan was found and subsequent searches have also failed to reveal any trace of her.

The typewriter

When police searched Burrell’s premises they found a Cannon QS100 personal typewriter. The typewriter, its daisy wheel and the typewriter ribbon were carefully examined by the Document Examination Unit of the NSW Police Service to which Detective David Williams was attached. He said that the Cannon QS100 typewriter found in Burrell’s house was an electric typewriter with a plastic daisy wheel to create letters. As such, it was difficult to make a specific finding that the particular typewriter did or did not create a particular letter, a finding more capable of being made with the older style typewriters with metal keys and more workable parts likely to have faults which would be discernible in the document in question. He contacted Cannon and ascertained that the model typewriter found at Burrell’s house was provided with a single daisy wheel called a Courier 10 daisy wheel. Detective Williams’ examinations led him to the view that a Cannon QS100 typewriter could have been used to type the ransom note but that the note was not capable of having been created with the Courier 10 daisy wheel. An Orator 10 daisy wheel could have been inserted into Burrell’s typewriter to type the ransom note. The ransom note could also have been created by a completely different type of typewriter. Examination of the typewriter ribbon also indicated that it had been used for typing with a Courier 10 daisy wheel and not an Orator 10.

Burrell’s vehicles

The police also found two motor vehicles at the property:
Burrell’s dark green 2-door Pajero 4WD of the same kind as that seen in the security camera at the Parkroyal Hotel on the morning of 6 May 1997; and the Jaguar in which Burrell had turned up at Kurrajong on 16 April 1997.

DNA and a search of the property

The police examined both of the motor vehicles in Burrell’s possession. They were examined for traces of hair or of DNA which would not have been observable to the naked eye. The evidence was that the Pajero was dusty, the interior of it being dirty. Notwithstanding the fact that the interior contained a large number of hairs and it was otherwise dirty, no relevant evidence was found. None of the hairs which were analysed demonstrated any connection with Mrs Whelan. An intense and extensive search was conducted of the Hillydale property and surrounding areas. No trace of Mrs Whelan was located.

The “dot point” notes

The police found two notes, described as “dot point” notes in Burrell’s handwriting. The Crown case was that the first note was consistent with being an early outline of a kidnapping plan. The first note, and the Crown’s suggested interpretation of it, was as follows:

collection [of the victim];
advertisement [of Bernard Whelan of the kidnapping and ransom demand];
waiting [while the money is obtained by Bernard Whelan];
how to proceed [in handing over the money];
pick up [of the money]
cover all [of his tracks].

The Crown submitted that a second “dot point” note which was found was also consistent with being an early outline of a ransom letter and bore many similarities to the ransom letter received by Mr Whelan. The second note, and its suggested interpretation, was as follows:

has been K [kidnapped];
no P [police];
letter within 2 days [informing Mr Whelan how to hand over the ransom];
nothing until received [a doing nothing until the money is received]
stress “2” [no police].

The Crown submitted that the similarity between the dot points and the ransom letter was stark. It was submitted that the ransom letter had the following structure:

Kerry Whelan is safely in our hands [collection; has been kidnapped]; you must at no time notify the police or the press or anyone else [no police]; the ransom is US million dollars and you have 7 days to get the money together [waiting], then place an advertisement in the Telegraph [you will be advised within 3 days] [letter within 2 days] how to hand over the money [how to proceed]; any sign of outside involvement will result in Mrs Whelan’s death [nothing until received; stress no police]

The chloroform and UBD directory

The police also found:

an almost empty bottle of chloroform which was found in a locked gun cabinet located in a walk-in wardrobe. Burrell had purchased it one to three years earlier from a pharmacy at Maroubra. Burrell alleged when interviewed that he obtained the chloroform to remove a stain on an enamel heater caused when he placed some clothing on it. His wife (Dallas) confirmed the staining but denied seeing chloroform or speaking with her husband about it.

a UBD street directory found in the Jaguar. On two pages in the directory (maps 51 and 61) which covered the area between Phillip Street, Parramatta and Crown Equipment’s premises at Smithfield, the exact location of the Parkroyal Hotel in Phillip Street, Parramatta was highlighted and the address of the Parkroyal Hotel was written in highlighter pen. Also highlighted was the route from the Parkroyal Hotel towards the premises of Crown Equipment in Smithfield, as far as the intersection of Warren Road and Long Street which is the turn off on the nearest main road to Crown’s premises. It was the Crown case that these markings on the street directory were consistent with Burrell planning to pick up Mrs Whelan from the hotel in Phillip Street and drive her towards Crown Equipment in Smithfield. It was submitted that it was a coincidence of significance that the highlighting in the directory focused on the location from which Mrs Whelan disappeared. The highlighting also showed two deviations not printed on the map, because they were changes that had been made to the road after the map had been printed. It was the Crown case that these deviations and the precise marking where the Parkroyal Hotel was in Phillip Street, showed that whoever did the highlighting had a profound knowledge of the roadway between Parramatta and Smithfield and a good knowledge of which block the hotel was in. The Crown case was that it was not consistent with the map being marked by Burrell to show the way to Parramatta because he did not know which way to go for a lunch with Mr Whelan. It was said to be consistent with Burrell marking the route of a planned abduction.

The defence case was that Burrell had been to the hotel previously with an employee of Crown Equipment. Accordingly, it was not surprising that the map was marked, the explanation for which was that Burrell had done this to assist his earlier travel to the hotel.

It was the Crown case that Mrs Whelan was picked up by Burrell from outside the Parkroyal Hotel in Phillip Street. It was submitted that she voluntarily entered the vehicle having arranged to meet Burrell there at 9.30 am. The Crown’s theory was that Mrs Whelan had reluctantly agreed to go with Burrell to her husband’s office at Crown Equipment to assist Burrell in his request for work. The Crown case was that the absence of any evidence of a forced abduction in the busy streets of Parramatta confirmed that Mrs Whelan must have voluntarily entered the motor vehicle. It was the Crown case that Mrs Whelan was not subdued by violence but rather Burrell used a stupefying substance, namely the chloroform of which the residue was found in a bottle at his home. Use of chloroform would minimise the opportunity for Mrs Whelan’s DNA to be deposited on the motor vehicle.

It was the Crown case that Mrs Whelan was not immediately subdued. Rather it was suggested that Burrell drove to a location between Phillip Street and Crown Equipment where there were no buildings within a radius of about 500 metres. It was at the time of her disappearance a large open area. It was also the area where the marking on the street directory finished and the Crown submitted that Burrell had carefully identified that area as being an appropriate place to stop and, using the chloroform, subdue Mrs Whelan. The Crown case was that the highlighting in the UBD street directory was consistent with careful planning in advance as to how Mrs Whelan could be abducted without arousing attention and without creating evidence which could later be discovered. It was suggested to be the same kind of advanced planning as revealed by the two “dot point” notes.

The Defence Case

There were a number of matters directly addressed by the defence. I have provided below a summary of the defence position on important issues.

The defence case in relation to the ransom letter

The defence emphasised during the course of the trial that typewriters of the type found at Burrell’s property were common. Furthermore, the defence emphasised that there was no forensic evidence such as finger print analysis to suggest that Burrell had in fact at any time changed the daisy wheel in his own typewriter from the standard Courier 10 with which it was supplied. With respect to the notes which were found at Burrell’s property the defence emphasised that there were differences between the dot point lists and the ultimate letter. In particular the word “receive” was correctly spelled on the dot point list yet it was spelled “recieve” on the ransom letter. It was also suggested that the ransom letter’s request for notification by Mr Whelan of his phone number was not readily explicable if written by Burrell. Burrell obviously knew the number as he used it to telephone on 16 April 1997. Furthermore, it was emphasised that Mr Whelan was familiar with Burrell’s voice so that he could not feasibly be telephoned by Burrell in furtherance of a kidnapping.

The defence also emphasised that there was no apparent purpose in Burrell requesting the placement of the advertisement in the newspapers. If its purpose was to notify the sender of the letter, within the seven day time limit, that the money had been obtained there was no evidence on 11 May 1997 (when Burrell was under surveillance) that he left the house to buy a paper. Although on 12 May 1997 he was followed to Goulburn there was no suggestion that he was observed to buy a newspaper on that day. It was emphasised that there would be no need to place an advertisement if the author of the note simply expected that in precisely seven days the money would be available.

The dot point notes – the defence argument

Burrell refused to answer any police questions with respect to the notes found in his house. At the trial, defence counsel offered alternative explanations for the notes to those suggested by the Crown. It was submitted that they were ambiguous and that “has been K” was capable of being a reference to Keane & Co as a client, the evidence being that Burrell undertook a number of contract jobs for that firm while his wife worked there. “No P” in that context could have meant something like “No payment up front.” It was further suggested that the note could have been a response to a concerned enquiry about something having been lost “Has been kept”, “no problems”, “letter within 2 days” to explain the same, meaning not to do anything until a letter has been received. It was also suggested that the letter “K” could stand for “key” or “key word” or “key player” or “key note”, “kicked”, “kind”, “kin or “known.” It was suggested the note could have related to a prospective client.

As to the second note it was suggested that it could have related to anything connected with Burrell’s work, farm endeavours or personal life. Being of a general nature the defence submitted that it was not unambiguously related to the ultimate ransom letter.

It was submitted that the notes could have been written as long ago as 1987 when Dallas Bromley started working for Derek Keane & Co. In the alternative it was also suggested that it could have been written at least as far back as 1988 if it was in fact written at Hillydale.

The suggestion that there was no sinister explanation for the notes was said to be reinforced by the fact that Burrell took no steps to destroy the documents, even though he became aware of police interest in him from the execution of a search warrant on 21 May 1997. The defence pointed out that he had a wood fire in his home and he was left alone by the police until the documents were seized on 25 May 1997, some four days after the execution of the initial warrant.

The phone call of 23 May 1997 – the defence case

The defence relied on Ms Hill's evidence as to her starting time to draw the inference that Burrell must have been mistaken about making his first, unsuccessful, attempt to call his solicitor just after 9.00 am. It was submitted that it must have been shortly prior to 9.00 am. Burrell’s estimate of the successful call from the phone box outside the Empire Hotel, being about 20 minutes later than the first, would have placed him in the phone box at a time earlier than 9.21 am. This would have been earlier still if his estimate of about 20 minutes was even slightly inflated.

It was contended that Ms Hill's concession in cross-examination of the range of 9.00 am to 9.15 am being a safer estimate of the range of the second call was more reliable than the more limited "guessed estimate" in chief. The evidence of Sharon Shorrock would have supported the morning being quite slow, but within a normal range. The evidence of Jennifer Elliott, which Ms Hill was asked to assume the correctness of in re-examination, was said to be flawed in a number of respects. She was not spoken to about her phone contact with J C Walsh & Sons until 15 July 1997 - nearly two months after the call. The call she was referring to when she made her statement and gave her evidence was a call which was successful, in that she was able to speak to her solicitor Mark Walsh. She was having frequent contact with him at that time, and thought it could be that very day that she started ringing at an earlier time of about 9.30 am, because she had been trying later unsuccessfully. However the evidence of Emma Hill and Exhibit BZ made clear that Jennifer Elliott's call on the morning of 23 May 1997 was not put through to Mark Walsh. Accordingly, it was submitted that Ms Elliott was recalling the wrong occasion of phone contact when she made her statement on 15 July 1997.

Ms Hill agreed with the obvious propositions that no day was the same, some Fridays were more busy than others. Even in the busier period of 9-10 am there would be variations from day to day in terms of when there were bursts of calls coming in. The defence took issue with the Crown's attempt to estimate the timing of Burrell’s successful call. What was said to have been a more critical area to have pursued was the timing of the calls on either side of Burrell's. David Tyler did not know the time of the call and would not have recorded it. There was no evidence as to the length of the call. The first call of the day was from Ernest Ash to David Tyler, but there was no evidence as to when, after 9.00 am, that call came in or, for how long it lasted. Ernest Ash was not approached until 2000 (or perhaps 1998) but in any event is now deceased. The call after Burrell’s was from Don Elder, a Goulburn solicitor with an office across the road from JC Walsh & Sons. There was no suggestion that he has been questioned in relation to the timing of his call.

In essence, the defence case was that the suggestion that Burrell made an unsuccessful call from the Post Office public phone booth shortly before 9.00 am, then a successful call starting between about 9.10 am and 9.15 am, fitted in with the reliable evidence. It was emphasised that Burrell’s answers in his interview came too long after the event, and in connection with too mundane a series of events, to be treated as literally marking his movements to the minute. The timing suggested by the defence of his call to the solicitors from the Empire Hotel phone box, in light of the evidence relating to Walsh & Sons, was said to tie in perfectly with the contention as to the time by which Burrell must have departed the phone box to drive back to Hillydale and on to Mr Broadhead's. It was submitted that the time of his call was incapable of being firmly established. All that could be safely said was that the Crown did not produce evidence from which it could be said that Burrell's account of ringing his solicitor from the Empire Hotel phone box before returning home was untrue. Burrell’s estimate of the time in his interview may have been five or so minutes out, an error on which nothing turned.

The Trip to Goulburn - the defence argument

It was submitted by the defence that it was important that no tests of travel times were conducted in 1997, Detective Superintendent Bray's exercise (29 minutes 28 seconds from front gate of Hillydale to Goulburn) being conducted shortly prior to the 2006 trial. The contrast between the state of the road in 1997 and later times was said to be significant. Both Coopers gave evidence that the trip between their place and Hillydale is over better roads now than it was in 1997. Mr Cooper said that the present owners spent money on doing up Shepherds Hill, a steep hill which used to be badly washed out at the bottom. Detective Superintendent Bray timed the journey from the outermost gate of Hillydale (that is, the edge of the property) to the Coopers' front gate as 4 minutes 20 seconds. Mr Cooper initially said 3 minutes but agreed that after giving a 5 to 10 minute estimate last year, he subsequently tested it and found it to take 4½ minutes. Mrs Cooper said that in 1997 the road between her front gate and Hillydale was just all ruts and speed humps, whereas it has now been reformed and is a much quicker trip. She said it now takes her about 5 minutes to get from her front gate to Hillydale, depending on how many gates need to be opened.

Officer Hamilton's log was said to be demonstrably wrong in so far as it recorded Burrell's arrival back at 9.55 am and departure at 10.00 am. It was said that to arrive at Mr Broadhead's as Burrell did at 10.00 am sharp (or slightly earlier) would have necessitated leaving the homestead prior to 9.55 am. Accepting that Burrell was on the property for about 5 minutes, after his return, it was submitted that he must have arrived back even before the time of 9.51 am with which Officer Hamilton was prepared to agree as a time which would be rounded up by him to ‘9.55'.

The weather was also highlighted. Inspector Couch said, when describing the constraints in searching the property between 21 and 25 May 1997 that the climatic conditions were pretty horrendous. He complained of there being very heavy rain which made the roads, which were unsealed roads, quite difficult to manoeuvre. Exhibit 23 comprised documentation from the Bureau of Meteorology tendered by the defence. It showed that the heaviest period of rain during the five days of the search was in the 24 hours up to 9.00 am on 23 May 1997 (5 mm), and that there was more in the 24 hours which followed (0.8 mm). These measurements were taken at Inverary Park, Mr Broadhead's property. Broadhead's stated recollection in re-examination of 23 May 1997 being a fine day was accordingly mistaken. Inspector Couch had said that on 21 May 1997 there was a bit of rain, but that it was not what they experienced over the next few days. Mr Cooper gave evidence that if a person was not in a 4WD, the road between his place and Hillydale back in 1997 was considerably affected by rain, in a negative way and the trip became a lot slower. The road between the Broadhead's property and Hillydale was unsealed.

Inspector Couch gave evidence that between 21 and 25 May 1997 the trip from Goulburn to Hillydale regularly took three-quarters of an hour to an hour. This was travelling directly from Goulburn to Bungonia to Hillydale, not the longer route via Marulan. He said there were a couple of kilometres to the homestead on entering the property; and accepted that on arrival at the property the gates were closed and the general rule was complied with: “if a gate is closed, you go through it and close it.”

The record showed that the call from the public phone booth outside the Empire Hotel to Crown Equipment commenced at 9.21:35 am, and had a duration of 48 seconds. It was terminated at 9.22:23 am. The Crown case was that in the next 35 or 37 minutes and just before 10.00 am, Burrell got back to his car, drove back to Hillydale, spent approximately 5 minutes there and then drove all the way back to the Broadhead’s. Detective Superintendent Bray's reconstruction indicated that from the front gate of Hillydale to the front gate of Mr Broadhead's property took him 5 minutes and 10 seconds. On 23 May 1997 Burrell had to come from the house, not the front gate, was travelling on the road, which was in a worse condition than at the time of the trial, and slowed appreciably by the wet conditions, and had to enter Mr Broadhead's gate and get half way up his driveway.

Kevin Cooper said that from his place to Goulburn he allowed 30 minutes. He agreed that if he, as someone with knowledge of the road, was in a good vehicle and "pushed it hard" he could get there in 25 minutes. Added to this time would be the trip from the phone box back across the road, through a shopping centre and out to the car in the car park (which Detective Superintendent Bray suggested would take a couple of minutes), and the distance from Cooper’s to Hillydale. The evidence of Broadhead was that although the utility was roadworthy it was not powerful, and was slower than an average vehicle.

Having regard to the time which was said to be required to make the necessary movements, the defence case was that Burrell could not have left the public phone box as late as 9.22:33 am. It was submitted that if he had left the box some minutes prior to the commencement of the call to Crown Equipment at 9.21 am this would have allowed time for a police officer who had seen him in the phone box to wait for his departure to the car park and then make the call.

Inherent implausibility – the phone call to Crown Equipment

The defence submitted that there was an inherent implausibility in someone in Burrell's position making the call to Crown Equipment. It was submitted that the evidence demonstrated that a large number of employees of Crown Equipment who were given the task of working on the reception desk and answering the phone knew Burrell, and would have been likely to recognise his voice. It was further submitted that the fact that there was no intercept on the Crown Equipment line was unusual in the circumstances, and although it was known to investigative police officers, it was unlikely to have been confidently assumed by someone in the position of Burrell if he was the kidnapper.

Balanced against these obvious risks, the defence contended that there was no point in Burrell making the call. It was said to be incredible that anyone would think that directing Mr Whelan to call off the police would result in that occurring. It was submitted that there was no need for him to have the police off the property - there was nothing incriminating on the property he needed to attend to. The police had apparently finished searching his house, although they were still coming each morning to search the land. It was submitted that it was not persuasive to suggest that he needed the police to go to make contact with Mr Whelan. When there was, on the Crown case, no surveillance of Burrell between 16 and 21 May 1997 Burrell made no contact with Mr Whelan. It was contended that there was no rational basis for urgency by 23 May 1997, some two and a half weeks after Mrs Whelan's disappearance.

Because it was so implausible that the person actually responsible for Mrs Whelan's abduction made the call, it was submitted that the Crown had resorted to the idea of a panicked mistake caused by the pressure of the police, surveillance, media presence at Hillydale and adverse media publications. However on the Crown case, he had stopped being surveilled a week prior to the call. Importantly, the defence said, that there was not a single piece of evidence to suggest that by the 23 May 1997 there was a large contingent of the media camped just outside the front gate at Hillydale, and extensive media publicity about the police search and about him.

The evidence indicated that at the time the search of Hillydale started, at 9.30 am on Wednesday 21 May 1997, there had been little media attention other than in a general way in relation to the disappearance of Mrs Whelan. According to the evidence of Detective Superintendent Bray, later that day there was a press conference held by the police at which her disappearance was disclosed. General stories in relation to her disappearance featured on some of the evening radio and television news on 21 May 1997 and were more extensively published from 22 May 1997.

Burrell’s sister, Debbie Burrell gave evidence that on Thursday, 22 May 1997 at her son's football training she heard about the disappearance of Kerry Whelan on the news. She went to Hillydale on Saturday, 24 May 1997 - a trip organised a week or two before then. When she arrived at Hillydale on that day there were police present, but no media representatives, and she did not hear anything about the media until a police officer came to speak to her brother and advise of the arrival of media personnel. Then on the Sunday the phone started ringing with callers, said by Burrell to be the media, which he complained about. After she returned to Sydney on Monday, 26 May 1997, there were constant references to her brother in the press, whereas she had seen none before she left on the 24 May 1997 for Hillydale.

Mr Allan Burrell, Burrell’s father, had also heard general publicity about the disappearance of Kerry Whelan but the first he heard of anything that was in any way connected with his son was a radio announcement early on the Sunday morning while Debbie was away [that is, 25 May 1997] that the police were searching a property in Bungonia. The defence submission was that this evidence further undermined the Crown “panicked mistake” theory for the call, and additionally the reference in the call to the media was a mistake, not likely to be made by a person in Burrell's position (whereas it might have been made by a police officer not personally concerned about whether Burrell had been in the press, or alternatively prescient of the pending arrival to Hillydale of the media, which seemed to have eventuated on 24 May 1997).

The Appeal

Grounds One and Two

It is appropriate to consider these two grounds of appeal together.

Ground one in the appeal was expressed in the following terms:

(a) style='font:7.0pt "Times New Roman"'> His Honour erred in failing to direct the jury there were three indispensable intermediate facts (Shepherd v The Queen (1990) 170 CLR 573) which the jury would have to find beyond reasonable doubt before being able to convict Burrell being:

(i) style='font:7.0pt "Times New Roman"'> Kerry Whelan left the front of the Parkroyal Hotel by way of the Pajero 4WD seen in camera 7 at 9.38:45/46 on 6 May 1997;

(ii) style='font:7.0pt "Times New Roman"'> The terms of the two dot point notes have the meanings ascribed to them by the Crown theory; and

(iii) style='font:7.0pt "Times New Roman"'> The accused was in the phone booth outside the Empire Hotel in Goulburn at the time the subject call was made to Crown Equipment at 9.21 am on 23 May 1997;

Or in the alternative:

(b) style='font:7.0pt "Times New Roman"'> His Honour erred in failing to direct the jury there were three indispensable intermediate facts (as detailed in (a) above) at least one of which the jury would have to find beyond reasonable doubt before being able to convict Burrell if they were considering convicting upon one of the three independent bodies of evidence in isolation.

Ground 2 was expressed in the following terms:

His Honour erred in directing the jury that counsel for Burrell was incorrect at law when referring to the Crown case being left to the jury upon three major bodies of evidence and that counsel said the Crown case in this regard was that the jury could find Burrell guilty on the basis of any one, two or all three of those in combination.

Burrell submitted that the principle to be applied in the circumstances of this case was established in Chamberlain v The Queen (1983) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573 being that “whilst a jury may draw inferences from facts not proved beyond reasonable doubt, if a conclusion of fact is an indispensable intermediate step in the reasoning process, that conclusion must be established beyond reasonable doubt.” Particular reliance was placed on the observations of Deane J in Chamberlain at 627:

“Whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt will, however, otherwise depend not only on the nature of the fact but on the process by which an individual juryman sees fit to reach his conclusion on the ultimate question of guilt or innocence. If, for example, the case against an accused is contingent upon each of four matters being proved against him, it is obvious that each of those matters must be proved beyond reasonable doubt. Indeed, it would be appropriate for the presiding judge to emphasise to the jury in such a case that even a minimal doubt about the existence of each of those matters would be greatly magnified in the combination of all. On the other hand, if the guilt of an accused would be established by, or a particular inference against an accused could be drawn from, the existence of any one of two hundred different matters, each of which had been proved on the balance of probabilities, it would be absurd to require that a jury should disregard each of them unless satisfied either in isolation or in the context of all of the facts, that any particular one of these matters had been proved beyond reasonable doubt.”

During the trial three apparently disparate bodies of evidence pointing to the guilt of Burrell were identified. I have examined them above. They were the evidence relating to the sighting of Mrs Whelan and the Pajero 4WD resembling Burrell’s at the Parkroyal Hotel on 6 May 1997; the evidence with respect to the two “dot point” notes and the phone call allegedly made by Burrell from a public phone booth outside the Empire Hotel in Goulburn on 23 May 1997.

It was debated during the trial whether, if proved beyond reasonable doubt, proof of any one or of a combination of these factual matters would be sufficient to convict Burrell. The defence case was that the three matters were indispensable intermediate facts which the jury would have to find beyond reasonable doubt before being able to convict Burrell. In the alternative it was submitted that, at the least, before Burrell could be convicted the jury would have to be satisfied beyond reasonable doubt of the events relating to the Pajero at the Parkroyal Hotel.

The position was arguably complicated by the way in which the Crown put the prosecution case to the jury. In the course of his closing address the prosecutor identified the fact that the jury had been provided with “three completely independent bodies of evidence.” He said to the jury:

“If you are satisfied in relation to the Pajero evidence; namely, that it was the accused’s Pajero outside the Parkroyal Hotel, that is the end of the matter. You would have to convict him, because there is no other explanation for his vehicle outside the Parkroyal Hotel. Finished.

If you are satisfied beyond reasonable doubt that those dot-point notes contained his early thoughts about a kidnapping and a ransom note, that’s the end of it. You would have to convict him. There is no other explanation for why he would have written such notes.

If you are satisfied beyond reasonable doubt that he made that call to Crown Equipment from outside the Empire Hotel on 23 May, that’s the end of it: you would have to convict him, because there is no other possible explanation other than that he was the kidnapper.

Now, you can look at those three bodies of evidence independently but you can also look at them all together and you can say to yourself: What an amazing body of evidence – three completely independent bodies of evidence that don’t depend on each other, each of which inevitably and irrevocably points to the involvement of the accused in the kidnapping and death of Kerry Whelan. So, we submit to you that this is a classic example of a very strong circumstantial case.”

However, when summing-up the trial judge was concerned to point out to the jury that their task was not confined in the manner in which they may have understood it to be from the Crown’s submission. Although he left open the possibility that they could be satisfied “on the evidence of the events at Parramatta on 6 May that the accused was the kidnapper” his Honour emphasised that they were required to consider the whole of the evidence. The relevant portion of his Honour’s summing-up was as follows:

“Mr Dalton says to you that you cannot be satisfied beyond reasonable doubt that Mrs Whelan was abducted by the accused. I have told you the things you have to be satisfied about beyond reasonable doubt and that is one of them. You must be satisfied that the accused abducted, detained Mrs Whelan.

It is possible that you may find yourselves satisfied beyond reasonable doubt that she was detained in precisely the same way as is submitted to you by the Crown, that is to say, that the accused drove her away at 9.38 and some seconds travelling eastwards and that within some time shortly after that she was detained because she became an unwilling passenger.

It is not, however, necessary for you to be satisfied beyond reasonable doubt that that is precisely how the accused went about the detention. What you must be satisfied about beyond reasonable doubt is that, by some manner and means, and certainly by, say, a quarter to four on the same afternoon, 6 May, the accused detained Mrs Whelan. I say a quarter to four because that is about the time Mrs Whelan was due to arrive at her husband’s office at Smithfield for the journey to the airport and to Adelaide, and clearly, if she was kidnapped, she had been kidnapped by then.

Both counsel have said things to you in their closing addresses that may possibly lead to a misunderstanding of the law. I have told you that you are to judge this case on the evidence, and that means all the evidence.

The Crown submitted to you that you could be satisfied beyond reasonable doubt, on the evidence of the events at Parramatta on 6 May that the accused was the kidnapper. Whether you can be satisfied beyond reasonable doubt about that conclusion on that evidence alone, I do not know, and I express no view about it.

The point I wish to make now is that what the Crown said to you may have given you the impression that you can properly find the accused guilty only if this evidence, standing by itself, is sufficient to prove beyond reasonable doubt that the accused was the kidnapper.

That is not the law. You are not restricted to any piece or body of evidence, when deciding whether the Crown has proved the guilt of the accused, whether the Crown has proved any essential element on either of the charges. You should judge the case on all the evidence.

In the same way, Mr Dalton said to you that he understood that I would be directing you that you were not restricted to a consideration of the Parramatta evidence in deciding whether the Crown had proved the guilt of the accused and he went on to refer to two other bodies of evidence; namely, the evidence of the telephone call of 23 May and the evidence of the dot-point notes found at the accused’s house.

Last Wednesday Mr Dalton said this at page 2328, line 33-

‘Apparently the trial will be left to you on the basis that, even if you cannot be satisfied, which in our submission you clearly cannot be, that Mrs Whelan had left by way of that Pajero outside the Parkroyal Hotel, you could still rely upon other material in the nature of the dot-point notes and/or the phone call.’

Later on he said this at page 2361, line 21-

‘Still, as I understand, the matter would be left to you, even if he was not at Parramatta, even if it was not his vehicle and it was not there at Parramatta on the morning of 6 May at 9.38, we can still convict on other evidence and that other evidence will be the dot-point notes on the one hand, and/or the telephone call on 23 May.’

Last Friday Mr Dalton – and I think this Monday – made a number of references saying that the Crown relied on ‘those three flawed bricks,’ referring to the Parramatta evidence, the telephone evidence and the dot-point note evidence.

They were not correct statements of the law. You are not restricted, in deciding whether the Crown has proved its case on kidnapping or murder, to evidence of events at Parramatta or the dot-point notes with or without the ransom note, or of the telephone call to Crown Equipment, or to any two of those bodies of evidence, or even to all three. In coming to your decision on any element of the charge, you are to take into account every piece of evidence in the case that, in your view, is capable of bearing upon your decision.

You already know that when you are assessing the evidence of any witness you are not required to consider the evidence of that witness in isolation. You judge it by reference to all the relevant evidence in the case. The same principle applies here and you will understand, I am sure, that there are several other pieces of evidence upon which the Crown relies, other than the three pieces of evidence to which I have referred. There is the telephone call on 7 April. There is the visit on 16 April. There is the existence of the street directory found in the Jaguar at the accused’s house. I will come to that one shortly.”

Burrell complained to this Court that his Honour did not direct the jury that, if they were contemplating convicting Burrell having regard to any one of the three independent bodies of evidence, a finding beyond reasonable doubt with respect to that area of evidence was required.

Intermediate Facts

I have already detailed the factual elements of the Crown case and will not repeat them in detail. However, it will be apparent that it extended beyond the three bodies of evidence which have been identified. The evidence commenced with the phone call Burrell made to Mr Whelan on 7 April 1997 and for which there was no apparent explanation. It was followed by the visit to the Kurrajong property which was itself curious. Burrell’s retreat from Kurrajong to North Richmond to make a phone call from a public phone, rather than use his mobile phone (which he untruthfully denied having on that day) was capable of a sinister interpretation, although this was denied by the defence who said it was explained by poor mobile reception in the location.

There were a number of events for which there was no explanation. In particular the comment of Mrs Whelan “why did he do this to me?” overhead by Ms Minton-Taylor after Burrell left on 16 April 1997 is unexplained. Her diary entry for 6 May 1997 showing an appointment at 9.30 am without an identified purpose and her incorrect explanation to her husband that she was going for a consultation about a skin condition contribute to a matrix of events which were unexplained.

Beyond the three bodies of evidence, there was also the evidence of motive provided by Burrell’s desire for money and his increasingly, apparently irrational, pursuit of it. The form of the ransom demand (apart from the evidence of the dot point notes) point significantly towards the kidnapper as having in mind to abduct Mrs Whelan on an occasion prior to 6 May 1997. That fact together with the evidence of the unusual circumstances of the visit to the Kurrajong property on 16 April 1997 point strongly towards Burrell having decided to kidnap Mrs Whelan on that day. That conclusion is supported by the evidence that Burrell had obtained information about Mr Whelan’s movements during the conversation with him on 7 April 1997, making it likely that Mrs Whelan would be at home alone on 16 April 1997.

The video evidence relating to the Pajero and Mrs Whelan’s movements would not persuade me beyond reasonable doubt of Burrell’s guilt. Nevertheless it makes a significant contribution to the overall matrix. Whether the Pajero, which can be seen in the earlier video, was Burrell’s, there is no doubt that Mrs Whelan arrived at the Parkroyal Hotel at 9.35 am, parked her car in the car park and left by the car park entry ramp. I have already indicated that the suggestion of the defence that on leaving the ramp she turned left was entirely contrary to her identifiable path which took her up the right hand ramp close to the right hand kerb. She gave no indication that she intended to turn left and would be likely to have already moved in that direction if that had been her intention. She either crossed Phillip Street or turned right when leaving the car park. If she did the latter she would have walked towards where, on the video evidence, Burrell’s Pajero could have been parked. At a time which was consistent with her having entered Burrell’s vehicle a Pajero, which could be Burrell’s, was recorded as moving past the hotel.

There was further circumstantial evidence. When the police searched Burrell’s property, he was found to possess an almost empty bottle of chloroform which could have been used to subdue Mrs Whelan. Although explained as being acquired for a cleaning task, to my mind this account is not convincing. Burrell’s former wife was not aware of chloroform having been acquired for any purpose, much less for cleaning.

Indispensable Intermediate Facts

In Chamberlain the High Court considered, inter alia, the correct approach to findings of fact in a circumstantial case – do they have to be proved beyond reasonable doubt? The remarks of Gibbs CJ and Mason J on that matter have been recognised as being unclear. However, in Shepherd Mason CJ made plain that only an intermediate fact, which is an essential or indispensable step toward a finding of guilt, required proof beyond reasonable doubt (p 576).

The position was authoritatively stated by Dawson J in the following passage (Shepherd pp 579-580) :

“As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact -- every piece of evidence -- relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.

In Chamberlain Gibbs CJ and Mason J (1983) 153 CLR 521 at 535 accept that evidence may have a cumulative effect and point out that it is the duty of the jury to consider all the facts together at the conclusion of the case. They say:

‘At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness `separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence.’

Gibbs CJ and Mason J apply the same principle to circumstantial evidence, saying that "in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it". They continue at 536:

‘It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.’”

Resolution of grounds 1 and 2

In the present case there was, as I have demonstrated, a body of evidence from which the jury could conclude that Burrell abducted and killed Mrs Whelan. No one piece of evidence, or, even a discrete body of evidence, required acceptance before the jury could reach that conclusion. The jury did not have to be satisfied that Mrs Whelan was abducted in accordance with the Crown’s view of the events on 6 May 1997. It could have occurred in some other manner later that day. Nor would they have to be satisfied beyond reasonable doubt that the “dot point” notes were Burrell’s notes made in preparation for a ransom letter or that Burrell made the phone call on 23 May 1997. All that was required, as his Honour told the jury, was that having regard to the whole of the evidence they were satisfied of his guilt to the relevant standard.

The trial judge concluded that it was necessary for the jury to be satisfied that Mrs Whelan had been abducted before 3.45 pm when she was due to meet her husband. This, of course, followed from a finding that her abduction explained her failure to meet Mr Whelan as they had previously arranged. However, the time of the abduction was not otherwise essential to the proof of the Crown case. As I have indicated, to my mind it was not an essential element of the Crown case that Burrell left the Parkroyal Hotel with Mrs Whelan on the morning of 6 May 1997. If the jury found that this occurred it would have significantly fortified the Crown case but, it was not an essential intermediate fact which required proof beyond reasonable doubt. If she had been kidnapped at some other time and from some other place that day the combination of other incriminating circumstances was such that the jury could have been satisfied of Burrell’s guilt to the requisite standard.

With respect to ground 2 there is, in my opinion, no substance in that ground. Although as I have identified the Crown submitted that there were three bodies of evidence of significant probative force, the Crown case was not confined to that evidence and the prosecutor addressed the jury with respect to the whole of the relevant evidence. His Honour’s directions, in my view correctly, reminded the jury that they were not restricted to any piece or body of evidence and could take into account every piece of evidence capable of bearing upon their decision.

I would reject grounds 1 and 2 of the appeal.

Ground 3: His Honour erred in directing the jury that any finding the jury might make that the police investigation was inadequate was not capable of weakening the Crown case.

Ground 4: His Honour erred in failing to direct the jury that one reasonable hypothesis consistent with innocence raised for their consideration upon the evidence was that Kerry Whelan’s disappearance was effected by a person or persons unknown.

Ground 5: His Honour erred in restricting cross-examination upon the police running sheets and other police documents.

Ground 6: His Honour erred in not permitting the contents of those running sheets he did allow to be relied upon for the purpose of cross-examination to be available for the truth of their contents.

These grounds were dealt with together by counsel for Burrell. It is convenient for me to make some general comments before turning to each ground specifically. At the heart of these four grounds of appeal is the contention that the police investigation that led to the arrest and prosecution of Burrell was inadequate, and as a result of this inadequacy there are reasonable hypotheses consistent with innocence that have not been excluded. In particular, it was argued that the Crown has not excluded the reasonable possibility that the disappearance of Mrs Whelan was effected by Mr Whelan or a person or persons unknown. It was also argued that the police investigation was biased and that this bias makes it more likely that the phone call made to Crown Equipment from outside the Empire Hotel on 23 May 1997 was in fact made by a police officer. It was contended that Barr J made a number of errors in relation to these issues.

The Crown case was entirely circumstantial. In Barca v The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ said of such a case:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused:’ Peacock v The King [(1911) 13 CLR 619 at 634]. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw;’ Plomp v The Queen [(1963) 110 CLR 234 at 252]; see also Thomas v The Queen [(1960) 102 CLR 584 at 605-606]. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’ (Peacock v The King [(1911) 13 CLR 619 at 661]). These principles are well settled in Australia.”

In De Gruchy (2000) 110 A Crim R 271, the appellant was convicted of murdering his mother, brother and sister. Two years after the offence there were two violent murders in the same general locality. A man, Van Krevel, had confessed to these two latter crimes. At his trial the appellant had sought to subpoena police documents and to cross-examine police witnesses in relation to the investigations into the Van Krevel murders, as well as in relation to murders in the Wollongong area generally. The contention was that this evidence would give rise to a reasonable possibility that someone other than the appellant had murdered his mother, brother and sister. At 281-282 Wood CJ at CL (Sully J and Simpson J agreeing) said:

“In the present instance the documents sought, and the line of cross-examination involved in my view, nothing more than a fishing expedition. The Arkell and O’Hearn murders occurred in June 1998, more than two years after the killings with which the appellant was charged, and his Honour, after examining the documents, saw no common modus operandi or anything in the way of physical evidence or otherwise that might link Van Krevel with the events at the De Gruchy home. Moreover, there had been no admissions by him concerning those events, whereas he had come forward to confess in relation to the Arkell and O’Hearn killings…

…[I]n my view, [the trial judge] was correct in excluding the proposed cross-examination both in relation to the Arkell and O’Hearn murders, and in relation to any other killings that may have occurred in the greater Wollongong or Illawarra districts. In this latter regard, counsel did not identify any particular killings, solved or unsolved, that bore any similarity or possible connection. It would have been pure speculation to float before the jury the circumstance that since other killings had occurred, so might the present killings have been the work of one or other of those responsible for them – absent that is, some identified connection.

Again, Barca is distinguishable since there was there strong circumstantial evidence pointing to a party other than the accused as having been responsible for the killing in the form of evidence going to the existence of a motive on his part, threats by him directed towards the victim and a witness, the existence of intense anger upon his part towards the victim, the fact of his involvement in another killing having a marked similarity to the case before the court, and the existence of a custom for persons of his ethnic background to carry out the very kind of offence charged in circumstances where, as it was there alleged, the honour of his daughter had been besmirched.

Since the matters raised did not go beyond mere conjecture as to the existence of an alternative hypothesis, I am not persuaded that his Honour erred in the approach taken, or that the appellant was deprived of an opportunity for acquittal by the exclusion of a possible body of evidence going to the O’Hearn or Arkell murders, or of any other murders that may have happened to have been committed in the general district, over an undefined period, before or after the present killings.”

Both Barca and De Gruchy clearly state that a hypothesis consistent with innocence must be more than mere speculation or conjecture before it can be seen as a reasonable hypothesis. This does not mean that the accused must prove it, but only that it should have some reasonable basis in the evidence before the jury. Hulme J (Sully J and Hidden J agreeing) considered this issue in McIntyre (2000) 111 A Crim R 211 at 220-221:

“It is, of course, both proper and common for a judge in the course of a summing up to tell a jury that they must not speculate or guess, operations of the mind quite different from the drawing of inferences. However, as his Honour pointed out to the jury, this was a circumstantial evidence case. The appellant was entitled to be acquitted if the Crown could not exclude all reasonable hypotheses consistent with innocence.

Such hypotheses must, as I have said, be reasonable. But a jury does not have to be able to infer that an event, the subject of such an hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event. A couple of examples demonstrate this point.

A rape is committed at night in the victim’s home. The Crown presents a case based on circumstantial evidence that the offender was A. There is clear evidence that the windows of the victim’s home were open and other persons were around and acting suspiciously. A would be entitled to be acquitted as there would be a reasonable possibility that someone else was the offender.

A fire commences on a wooden bench on which the owner was, earlier in the day, ironing. He says he thinks he turned the iron off. Clearly, there remains a reasonable possibility that he did not. A suspect against whom the Crown presented a circumstantial evidence case as to his involvement would be entitled to be acquitted. Although the circumstances might not justify an inference that the fire did start accidentally from the iron, those circumstances raised that cause as a reasonable possibility.

It would, of course be a matter of speculation, whether in fact that rape had been committed by someone else; or the fire had occurred accidentally due to a failure to turn the iron off; but there is no speculation involved in considering whether these are reasonable possibilities.”

Their Honours were not saying that the jury is entitled to speculate about matters not in evidence. Rather the law is that a jury may infer that an alternative hypothesis consistent with innocence is reasonably possible, even though that hypothesis has not been established as a fact. This inference, however, must be reasonably open on the facts. It cannot be based on mere speculation or conjecture that has no basis in the evidence. As Whealy J noted in R v King [2000] NSWCCA 507 at [65] “…a possibility based on the unknown nature of non-existent evidence would have been quite irrelevant to the strength or weakness of the circumstantial case, and capable of leading to an unfair assessment of the Crown case.”

Ground 3

In his summing up, Barr J directed the jury that:

“I do not know whether you accept the submission that the police investigation was inadequate. If you do, your common sense will tell you that, unfortunate though it might be, the result is that you might have less evidence than you might otherwise have had. There is no way of ascertaining whether any further evidence might have emerged if police had made further inquiry and whether, if it had, it might have favoured one side or the other in this case.

So, to the extent that you think the police ought to have made further inquiries you must not speculate upon what the result of those inquiries might have been. You cannot conclude that a failure to inquire has weakened the Crown case, because to do so you have to start with the proposition that any further inquiry would have made the Crown case stronger. This is something you simply do not know. You are in this simple practical position: However we have got there, this is where we are. This is the evidence. You must judge the case on this evidence. Even if the police have been remiss, you have only this evidence and you must, as I told you right at the beginning of this case, judge this case on the evidence that is put before you, not on this evidence plus some speculative material you might think further inquiries might have produced. You must not do that. You must not speculate.

If you do conclude that the police investigation was in any way inadequate, it does not weaken the Crown case or strengthen the defence case or vice versa, because you start and finish with the evidence that is available in this case.

I cannot hope to repeat to you the numerous examples included in Mr Dalton’s closing address and reports recorded in the running sheets and in the discretion of the police officers, not followed up or not followed up very far. You should of course consider whether any of them merited further investigation…”

Counsel for the accused objected to this part of the summing up. He argued that his Honour should have directed the jury that an absence of evidence regarding any alternative hypotheses could not be “used to advance the Crown case.” His Honour declined to make the direction. The submission at trial is very different to the ground of appeal presently under consideration. The proposition that an absence of evidence does not advance the Crown case is very different to the contention that an inadequate police investigation is capable of weakening the Crown case.

The comments of Callinan J (McHugh J, Gummow J, Kirby J and Hayne J agreeing) in Penney v The Queen (1998) 155 ALR 605 are relevant to this ground. At 609-610 his Honour said:

“It was put that there was, in effect, a trial process which began at the inception of the investigation leading to the bringing of a charge and that a defective police investigation had so infected that trial process that the trial was not a fair trial.

There is no doubt that the police investigation was unsatisfactory in some respects. However, these defects were fully exposed to the jury in cross-examination and the address to the jury by the appellant’s counsel. There was some reinforcement of the criticism of these defects by the accurate summary of the defence submissions to the jury by the trial judge.

The appellant’s submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case.”

As Callinan J makes plain an accused may not be able to legitimately complain about the quality of an investigation . Where the evidence against an accused is strong, the fact that it may have resulted from an incomplete investigation may not affect the strength of the Crown case.

Burrell submitted that the quality of the police investigation has particular significance in a circumstantial case. It was submitted that when the Crown can only succeed by excluding all reasonable hypotheses consistent with innocence, an inadequate police investigation weakens the Crown case because, without further or proper investigations into any available alternative hypotheses, the Crown cannot exclude them as reasonable possibilities.

The argument confuses the role of investigating police and the task of the jury. The question for the jury is whether the whole of the evidence at trial proves to their satisfaction and beyond reasonable doubt that the accused committed the crime. The jury must not speculate as to any matter which a more thorough police investigation might have revealed. Evidence of an inadequate police investigation is not in itself evidence of a reasonable possibility consistent with innocence. Such evidence does not itself weaken the Crown case. This is the essence of what Sully J told the jury in the direction that was the subject of the appeal in R v Galea [2004] NSWCCA 227. This Court did not disapprove of that direction, and for similar reasons I conclude that Barr J made no error by giving the direction that he gave in the instant case. In giving that direction, Barr J correctly and carefully told the jury that they could consider whether any alternative hypotheses “merited further investigation.” The correct approach was stated by Gibbs, Stephen and Mason JJ in Barca v The Queen (1975) 133 CLR 82 at 105:

“However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted.”

Burrell submitted that “if a jury is restricted to consider only enquiries that the police considered appropriate then in the absence of an admission by the police that they had made an error, a jury will be confined in effect to the opinions of the police.” The short answer to this is that the jury is asked to consider the evidence.

Evidence of any inadequacy in a police investigation may be of greater significance if it has a direct bearing upon the cogency of the evidence that is before the court, such as where the evidence impugns the credibility of police witnesses or reveals that proper procedures were not followed when an eyewitness positively identified a suspect. In the present case it was contended that the police investigation was biased, and that this weakened the Crown case because it made it more likely that the phone call made to Crown Equipment from outside the Empire Hotel on 23 May 1997 was made by a police officer, rather than Burrell. Even if there was substance to the submission, and in my view the evidence does not support it, it does not follow that his Honour erred in his summing up. His Honour was careful to draw a distinction between the adequacy of the police investigation and its propriety. After giving the directions set out above about the relevance of the adequacy or otherwise of the police investigation, his Honour continued:

“It is for you to decide whether the police investigation stopped short of a proper investigation, whether you think the police closed their minds too early.

If you do conclude that the police made up their minds too soon, how should you – how can you use your conclusions?

Well it might lend weight, if you think it has any – if you come to that view then you give it weight and you ask yourselves whether it lends weight to the defence submissions I have already reminded you about, about whether the police gave this case a help along.”

Earlier his Honour had told the jury that police officers “have been known” to give cases “a little helping hand,” and drew attention to dishonest and illegal conduct by police officers that had been established by the evidence in the instant case. His Honour then said “so the defence points to these things and says, ‘well, it’s not such a fantastic thing, that a police officer might try and give the case a help along,’ and you should not be satisfied that the accused made the telephone call.” In my opinion there was no error in his Honour’s directions on this issue. This ground of appeal fails.

Ground 4

The Crown conceded that Barr J did not specifically direct the jury that one reasonable hypothesis consistent with innocence based upon the evidence was that Kerry Whelan’s disappearance was effected by a person or persons unknown. However, no such direction was sought at either the first or second trial. Accordingly, leave is required pursuant to r 4 of the Criminal Appeal Rules.

In Domican v The Queen (1991) 173 CLR 555 at 560, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:

“A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence [R v Ali Ali (1981) 6 A Crim R 161 at 164], and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice.”

In this case Barr J had correctly directed the jury in relation to the law on this issue. His Honour said:

“It is however, important for you to understand, when you reason from circumstantial evidence to a conclusion that an essential element in the Crown case has been established, or to a conclusion that the accused is guilty of the offence charged, that such inference or conclusion must be one of which you are satisfied beyond reasonable doubt.

If an alternative inference remains reasonably open, the Crown has not made good the element or the guilt of the accused which it wishes to prove by reference to that circumstantial evidence.”

In these circumstances, it would have been plain to the jury that if they thought that it was reasonably possible that someone other than the named persons who his Honour had mentioned in his summing up was responsible for the offences alleged against the accused, then the Crown had not made out its case.

I do not accept Burrell’s submission that the Crown’s failure to make inquiries or adduce evidence directed towards excluding the possibility that an international organisation was responsible for the crime constituted a reversal of the onus of proof. Neither the Crown nor Burrell were required to adduce evidence in relation to this issue. The jury was entitled to find on the evidence available to it that this was not a reasonable alternative hypothesis.

Given that the possibility that the offence had been carried out by a person or persons unknown had been given such little attention by the defence, and given that defence counsel did not object to the omission of this scenario in the summing up, I am satisfied that it was not an issue at the trial. I would refuse leave under r 4.

Grounds 5 and 6

It is convenient to deal with these grounds together. They concern a number of different police “running sheets.” The submissions in some respects were beyond the grounds as stated.

I will deal first with the “running sheets” concerning June Parkinson and Maureen Shaw. Burrell submitted that the information contained in these “running sheets” was relevant and admissible. The evidence of June Parkinson was summarised by Barr J as follows (R v Burrell (unreported, NSWSC, 23 March 2006) at [3]):

“Broadly, the evidence would be of assertions by Mrs Parkinson of events that took place in 1982 or 1983 when she was employed by Bernard Whelan to assist Mrs Kerry Whelan at about the time of the birth of their first child and during which she, Mrs Parkinson, befriends the former wife of Mr Whelan, Mrs Helen Whelan. It appears that Mrs Helen Whelan was ill, alcoholic, and in need of medical treatment and domestic help. She was living in premises other than the premises in which Mr Bernard Whelan and Mrs Kerry Whelan were living. It appears that Mrs Parkinson, having befriended Mrs Helen Whelan, took her side in negotiations that were going on between the former married partners in an effort to reach a family settlement. It fairly appears from the statements that Mrs Parkinson is a very much disaffected former employee of Mr Whelan and ready to make serious criticisms of Mr Whelan, Mrs Kerry Whelan, and others without asserting any or much factual basis for her opinion.”

Mrs Parkinson also alleged that Kerry Whelan had told her that she was insured by Crown Equipment for one million dollars. The “running sheets” containing the assertions set out above were excluded by the trial judge under s 135 of the Evidence Act (R v Burrell (unreported, NSWSC, 23 March 2006)). An attempt to tender a statement from Mrs Parkinson on the basis that she was unavailable for the purposes of s 65 of the Evidence Act was refused by his Honour because of Burrell’s failure to comply with the notice requirements in s 67 (R v Burrell (unreported, NSWCCA, 11 May 2006).

The evidence of Mrs Shaw related to events that happened in Victoria when she was Mr Whelan’s secretary, thirty years before Mrs Whelan’s disappearance. The gist of the evidence was that Mr Whelan had criminal contacts and that he had offered to arrange for one of these contacts to deal violently with Mrs Shaw’s ex-husband. Mrs Shaw said that Mr Whelan’s father had been a policeman and that he was the contact between Mr Whelan and the criminal underworld. Mr Whelan’s father had never in fact been a police officer. Mrs Shaw indicated that she would not give this evidence in court. His Honour was of the view that it would be unfair to the Crown to admit the evidence.

Burrell submitted that the “running sheets” were admissible for two reasons: firstly, to show that the police investigation was inadequate because it did not pursue the possibility that Mr Whelan or his criminal contacts had been involved in Mrs Whelan’s disappearance; and, secondly, as proof of the contents of the “running sheets”, which Burrell argues raised a reasonable possibility consistent with Burrell’s innocence.

Burrell relied on R v Cakovski (2004) 149 A Crim R 21. In that case the appellant was convicted of murder. At his trial he had raised self-defence, alleging that the deceased had threatened to kill him. The deceased had been convicted of murdering three people in 1978. The appellant was not aware of this at the time. The trial judge refused to admit evidence of the murders because the events in question were too remote in time to have significant probative value (s 135). The trial judge also restricted the cross-examination of Mr Logounov, so that the defence could not seek to elicit the fact that the deceased had referred to the three earlier homicides when a few hours prior to his death he had assaulted and threatened to kill Mr Logounov. The conviction was overturned on appeal. It was held (at 30) that the evidence

“…had significant probative value, in this way. In the absence of that evidence, the appellant’s evidence that the deceased threatened to kill him in such a way as to make him fearful for his life, and continued to make such threats and to attack him notwithstanding the appellant’s use of a knife, seems on the face of it highly improbable. In my opinion, it becomes less so once one knows that the deceased had committed three murders in the circumstances outlined, albeit as long ago as 1978, and also had made reference to those three murders in uttering a threat to kill Mr Logounov just a few hours before.”

A majority of the Court were of the view that the evidence was only admissible for this reason. It probably would not have been admissible as tendency evidence (Hodgson JA at 30-31; Hulme J at 35).

Barr J distinguished Cakovski on the basis that it was not in dispute that the deceased in that case had been convicted of murder. In dealing with Cakovski in the context of Mrs Parkinson’s evidence, Barr J said (R v Burrell (unreported, NSWSC, 23 March 2006) at [7]-[8]:

“The facts of that case were different from the present, of course, but Mr Dalton sought to draw comfort from the decision which was to the effect that a trial judge had erred in rejecting evidence of the deceased’s conviction, some 23 years before the events giving rise to the charge, of three counts of murder. In that case, the defence was one of self-defence and the appellant relied, in part, upon an asserted threat by the deceased that he would kill him, the appellant. The fact that the deceased had killed three times before, even though so long ago, was held to be relevant to the probability that the deceased made the threat to kill, asserted and relied upon by the appellant.

One can understand the importance of the topic, even so old, in a case like that. The case does not assist this accused, however. Although the matter asserted by Mrs Parkinson is not so old – 16 as opposed to 23 years – to admit the evidence now would raise serious problems of proof and testing. The asserted facts could by no means readily be accepted as they were in Cakovski. Sixteen years is still a long time.

I have not changed my opinion. I think that the probative value of the evidence, if it has any, is slight. I think the potential to prejudice the other side unfairly is great, for the reasons I have given. The objection is upheld. The evidence is excluded.”

In relation to Mrs Shaw’s evidence, his Honour said in the first trial that it would be unfair to require the Crown to respond to assertions about events that allegedly occurred in Victoria in 1967, and that “even if the topic was able to be raised, any evidence likely to come forward would be, in view of the time which has elapsed, of the most tenuous kind. I think that it would have no probative value.” I agree with Barr J’s assessment of the evidence. It was within his Honour’s discretion to admit or reject it and Burrell has not demonstrated any error in the exercise of that discretion. The evidence was apparently hearsay, was stale and had very little probative value.

In my view, it could not have been admitted under s 97 as tendency evidence. In this regard Hulme J’s observation in Cakovski (at 35) that “so removed in time were they [i.e. the murders and the instant offence] that I very much doubt if it would even have been possible to infer from events in 1978 what tendency the deceased may have had in 2001” is apposite. Having regard to the significant danger that the evidence would result in unfair prejudice to the Crown, even if it was admissible as tendency evidence, it ought to have been excluded under s 135. Given the length of time between the events alleged in the running sheets and the offences with which Burrell was charged, the evidence would not have been relevant to the adequacy of the police investigation. The fact that the police had gathered this information at all indicates that their investigations had taken them a considerable distance into Mr Whelan’s past. The fact that they did not pursue the assertions was of no probative value.

The only other relevance that the evidence of Mrs Parkinson could have had was to establish that, contrary to Mr Whelan’s evidence, he was in fact aware that Mrs Whelan was insured for one million dollars by Crown Equipment. Given that this evidence was second or third-hand hearsay, and in light of Barr J’s assessment of Mrs Parkinson as “a very much disaffected former employee of Mr Whelan and ready to make serious criticisms of Mr Whelan, Mrs Kerry Whelan, and others without asserting any or much factual basis for her opinion,” his Honour was bound to reject the “running sheet” as proof of the truth of her assertions.

The other “running sheets” can be dealt with shortly. In his summing up Barr J said:

“There was an enormous amount of cross-examination of Detective Superintendent Bray about the police investigation. I cannot begin to detail the various reports recorded in the running sheet that were raised for his consideration. I will give you no more than an example or two.

A man supposedly ringing from possibly Birrong railway station to say that Mrs Whelan was well; a man saying that he was a Limousine driver who claimed to have picked up a man called Russell Goward, together with Mrs Whelan, to drive them to Strathfield. It is a very long list. These records were made as reports were received from members of the public. There has been some mention of the number of lever arch folders there were, and I have forgotten the number now – 23 or something like that – an enormous number of running sheets. Sometimes the persons making the reports identified themselves; sometimes they did not, either because they did not give their name or gave false particulars. For the most part, Mr Dalton’s questions about these reports have been designed to bring out evidence about how much the police knew from time to time and the way in which they went about their investigation.…

There are two things I must say to you about this evidence. The first is that when you have evidence of a report made from a person who has not given evidence before you in the case, you cannot use that report as possibly proving the truth of the assertion made. Let me take these examples.

This man who gave a false name and said that he had driven Mr Goward and Mrs Whelan from a florist shop near the Parkroyal Hotel on 6 May and taken them to Strathfield. There is no evidence that any such thing happened. You could not find that such a thing happened. That is not the purpose for which the evidence has been put before you.

Secondly, the man possibly from Birrong railway station, who refused to name himself, but said that Mrs Whelan was alive and well. That is not evidence that Mrs Whelan was alive and well at the time of the telephone call. You could not make such a finding on that evidence. This and other evidence of its kind has been tendered only to prove the state of police intelligence from time to time so that you can judge the question whether they have already closed their minds, as has been submitted to you.

The position is different when a report is made by a person who has, since making the report, given evidence before you. So, for example, statements are attributed to, in the various reports, to Mr Bernard Whelan, Mr Karl Bonnette, Mr Trevor Whelan, and there were others too – I think Mrs Woods was one and there are others – people who have come and given evidence before you and have been asked about the things that they reported to the police that were all of course dutifully recorded in running sheets.

If a witness has given evidence before you and you also have evidence of an earlier statement made out of court by that same witness, whether made in writing or in a formal statement, or recorded in a less formal way, as in a running sheet, you can use that statement as possibly proving the truth of what the witness said on the earlier occasion. But, for the most part, the entries in these running sheets are not reports of people who have given evidence in this case and you cannot use them as possibly proving the truth of what a person is reported to have said.”

This was an entirely appropriate way to deal with the “running sheets”. The assertions within them, insofar as they were not tested in court, could not have risen above pure speculation in the sense described in Barca and De Gruchy. It was also appropriate for his Honour to limit the cross-examination of police officers in relation to the running sheets in the way that he did. Burrell’s submission that the running sheets were equivalent to the “clear evidence” of the presence of another person or persons outside the “window” in Hulme J’s example in McIntyre cannot be accepted. The assertions contained in the running sheets were not “clear evidence” of the assertions contained within them. Barr J was right to say (R v Burrell (unreported, NSWSC, 3 May 2006) at [6]-[7]):

“Mr Dalton submits that, contrary to the decision I made at the first trial, I should allow the jury to regard statements of fact recorded in police running sheets as available to prove the truth of that which was reported. Reference was made to the decision of Hulme J in R v McIntyre [2000] NSWCCA 6 at paragraphs 31 and 32. It seems to me that all his Honour was saying in the passage of the judgment which contains those paragraphs was that, in considering whether there was a reasonable hypothesis consistent with the innocence of Burrell, the jury might draw inferences from proved facts. I do not think anything his Honour said touches upon the quality of the statements found in the running sheets likely to be canvassed in the cross-examination of Detective Superintendent Bray.

I have already given my reasons why those assertions of fact ought not to be available to prove the truth of what was reported. Nothing that has been put to me today has changed my view about that.”

Grounds 5 and 6 fail.

Ground 7: His Honour erred in admitting into evidence:

(a) the evidence of Peter Sean Buckley; and

(b) voice “similarity” evidence given by Mrs Pemberton

Barr J ruled in relation to the admissibility of the evidence the subject of this ground of appeal during the first trial (R v Burrell (unreported, NSWSC, 21 September 2005)). At the beginning of that judgment his Honour indicated the course he proposed to take, having regard not only to the earlier trial before his Honour and a jury but, also, previous hearings before Sully J and Wood CJ at CL.

“This is the third time this trial has been listed for hearing. In 2001 it was due to begin before Sully J and in 2003 before Wood CJ at CL. For the most part the evidence I have been asked to consider was considered by their Honours and for the most part the arguments for and against the admission of the evidence were considered by their Honours. Of course, the responsibility of making these decisions as trial Judge had become mine alone, and no decision or opinion of either of their Honours could have bound me. Even so, I have found their Honours’ descriptions of the evidence, their summaries of the arguments and their exposition of the legal principles to be applied of the greatest assistance to me in understanding those matters, as well as in understanding the arguments counsel put before me.

This trial has already been too long delayed and must proceed with all reasonable speed. This judgment needs to be as concise as possible. Accordingly, I propose to incorporate their Honours’ descriptions and reasons by reference where appropriate, and where I decide to admit or to reject evidence for reasons substantially the same as those already expressed I intend to say so.”

Ground 7(a): The evidence of Peter Sean Buckley

The Crown summarised the evidence given by Mr Buckley in the second trial in the following terms:

“(a) Mr Buckley first met Burrell in late June 1995, while he was working for Ultra Tune, and while Burrell was working with Peter Grace, whose firm acted as the advertising agent for Ultra Tune.

(b) Burrell asked Mr Buckley in late 1996 for a letter advising, untruthfully, that he was on the payroll of Ultra Tune, and was receiving a salary of $80,000 per annum, which he could then use in order to obtain a bank loan, a request with which Mr Buckley did not comply with.

(c) Following a falling out with Mr Grace in late 1995, Mr Buckley became the subject of some court proceedings in Melbourne, in which Mr Grace was to be a witness on the opposing side.

(d) In the course of those proceedings, in the first quarter of 1997, Burrell offered to provide Mr Buckley with an affidavit or statement that would assist his case, but made his signature on it conditional upon payment of a sum of money ($15,000), an offer which Mr Buckley refused on legal advice.

(e) In the first quarter of 1997 Burrell asked Mr Buckley a number of times for a sum of $15,000. Mr Buckley was unsure whether he was being asked to give Burrell the money or to lend it. Burrell’s requests became increasingly aggressive. Burrell on one occasion said something like, ‘Get me the fucking money…make it happen…just fucking get it now.’”

With the exception of some immaterial variations, this evidence is the same as the evidence that the Crown had indicated Mr Buckley would give when Wood CJ at CL ruled upon its admissibility in earlier proceedings (R v Burrell (unreported, NSWSC, 19 December 2003) at [126]). Burrell relied upon the submissions made in those proceedings and in the other proceedings that preceded the present appeal. The effect of those submissions is that since there was already ample evidence of Burrell’s financial motive for committing the alleged crime, the evidence ought to have been excluded under s 137 of the Evidence Act 1995 because it disclosed illegal conduct and bad character generally when Burrell had not raised character at the trial. This argument appears to rely upon the proposition that the availability of other evidence may decrease the probative value of evidence that goes to the same issue.

In the proceedings before Wood CJ at CL, his Honour ruled that the evidence was admissible. Relevantly, his Honour said (at [138]-[139] and [141]) that the evidence:

“…would have a probative value of some significance going to motive.

As such, I would regard the evidence as admissible, subject to its careful management in a way that would avoid any prejudicial, pejorative, and irrelevant reference by the witness to any unfavourable impression, which he personally formed of Mr Burrell, or to his conclusion that the conduct amounted to an attempt at ‘extortion.’ …

It is my assessment, consistently with the interpretation given to sections 135 and 137 of the Evidence Act, noted above, that carefully managed, neither section would require its exclusion. The evidence has a significant probative value so far as it is capable of showing that Mr Burrell was desperate for money at the relevant time. Any prejudice that might be occasioned from the circumstance that he was prepared to resort to the use of a false pretence, in order to obtain a loan, or was pressing Mr Buckley for money, can be met by a suitable direction to the jury limiting its use to questions of motive, and cautioning them not to use it by way of tendency reasoning.”

In R v Burrell [2004] NSWCCA 185, Spigelman CJ (Bell and Hislop JJ agreeing) made the following observations in relation to this evidence:

“…the evidence of Mr Buckley was the only evidence of motive beyond that referred to in the point marked 3., i.e. Mr Burrell selling assets and borrowing from his father. It is not, however, pertinent, contrary to Burrell’s submission, that there was other evidence of financial need. In any event, the prosecution is not, within reason, limited to relying on only some of the evidence available to it.

The evidence of Mr Buckley is reasonably contemporaneous with the alleged kidnapping and does add evidence of significance on the critical issue of motive. His Honour described its probative value as ‘significant.’ He also refused to exclude evidence under either s 135 or s 137, for reasons which appear to me to be correct and, on any view, were open to his Honour.”

At the first trial, Barr J took the same course as Wood CJ at CL and admitted the evidence (R v Burrell (unreported, NSWSC, 21 September 2005) at [32]). The matter was not reargued in the second trial.

In his summing up, Barr J referred to Mr Buckley’s evidence when dealing generally with the topic of Burrell’s financial motive to commit the alleged crime. His Honour referred to evidence from Mr Brown that during the course of a telephone conversation in which Burrell sought to borrow Mr Brown’s car, Burrell had asked whether Mr Brown had a spare $15,000. His Honour noted Burrell’s submission that the real purpose of the phone call was to obtain transport and that the question about the $15,000 was simply a joke, and said:

“You may need to consider that submission, in the light of another piece of evidence, this time from Mr Peter Buckley. Mr Burrell, he says, made a demand of him for $15,000…

Mr Buckley’s evidence was that the accused went to him and asked him if he would furnish a letter saying that he, the accused, was employed by Ultra Tune, and he wanted that letter in order to present it to a lending authority to get a loan. Mr Buckley refused.

The second thing Mr Buckley said was that on a number of occasions the accused asked him to make over the sum of $15,000. I say ‘make over’ because, as I understand Mr Buckley’s evidence, it was never clear to him whether the accused was asking for a gift or a loan but, at any rate, you heard his evidence and you will form your own views about that. I simply point out that the $15,000 is the same as the amount the accused asked Mr Brown for.”

The rest of the summing up that touched upon Mr Buckley’s evidence simply noted inconsistencies within his testimony that had been pointed out by Burrell. Burrell took an objection with respect to this aspect of the summing up, which his Honour corrected. No other objection was made in relation to the way Mr Buckley’s evidence was dealt with by his Honour.

In his submissions on this appeal, Burrell did not criticise his Honour’s summing up. Burrell was content to merely reiterate the submission made in the earlier proceedings that the probative value of the evidence was outweighed by the danger of unfair prejudice, and so it ought to have been excluded under s 137.

I do not accept this submission. The evidence was of probative value in relation to the matter of motive. The availability of other evidence of financial hardship did not in any way reduce that value. I accept that the conduct of Burrell disclosed by the evidence was not favourable to him and suggested an intemperate personality. Although not evidence of the commission of a crime, a criminal act was contemplated. However, it was plainly evidence which was probative of Burrell’s urgent desire to obtain funds. This case is quite different to a case such as R v Cook [2004] NSWCCA 52, where this Court held that evidence of flight ought to have been excluded under s 137 because the only response Burrell could have made to the evidence was to admit to prior convictions that had “a disturbingly close relationship to the offence with which he was charged” ([48]). The danger of prejudice arose from the potential for the jury to use the evidence as adverse to Burrell’s character or as tendency evidence. Although the trial judge did not specifically direct the jury that the evidence was not to be used for such a purpose, his Honour’s discussion of Mr Buckley’s evidence in the summing up was entirely confined to the context of motive, to which the evidence was highly relevant. In these circumstances there was no real danger that the jury would use the evidence in an impermissible and unfair way. If there had been, trial counsel would undoubtedly have brought the judge’s attention to this possibility. Apart from counsel accepting that there was no need for any further direction, if he had done so, the effect would have been to emphasise the significance of the evidence elevating its importance in the mind of the jury. There were sound forensic reasons to be satisfied that, confined to matters of motive, the directions given were appropriate.

I reject this ground of appeal.

Ground 7(b): The voice ‘similarity’ evidence given by Mrs Pemberton

This ground of appeal relates to the telephone call made to Crown Equipment on 23 May 1997. It was not disputed that whoever made that call must have had knowledge of the terms of the ransom note. The gist of the contested evidence is recorded in the judgment of Sully J (R v Burrell (unreported, NSWSC, 5 March 2001) at [71]-[74]):

“What is in issue for present purposes is the admissibility of evidence proposed to be led from Mrs Pemberton, the receptionist who took the call, concerning the voice of the caller.

The relevant facts in that connection, put simply, are that at the end of December 1997 the investigating police transferred onto an audio tape the previously recorded voice of the accused answering a question during the course of a recorded interview by police with him on 15 June 1997. The police also recorded the voices of six police officers reading the same words as those spoken by the accused. All seven recordings were then played to Mrs Pemberton.

Mrs Pemberton’s reaction to the tapes is described as follows by her in a statement that she gave subsequently to the police:

‘The audio tapes marked “C” and “D” were the closest to the voice that I had the telephone conversation with at Crown on Friday 23 May 1997. I believe that the caller on 23 May 1997 had a huskier voice. His voice also sounded like he was well educated. On a scale of ten I would say that the voice [sic] on tape “C” and “D” scored a six.’

The voice on tape ‘D’ is that of the accused. The voice on tape ‘C’ is that of a particular police officer; and it is now agreed that he was not in Goulburn on 23 May 1997.”

The Crown did not rely on this evidence as evidence of positive identification. The evidence was led merely as circumstantial evidence which, at its highest, was capable of establishing that the voice of the caller was similar to Burrell’s voice. Sully J held that the evidence was admissible on this basis, stating (at [76]) that “I consider that the giving at trial of proper directions will be sufficient to ensure that the jury will not give this evidence more than its true weight.” At [32] in his judgment of 21 September 2005, Barr J said in relation to this evidence: “This material is dealt with at paras 70-77 of the judgment of Sully J of 6 [sic – 5] March 2001. I agreed with his Honour’s reasoning and conclusion and decided to admit the evidence.”

Burrell relied on his submissions in earlier proceedings in relation to this ground of appeal. Burrell submitted that it was important that Mrs Pemberton did not say that the voices were “similar.” The argument, as I understand it, was that the fact that Mrs Pemberton had described Burrell’s voice as “close to,” rather than “similar” to, the voice of the caller gave rise to a significant danger that the jury would understand this as a positive identification rather than as evidence of similarity. It was submitted that since the evidence was of such low probative value in any event, it should have been excluded pursuant to s 137.

If there was a danger that the jury would use the evidence as positive identification evidence, then there was a danger that the jury would use the evidence in an unfairly prejudicial way. This much is clear from R v Pitkin (1995) 80 A Crim R 302, where the High Court quashed the accused’s convictions on the basis that evidence that the accused “looked like” the person who in fact committed the crime was not capable of positively identifying the accused as the offender. However, as Sully J noted in his judgment of 5 March 2001, in the present case any prejudice could have been remedied by appropriate directions. In my view Barr J’s directions on this issue were entirely appropriate. At 308-309 in the summing up his Honour said:

“There was evidence in relation to the telephone call from the Empire Hotel phone box from Mrs Pemberton of Crown Equipment. You remember that she listened to seven audio tapes. One of them was undoubtedly a tape of the accused’s voice; it was taken from one of the answers that you see in one of the interviews. Six other tapes were made by police officers. You will remember Mrs Pemberton told you that she was asked to pick out the voice, if she heard it. I do not remember precisely now what she was asked, but her response was to say, to pick out two voices as the closest and to rate them as equal at 6 on a scale of 10, and that must have been a scale of likeness. I do not want you to be misled by this evidence. I directed you before on the evidence of Mrs Lambert and Mrs Woods and I told you that that was identification evidence and I gave you a special warning about it. I want you to understand that the evidence of Miss [sic] Pemberton is not identification evidence. She does not say ‘that was the accused who was the man who was speaking to me.’ She does not say ‘the voice on that tape is the voice that spoke to me in the telephone call.’ The Crown does not put it that high. It is not identification evidence.”

Earlier in their addresses, both the Crown and counsel for Burrell had referred to the evidence as evidence of similarity. In Gibson (1999) 110 A Crim R 180 the victim had given evidence of hearing someone say “I’m going to kill you.” Initially the victim had said that the voice sounded like the accused’s voice, but in cross-examination he said that he was unsure. The accused was convicted of robbery with violence. At 187, Adams J (Spigelman CJ and Studdert J agreeing) said:

“To my mind this question was in substance left to the jury as a matter to which they would give only a little, if any, weight in their considerations. It was clearly not evidence of identification of the appellant and no suggestion was made by the learned trial judge that it was capable of being so used. In my view, this suffices to distinguish this case from Pitkin…”

In the present case, not only was there no suggestion that the evidence could be used as evidence of positive identification, but the trial judge carefully directed the jury that it could not be so used. If the evidence ever gave rise to any danger of unfair prejudice, it was cured by these directions.

I do not attach any significance to the fact that Mrs Pemberton described the accused’s voice as “closest” (counsel submitted “close to”) rather than “similar to” the voice of the caller. To the extent that the words “closest” or “close to” are capable of indicating a positive identification rather than a similarity, this possibility was entirely negated by Mrs Pemberton’s evidence that the caller’s voice had been huskier than the accused’s voice and that the likeness between the two voices was only six out of ten. The suggestion that the evidence would have been understood by the jury as a positive identification was made even more unlikely by the fact that at the time of the “identification” Mrs Pemberton had selected the voice of a police officer as being equally comparable to the voice of the caller.

It is clear that the evidence was of only slight probative value. So much was recognised by the Crown in its submissions. However, given that any danger of unfair prejudice could be (and was) removed by appropriate directions, there was no reason to exclude it. It has been said more than once in this Court that in applying s 137 of the Evidence Act, a trial judge can and should consider any warnings or directions he or she may give to ensure that unfair prejudice does not arise (see eg R v Em [2003] NSWCCA 374 at [121]). That is precisely what occurred in this case.

This ground of appeal fails.

Ground 8: His Honour erred in permitting further cross-examination by the Crown, pursuant to s 38 of the Evidence Act, after cross-examination by the defence had concluded, of Norman Elliott, Frances Carter and Alan Burrell.

This ground relates to his Honour’s decision to grant leave to the Crown pursuant to s 38 of the Evidence Act to cross-examine three witnesses, which it called: Norman Elliott, Frances Carter and Alan Burrell. Each witness gave evidence when cross-examined by the defence which was unfavourable to the Crown case.

Norman Elliott

Elliott was one of the witnesses who gave allegedly “false sighting” evidence, as I have described elsewhere in my summary of the Crown case. When examined in chief, Elliott said that on the morning of 6 May 1997 he entered the Parkroyal Hotel via the main revolving door entrance in the front lobby to use the toilets close by. He said that as he walked across the frontage of the hotel towards the main revolving door entrance, he looked towards the right and saw a lady, who he thought was Mrs Whelan, and a man coming out of the carpark ramp. Elliott recalled that as the man walked out of the carpark ramp he saw him move from the right to the left in front of the lady. He said that the man was a white Caucasian.

The Crown referred to the previous trial of Burrell in 2005 when Elliott had also given evidence. On that occasion the Crown also called Mr Shah, who it could positively be established was the man who exited the carpark at the same time as Mrs Whelan. He was of “Indian-type” origin. Although it was apparent that Shah did not match the description of the man Elliott remembered seeing, he maintained that his recollection of seeing the man, who exited the carpark ramp with Mrs Whelan, was correct. Later in his evidence in chief, the Crown played to him a video with footage from the hotel security cameras. The footage of the front lobby did not show Elliott entering the hotel at the time he said he did. Nor was there any sign of him in the footage of the corridor outside the toilet at the time he said he went to the toilet. The footage also showed that the man Elliott saw coming out of the carpark ramp was not in front of Mrs Whelan, as he said he was, but was behind her. These matters suggested that Elliott may not have seen Mrs Whelan or Shah walking out of the hotel carpark ramp on the morning of 6 May 1997.

When cross-examined by the defence, Elliott agreed that it was possible that he could have entered the hotel via the entrance east of the main revolving door entrance in the front lobby. This may explain why he was not seen on the security camera footage of the front lobby. He also accepted that his recollection of Shah’s position relative to Mrs Whelan as they both exited the carpark ramp and his recollection of Shah’s build and complexion were not correct.

In light of this evidence, the trial judge granted leave to the Crown, under s 38, to cross-examine Elliott after he had been cross-examined by the defence in relation to his movements that morning and his concession that his recollection in relation to Shah was not correct.

Frances Carter

Mrs Carter was another witness who gave allegedly “false sighting” evidence. During her evidence in chief, Carter confirmed her first written statement of 3 June 1997 to the police where she said that the woman she saw on 6 May 1997 was “possibly” Mrs Whelan. When cross-examined by the defence, she stated that the woman was “definitely” Mrs Whelan. The Crown was granted leave to cross-examine her about this evidence.

Alan Burrell

Mr Alan Burrell is Burrell’s father. He gave important evidence in relation to Burrell’s movements in April 1997. During his evidence in chief, Mr Burrell initially said that Burrell had stayed over at his home for 3 days and 2 nights. He said that Burrell arrived at his place on Tuesday 15 April 1997, stayed Tuesday night and Wednesday night and left on the Thursday. He said that he believed that Burrell was going to see Mr Whelan on the Wednesday, which, he agreed, was the second day of Burrell’s stay with him.

Later in his evidence in chief, the Crown took Mr Burrell to portions of the transcript of a conversation between Mr Burrell and his two daughters, Deborah and Tonya, on 11 July 1997, which the police had covertly recorded. Mr Burrell agreed that in that conversation, he said the 3 days of Burrell’s stay were Monday, Tuesday and Wednesday. He also agreed that he said to his daughters that on the Wednesday morning, being the third day, Burrell said, as he left Mr Burrell’s home, that he was going to the Whelan residence to see Mr Whelan about picking up some freelance advertising work. The Crown also took Mr Burrell to the transcript of an intercepted telephone conversation with his daughter, Tonya, on 19 June 1997. In that conversation he said that Burrell left his place on the third day and was going to see the Whelans to pick up some work.

When cross-examined, Mr Burrell agreed with a suggestion put to him that he was correct about Wednesday being the day Burrell visited the Whelans’ residence but was mistaken about it being the third day. With leave of the court under s 38, the Crown was allowed to cross-examine Mr Burrell. The prosecutor emphasised that Mr Burrell had signed a statement on 19 June 1997, in which he indicated that Burrell had stayed at his home on Monday night and Tuesday night and visited the Whelans on the Wednesday, being the third day.

The Crown case proceeded on the basis that Mr Burrell’s evidence that Burrell was going to see Mr Whelan on the Wednesday was mistaken, but was correct about it being the third day. The defence, however, submited that Mr Burrell was correct about the Wednesday but mistaken about it being the third day of Burrell’s stay.

The Crown version of events suggests Burrell falsely told his father of his intention to travel to Kurrajong on Thursday, having already gone the day before and failed in his attempt to kidnap Mrs Whelan. It refutes the defence submission that Burrell could not have been intending to kidnap Mrs Whelan on Wednesday 16 April 1997 because in telling his father on the Wednesday morning that he was going to see Mr Whelan, he did so before he went, consistently with the defence version of events.

In relation to cross-examination of each of these witnesses by the Crown, Burrell submitted that the Crown was given an opportunity to unfairly undermine the credibility of each witness and dilute the effect of evidence given during their cross-examination by the defence that was unfavourable to the Crown. Burrell emphasised that the Crown was on notice as to the evidence which the witnesses would give having regard to the evidence which they gave at the first trial in 2005.

Discussion

Section 38 of the Evidence Act 1995 (NSW) was introduced to facilitate a party in testing the evidence of a witness called in that party’s case. The rationale for liberalisation of the traditional rules was to ensure that all relevant evidence was placed before the tribunal of fact: (see ALRC Report No 26, Evidence (Interim), 1986 at [625]).

When a party calls a witness the usual expectation is that the witness’s evidence will assist that party’s case. For this reason, evidence given by such a witness which is unfavourable to the party calling him or her, may be seen as an indication of the honesty of the witness in the same way that an admission against a party’s own interests will often be seen to be more believable than a statement that serves that party’s interests. There were difficulties under the common law in having a witness declared hostile, a necessary step before the calling party could cross-examine: (see McLellan v Bowyer (1961) 106 CLR 95 at 102-104; R v Hadlow [1992] 2 Qd R 440 at 442-443, 448-450; ALRC Report No 26, Evidence (Interim), 1986 at [294]-[297], [623]). As a consequence, on occasions, because of the forensic risks a material witness would not be called by either side. Section 38 was intended to ameliorate the common law and make it easier for a party to test the evidence of their own witness.

Smart AJ described the operation of the section in R v Kneebone (1999) 47 NSWLR 450 at 471:

“Section 38 of the Evidence Act 1995 then needs to be considered as it allows a party, who called witness [sic], with the leave of the Court, to question a witness as though cross-examining her about evidence given that is unfavourable to the party. Under s 38(4) such questioning is to take place before the other parties cross-examine the witness unless the Court otherwise directs. Section 38 makes an important change in the law and removes restrictions which had the effect, on occasions, of making important evidence unavailable and preventing the adequate testing of evidence. The judge has the task of deciding whether the evidence is unfavourable (not favourable) and then whether in the exercise of his discretion he ought to grant leave to cross-examine. The careful exercise of that discretion is designed to ensure that there will be no unfairness.”

In the application of s 38 the courts have been careful to emphasise that the flexibility which the section provides should be implemented in a manner which ensures that the trial remains fair. In R v Fowler [2000] NSWCCA 142 at [120], Wood CJ at CL said:

“Section 38 of the Evidence Act now permits a party, by leave, to cross-examine a witness who meets any of the criteria identified in sub-section (1). Its exercise is, however, subject to a number of discretionary considerations, so as to prevent its abuse, and is a section that needs to be applied with some care in criminal trials. So it is that before leave is granted, the trial judge must give consideration to the matters specified in s 38(6), s 135 to s 137, and s 192 of the Act.”

As I emphasise below one of the more significant consequences of s 38 is that a court may allow a party who calls an unfavourable witness to cross-examine that witness after the witness has been cross-examined by the opposing lawyer. Accordingly, a witness may be cross-examined by the calling party about unfavourable evidence that emerges in the course of regular cross-examination. Of course, as Wood CJ at CL emphasised, the discretion to allow this to occur may only be exercised after taking account of the matters specified in s 38(6) s 135 to s 137 and s 192.

In most situations if a party is given leave to cross-examine their own witness, the cross-examination should occur before any other party cross-examines (s 38(4)). However, in R v Parkes (2003) 147 A Crim R 450 at 462, Ipp JA noted that there is ample authority to support the proposition that s 38 allows an unfavourable witness to be questioned on evidence led in ordinary cross-examination. His Honour cited R v Milat (unreported, NSWSC, 23 April 1996), R v Pantoja (unreported, NSWCCA, 5 November 1998) and R v Mansour (unreported, NSWSC, 19 November 1996). In Milat, Hunt CJ at CL said (at 6-7):

“As the unfavourable evidence was not given until the witnesses were cross-examined by the accused, the Crown could not cross-examine them about the unfavourable evidence until that cross-examination by the accused had taken place. In those circumstances, the situation was to be very different to that where the Crown has led evidence from the witness which is favourable to its case but has then also obtained evidence upon some other issue which was unfavourable. The Law Reform Commission expressed different views at different times concerning the stage at which the party calling such a witness should be entitled to cross-examine upon the unfavourable evidence in that different situation. Originally, it proposed that it should be after the other party or parties had had the opportunity to cross-examine the witness. In its Final Report, the Commission said that this should not be an inflexible requirement, and that provision should be made to enable the other party or parties to question the witness further after the cross-examination by the party who called the witness. Although perhaps not readily apparent from its terms, this appears to have been the intention behind subss (4) and (5) of s 38.

In order to reflect the intention (or to comply with the spirit) of the section, therefore, I held that, in the event that these witnesses called at the request of the accused gave the unfavourable evidence as expected, it would be appropriate to grant leave to the Crown pursuant to subs (1) to cross-examine them in relation to that evidence, and to do so after they had been cross-examined by the accused. I also said that the accused would then be permitted to cross-examine the witness further after the Crown had conducted its cross-examination, such cross-examination to be unlimited in nature and not restricted as if it were a re-examination, with the Crown having the right finally to re-examine the witness.”

One of the reasons why the common law regarding hostile witnesses was so strict was the assumption that a party who calls a witness is vouching for their honesty. This assumption plays no part in the statutory approach which allows a party to cross-examine their own witness, even when the unfavourable evidence is not unexpected. In its Interim Report of 1985 (Report No 26), the ALRC (at [626]) rejected the idea that the new rule should only apply where the unfavourable evidence came as a surprise to the calling party:

“It is argued that where a party knows that a witness will not swear up to his proof of evidence, but calls such a witness intending to attack his evidence, it is a misuse of evidence – the witness is not being put forward as a witness of truth. Thus this argument is based on the ‘vouching the witness’ theory which has been discredited. As to the prosecution, it is argued that it will receive a tactical advantage because, where a prior statement is used, it will go into evidence as an exhibit and go to the jury room. The prosecution, however, has suffered the tactical disadvantage of having to call a witness to prove its case and that witness has supported the defence. The argument also wrongly assumes that the defence will never have the need to call an unfavourable witness. A grave danger in imposing the requirement that the unfavourable evidence is unexpected is that it would enable criminals to defeat prosecutions by suborning key witnesses. The prosecution will normally find out before the hearing, particularly where there is a committal, that a witness is unfavourable.”

That, of course, is not to say that the fact that the prosecution is aware when they call a witness that the witness is likely to give unfavourable evidence is not a relevant consideration when exercising the discretion to grant leave or to make a direction.

In R v Parkes at 462 Ipp JA noted that “judges have disapproved of the use of s 38 as a tactical or forensic device.” This is particularly so when a party seeks leave to cross-examine an unfavourable witness after the witness has undergone ordinary cross-examination. In R v Kingswell (unreported, NSWCCA, 2 September 1998) Studdert J held that the trial judge had erred (but not sufficiently to have caused a miscarriage of justice) by granting leave under s 38 after ordinary cross-examination. His Honour was of the view that in circumstances where the Crown anticipated the unfavourable evidence the matter should have been dealt with before the other parties cross-examined the witness (see pp. 16-17). Smart J expressly disagreed with Studdert J and placed significance on the fact that, in order to overcome any prejudice that might have been caused, the trial judge had given opposing counsel the opportunity to further cross-examine the witness following the Crown’s s 38 cross-examination. This was the same procedure adopted by Hunt CJ at CL in R v Milat. There have been other cases where judges have disapproved of the use of s 38 as a tactical weapon. In R v Mansour (unreported, NSWSC, 19 November 1996), Levine J said (at 5):

“As I understand it, no one has pronounced upon s 38 to the effect, which is the objective, as I perceive it, of the present exercise, of holding that s 38 can be availed of in the adversary system as a device to cure damage done in cross-examination, a fortiori when in chief it would be clear to the examiner that there had been a departure by the witness from prior statements disclosing what the witness’ testimony fairly could have been anticipated to be.”

Similarly, in R v Pantoja (unreported, NSWCCA, 5 November 1998), Adams J said (at 53):

“I think it would be most unfortunate if counsel, especially prosecuting counsel, thought that s 38 of the Evidence Act might be used as a device to nullify the effect of a cross-examination where they have themselves proceeded or permitted the evidence to proceed upon a false or unreliable basis.”

Although these considerations are relevant to the exercise of a trial judge’s discretion as to whether to grant leave or make a direction (see also s 192(2) in particular s 192(2)(b)), they are not rules of law. James J stated the position (at 51) in Pantoja:

“I agree with the trial judge that leave can be granted pursuant to para (a) or para (c) of s 38(1), even though the evidence on which the application is based (that is the evidence which is unfavourable to the party calling the witness or which is inconsistent with a prior statement by the witness) was given by the witness in cross-examination. That the evidence was given in cross-examination is, of course, an important consideration in deciding whether the trial judge’s discretion should be exercised in favour of granting leave.”

It is important that trial judges be alert to ensure that s 38 is not used as a tactical weapon, which may result in unfairness. No doubt there will be occasions when an opportunity to cross-examine a party’s own witness after they have been cross-examined by the other side will bring a forensic advantage. A significant means by which the fairness of the trial can be protected is the capacity to allow the opposing party an opportunity to further cross-examine the witness after the s 38 examination is complete.

Parkes was a case where the Crown had deliberately refrained from asking questions in chief that may have received a response unfavourable to the Crown case. The s 38 application, which had been foreshadowed by the Crown, was not made until the anticipated evidence was elicited in cross-examination by the defence. Of these circumstances Ipp JA said at 464:

“It may be argued that some unfairness lay in the fact that the Crown, by the procedure it adopted, obtained the best of both worlds, a result far removed from the situation that would have obtained under traditional adversarial processes. But s 38 does have the potential for transforming the traditional procedure; this lies at the very heart of the section. Accordingly, it seems to me, the mere fact that this actually occurred and the Crown was allowed to cross-examine on evidence brought out in cross-examination by the defendant, startling as it may seem to those brought up on more old-fashioned ways, is not enough to constitute unfair manipulation.…

Unfairness to Burrell, as I have previously indicated, has to be judged in the context of the legislation. I see nothing in the section that prohibits, expressly or impliedly, the course that the Crown adopted. What in fact occurred was that the Crown was allowed to cross-examine Harris and water down the effect of the evidence he had given. There was nothing unfair in the cross-examination. The result was that a truer picture of the situation was presented to the jury than would have been the case had the Crown been refused leave to cross-examine. This is the very purpose underlying s 38…”

His Honour noted that the Crown had conducted its case in a reasonable manner and concluded (at 465):

“Accordingly, I have come to the conclusion that, although the deliberate decisions taken by the Crown have to be classified as falling into the basket of forensic tactics, they did not lead to the Crown’s application under s 38 being an abuse of the section.”

Resolution of ground 8

In the present case Burrell contended that by adopting the procedure that he did, the trial judge gave the imprimatur of his office to the Crown’s line of questioning resulting in unfairness. It was submitted that the defence was prejudiced because the jury would have seen it as significant that the judge allowed the Crown to attack evidence that was favourable to the defence and that had emerged from the defence’s cross-examination. The argument is adequately dealt with by the remarks of Ipp JA in Parkes. In any event, I doubt whether a jury would attach the significance to this sequence of events which may be given to it by a lawyer. I doubt that a jury would have the same detailed knowledge of the traditional trial procedure. A member of a jury would in my view be more likely to believe that the judge was ensuring a fair trial where the parties had an adequate opportunity to test unfavourable evidence and would be unlikely to place undue significance in the order in which events occurred, if they placed significance in it at all.

This ground of appeal fails.

Ground 9: His Honour erred in:

(a) not discharging the jury and not giving in the circumstances a direction in accordance with Black v The Queen (1993) 179 CLR 44;

(b) not giving in the circumstances a modified direction to that outlined in Black;

(c) failing to enquire at the end of the day of 5 June 2006 having already given a Black direction as to whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance.

I have previously recorded the fact that after the jury had been deliberating for eight days one juror sent the judge a note. An edited version of the note was supplied by his Honour to counsel.

When giving directions to the jury following receipt of this note his Honour informed the jury that the two transgressions identified by the juror in the note were “minor matters” that caused the judge no concern and that ought not to concern the other jurors. In particular, his Honour said that by placing his or her notes in their bag and subsequently removing them “the juror has done nothing wrong and that no reason arises for any censure by any person, not by any other member of the jury and not by me.” In relation to checking the location of the town of Guyra, his Honour said that that was technically contrary to his instructions but “is not something that troubles me and it is not something that should trouble the juror” or that deserved censure.

Having received the note the trial judge decided that significant portions should not be disclosed to counsel and were not relevant to the future conduct of the trial. His Honour took this course because he was of the view that the details referred to the manner in which the jury conducted its deliberations. The transcript contains the following discussion between the trial judge and counsel:

**

“HIS HONOUR: There is a note from the jury. I shall have it marked 114 for identification.

MFI #114 JURY NOTE

HIS HONOUR: I will direct that it be placed in an envelope which will be sealed and marked ‘not to be opened unless ordered by a Judge.’ I am taking that action because the note contains some accounts of events in the jury room which it is not appropriate to disclose.

I have had copies made of the note from which certain parts have been deleted. I have made them available to counsel. They are made available on a confidential basis and should not be disclosed by counsel any further than is necessary for the performance of their functions.

Now, Mr Crown, you’re aware of the substance of the note and the fact that the jury appear to have difficulty coming to a unanimous agreement, and you are aware of certain of the other contents of the note. Are there any submissions that you wish to make about what I should do next?

CROWN PROSECUTOR: Your Honour, although your Honour has described this as a note from the jury, it is, in fact, we would submit, a note from a single juror.

HIS HONOUR: It is a note from a single juror.

CROWN PROSECUTOR: And it would appear from what your Honour has said that it was handed directly by a single juror to one of the Sheriff’s Officers, not through the jury or through the Foreman. So, your Honour, we have no idea whether the rest of the jury have any awareness at all about the contents of this note, and we would submit that your Honour should bring the whole jury in and inform them of the contents of at least part of the note, and, your Honour, there is no request from the Foreman for a discharge of the jury. It would appear, rather, that it is a single juror who suggests the stage has been reached for a discharge. We would submit that that itself would not be sufficient to cause your Honour to discharge the jury.

It is also apparent from the edited copy of the note that your Honour has provided to counsel that the main purpose or perhaps one of the main purposes for sending this note to your Honour by one of the jurors is in effect to get his story in first before your Honour hears it from anybody else. We would submit that your Honour ought not to do anything based upon this note until the rest of the jury, through the Foreman, have had an opportunity to present whatever version they wish to present to your Honour about similar matters or different matters that may have come to their attention.

Finally, we would submit that, because of the length of the trial, because of the fact that this is a second trial and the extreme unlikelihood of there being any further trial, that your Honour, rather than discharging the jury, would give them a Black direction and require them to deliberate further for some extended period. If your Honour pleases.

HIS HONOUR: Mr Dalton?

DALTON: Yes your Honour. In our submission, calling for comments from the other jurors is tantamount to asking your Honour to conduct an inquiry regarding the manner of the deliberations of the jury which we would submit is inappropriate.

Secondly, your Honour, we would submit that a single juror has the same rights and, indeed, responsibilities as any other juror – as indeed the other 11 – being of a different mind. He has made it clear that he has not been able to agree with the other members of the jury for many days now and that that is not going to change. In those circumstances, in our submission, a Black direction is likely to seem to him or her as directed at that single juror and is also likely to, given the nature of the contents of the note, otherwise be used as a tool of oppression to the single juror and, in accordance with those submissions, we would add our submission that the jury should be discharged.

CROWN PROSECUTOR: Your Honour, there is one further submission that I would like to make, that is, that the juror who has written this note has disclosed to your Honour an infraction, which I won’t detail, of a minor nature which is contrary to the directions which your Honour has given throughout the trial. Your Honour, he assures your Honour that that was the only infraction that he has committed. We would submit that in the light of the disclosure of an infraction which directly disobeys what your Honour has said, that juror should be required to assure your Honour on oath that there are no other infractions that have been committed by them.

HIS HONOUR: If the trial is to continue, I am inclined to tell the jury that the two matters raised by the juror, and just obliquely referred to by the Crown as an infraction, are not a matter which should concern that juror. Does either of you want to put anything against that?

CROWN PROSECUTOR: I didn’t hear the very end of the sentence.

HIS HONOUR: Are not a matter that should concern the juror. Does either of you want to say anything about that?

CROWN PROSECUTOR: No, your Honour, just what I said before, that we would submit that your Honour should be assured on oath by the juror that there are no other matters.

HIS HONOUR: Yes, that’s a different matter.

CROWN PROSECUTOR: Yes. Subject to that, no.

HIS HONOUR: I don’t think I would be attracted by that, Mr Crown. I do not think that things have reached a stage at which the jury should be discharged. I think that I should give the jury a Black direction. I think that before doing so I should inform the juror who has written to me that the two particular matters which he raises are not matters which should concern him or should get in the way of further deliberations and verdicts in due course, if they can be reached.

I do not think that the fact that the note comes from a juror other than the Foreman makes it of any less weight or importance.

I do not think, in view of the minor nature of the action described by the juror, that I should require that juror, as submitted by the Crown, to give any assurance to the Court that no other infraction has occurred.

CROWN PROSECUTOR: Is your Honour of the view that the other jurors should be made aware of the nature of the communication from the single juror?

HIS HONOUR: Yes, I am, and it will be obvious to them all when I speak to them, that there has been a note. I propose to refer to the two particular matters in the note in order to assure the juror that they are not matters that should be of concern. All the rest of the jurors will then understand what has happened.

CROWN PROSECUTOR: If your Honour pleases.

DALTON: Your Honour, does your Honour propose to say something in the order that your Honour is going to give, the Black direction, your Honour would note that that was normal in these circumstances, firstly. Secondly, that if there is a small minority, that they should not feel victimised by the majority and that the Black direction does not suggest that that should take place.

HIS HONOUR: I think I will just give them the Black direction, Mr Dalton.

DALTON: Your Honour, I am deeply concerned given the nature of the note that a particular juror is going to feel as though the direction is aimed at that person, and really the underlying suggestion is that he or she should compromise. That’s what I’m worried about, your Honour.

CROWN PROSECUTOR: The Black direction contains an admonition against exactly that.

HIS HONOUR: That’s what the Black direction is designed to do, Mr Dalton, to encourage further deliberation, but also to encourage the maintenance by each juror of that juror’s independent attitude and responsibilities as a juror.

DALTON: And that a person shouldn’t feel overborne by others. The long history of this matter is a course of great concern at this stage of these proceedings, your Honour. This would be the second time it has been indicated to the Court that a jury cannot agree and this is on the back of, in 2001, the Director filing a no-bill noting there was no reasonable prospects of a conviction. Given the reports of the jury deliberations at the end of the last trial, your Honour, a matter was raised in pre-trial applications, we are concerned a Black direction at this stage would cause an intolerable pressure on a person in a situation described by this juror in his or her note.

HIS HONOUR: You seem now to be going back. I do think that I should give the Black direction.

DALTON: Your Honour, as the Court pleases with respect to that ruling. My additional submission, your Honour says more with respect to a minority, the jury should not feel victimised in these circumstances. Thank you, your Honour.

CROWN PROSECUTOR: We submit that the Black direction has been very carefully crafted to provide the correct balance between encouragement to further deliberations and at the same time an encouragement to individual jurors to maintain the integrity of their oath and their views. It has been a formula that has been used on numerous occasions in the past. We would submit there is no reason that’s been advanced by the defence to depart from that very carefully crafted formula on this occasion.

HIS HONOUR: I don’t think that I should add to the Black direction the terms contended for by Mr Dalton. May we have the jury, please?”

Although the trial judge had provided counsel with an edited version of the juror’s note no application was made to his Honour for disclosure of the balance. The parties were content to accept his Honour’s decision that the edited portions of the note should not be disclosed. On the hearing of the appeal the court determined that counsel should have access to the complete note and invited submissions as to whether it should be admitted into evidence on the appeal. The confidentiality of the complete note was otherwise maintained.

After having access to the complete version of the note, counsel for Burrell sought leave to supplement Ground 9 by contending that the trial judge had erred by:

not disclosing the full terms of the note, or at least disclosing that the minority juror:

did not feel the deliberations were any longer genuine;

was intimidated by fear of exposure of two possible transgressions of directions;

based his or her assertion that the deliberations were serving no useful purpose, and his or her pleas to bring the proceedings to an end, to a significant degree on having been told by the group that rather than accept his or her decision they would drag the deliberations out further and further and treat him or her in an extremely unpleasant manner by “freezing” him or her out until he or she “came across;”

not requesting evidence on oath pursuant to s 55 [sic] of the Jury Act so material could be properly before the Court without contravention of s 68B; and

not discharging the jury because of the irregularity caused by the juror’s breach of the Jury Act in writing the note.

These supplementary contentions, and the original ground 9, raise a number of interrelated issues concerning the functions of the trial judge, the jury and counsel for the parties.

Although now rarely employed in civil trials, the jury remains a fundamental institution in the criminal law. From the earliest days of European settlement of Australia, the right to trial by jury (which was not granted until the 1830s) was seen as a marker of civic responsibility, colonial independence and a check on the arbitrary exercise of public power. In 1819, a group of 1261 “gentlemen, clergy, settlers, Merchants, Landholders and other free Inhabitants of His Majesty’s Territory of New South Wales” (said at the time by Governor Macquarie to constitute “All the Men of Wealth, Rank or Intelligence throughout the Colony”) sent to the King what has come to be known as the Emancipist Petition. In it they stated:

“…THAT the Criminal Court appears to your Petitioners to be rather a Court Martial than a Court of Law…this Court is not calculated to administer and distribute impartial Justice to the numerous free and respectable Population of the Colony: that it cannot command that veneration, awe and respect, which ever ought to attend upon a Court of Justice…[W]e do not consider our lives and our liberties can be so well secured, as those of British subjects should be, nor can the laws of our country be administered with sufficient purity and impartiality…THAT your petitioners most humbly beg leave to approach Your Royal Highness, and ardently and most humbly pray, That Your Royal Highness of your grace and clemency may be pleased to extend to us, His Majesty’s Subjects in this Territory, that great and valued inheritance of our Ancestors, Trial by Jury…” (See D. Neal, The Rule of Law in a Penal Colony, Paperback edition, Cambridge University Press, Cambridge, 2002, p. 167).

Indeed, so valued was the institution that trial by jury for Commonwealth offences is now one of the rights that are expressly guaranteed under the Constitution, which provides (in s 80) that “The trial on indictment of any offence against any law of the Commonwealth shall be by jury…”

A fundamental attribute of trial by jury is that it provides for direct community involvement in the administration of the criminal law. It has many benefits, not the least being the legitimacy that the jury gives to pronouncements of guilt or innocence in relation to serious criminal offences. The protection of that legitimacy is fundamental to any decision which affects the jury’s function or process. An important element of its legitimacy is that a jury’s verdict is final. For this reason, the circumstances in which a court will go behind the verdict of a jury are extremely rare. Blackstone spoke of the desirability of ensuring that

“…this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it…” (Commentaries on the Laws of England, IV, University of Chicago Press, Chicago, 1979, pp. 342-343).

Although Blackstone was not dealing with the issues here under consideration, his comment is nevertheless relevant in the present context. Not only must the jury be shielded from inappropriate external influences, but its deliberations must be protected from external oversight and challenge. As Wood CJ at CL noted in R v K (2003) 59 NSWLR 431 at 449:

“The sanctity of the jury room and the finality of the verdict are important safeguards in the integrity of the system of justice which operates in this country. Public confidence in the jury system would be jeopardised if they were to be undermined, in any way.”

The Note – Disclosure to counsel

In Hart (2002) 131 A Crim R 609 the trial of the accused took place at Griffith. The appellant was convicted. During the trial the appellant had called a character witness. Just as the trial judge began the summing-up, his Honour received a note from the jury. The precise terms of the note were not recorded but his Honour later told counsel, in the absence of the jury, that “it is along the lines of, and here I’m seeking to quote it, have a problem with the evidence of the last witness [sic].” The witness being referred to was the character witness. By the time his Honour said this to counsel, his Honour had already given the jury directions to retire with the note and to discuss it amongst themselves. His Honour also told the jury that:

“I suppose you’d better come back into the court room when you’ve discussed the note and when the juror has had the opportunity to communicate his views to the rest of you, you can come back into the court room or in advance of that send me a note and if you want some problem resolved, you can come back into the court room and I’ll resolve the problem if I can in the light of whatever note you’ve sent me.”

In the end the jury informed the court officer that they had resolved the issue themselves, and no further note was sent to the trial judge. The original note was not returned.

This Court upheld the appeal in Hart and, inter alia, held that the contents of the jury note should have been disclosed to counsel. Adams J (Sheller JA and Hidden J agreeing) stated that “in the circumstances of this case, the evidence of that character witness was capable of being very significant.” Given the potential importance of the evidence, the appeal was allowed on the basis that “there was a very real risk that what was sought to be conveyed [by the jury note] was not merely a query about the evidence of the witness but something about the witness herself, the distinction being one I think unlikely to be made by a lay person.” During the course of his reasons (at 600), his Honour stated that:

“It is most unfortunate that his Honour took the unconventional step of not showing the note to counsel and having it marked for identification, which is the invariable practice in the courts of this State.”

While “invariable” may have been too strong a word, Adams J was correct to identify that in most cases any communication between the jury and the judge should be disclosed in full to counsel for both parties. The exceptions are narrowly confined (Ramstead v The Queen [1999] 2 AC 92 at 98).

The reason for this approach was stated by James LJ in Lamb (1974) 59 Cr App R 196 at 198: “What is of great importance is that any communication should be made known in open court in public in the presence of the accused person, his legal representatives and the prosecution, so that there is no secrecy.”

This rationale flows logically from the “fundamental requirement of the administration of the criminal law that the trial and every aspect of the trial must take place in open court:” (R v Smith [1982] 2 NSWLR 608 at 611 per Street CJ). However, there are occasions when disclosure is not appropriate. It has never applied to material which discloses the actual deliberations of the jury. As was noted in Smith (at 612), when the subject matter of a jury note does not “inhere in or relate to the resolution of the issues joined between the Crown and the accused” it is a matter for the discretion of the trial judge as to whether or not to disclose the note to counsel. It is neither appropriate nor advisable for a judge to disclose a note that relates solely to the deliberative processes of jurors inter se. The deliberations of the jury are not a matter upon which the Crown and the accused can join issue, because it is not a subject in respect of which evidence will be admitted by the court.

The essence of the practice that the contents of a jury note should be disclosed to the parties is that procedural fairness entitles the accused and the prosecution to at least know about any query or problem in respect of which the parties may be in a position to assist the court. However, in R v Pearson [1996] 3 NZLR 275 Eichelbaum CJ said (at 279):

“…the overarching approach must simply be one of fairness, and regard for the appearance as well as the reality of justice. As a general rule counsel must be made aware of the communication so that each will have the opportunity to be heard on the action to be taken. However, given the infinite variety of circumstances that will arise it is impossible to lay down absolutes. We do not say that the opportunity to be heard must always be given before the Judge replies; some communications will admit of only one answer…”

It has always been the case that it is inappropriate for the jury to disclose their deliberative process to the judge. It would be equally inappropriate if a judge was to further the error by disclosing the jury’s deliberative process to counsel. Unless a jury note reveals some irregularity upon which submissions would be of assistance, the only purpose served by the disclosure of the note would be to dispel any impression of secrecy. Since for sound policy reasons a jury’s deliberations are required to be secret, disclosure must be confined.

The problem was discussed in R v Gorman (1987) 85 Cr App R 121. In that case the jury sent a note to the trial judge which, in addition to disclosing the fact that they were in disagreement, also disclosed the exact number of jurors for and against acquittal. The judge informed counsel of the fact of the division, but not of the precise figures. The English Court of Appeal refused to interfere with the verdict subsequently arrived at by the jury. At 126-127 the Lord Chief Justice said:

“Accordingly it seems to us that certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to consider its verdict.

First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. We have been helpfully referred to a decision of this Court reported in Connor, The Times, June 26, 1985, where that very situation seems to have arisen.

Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.

Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as is possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.

We may add, before parting with the case, that the object of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret communication between the court and jury, and secondly, to enable the judge to give proper and accurate assistance to the jury upon any matter of law or fact which is troubling them. If those principles are borne in mind, the judge will, one imagines, be able to avoid the danger of committing any material irregularity.”

This issue was considered by this Court in Yuill (1994) 77 A Crim R 314, where the Court (Hunt CJ at CL, Abadee and Simpson JJ at 324) took a similar approach:

“It has always been the basic rule that the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript…This Court has recently said that the preferred course is not only for such communications to be recorded in the transcript but also for them to be marked for identification and placed in the file: Masters (1992) 26 NSWLR 450 at 482; 59 A Crim R 445 at 475-476.

There are two exceptions to that basic rule. The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine – for example, a request by a juror to pass on a message to a relative about staying back late…The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge – the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement…”

In the present case, the trial judge took the correct approach. His Honour concluded that the note included information that ought not to have been disclosed by the juror. If it is inappropriate for the jury to disclose voting figures, then a fortiori it is inappropriate to disclose how those figures were arrived at. That this is so cannot be doubted when one considers legislative prohibitions against the solicitation or disclosure of such information that are contained in ss 68A and 68B of the Jury Act 1977. The masked portions of the note related solely to the manner in which the jurors conducted their deliberations. The deliberations were entirely inter se, and although robust (perhaps heated) they involved no illegality or irregularity.

Burrell complained that the note indicated that the juror felt that he or she was being pressured by the other jurors. Burrell sought to draw an analogy with the confession of a person who is suspected of a crime when the confession is influenced by violent, oppressive, inhuman or degrading conduct or a threat of conduct of that kind. Such a confession is inadmissible under s 84 of the Evidence Act 1995. The analogy does not obtain in the present case. The experience of the minority juror, whilst perhaps unpleasant, was by no means beyond the bounds of normal human behaviour. It is to be expected that a group of twelve strangers asked to arrive at a unanimous decision will at some point disagree on one or more issues. So long as there is no illegality or irregularity involved, how the jurors go about resolving the disagreement is a matter for them. The experience of the juror in this case might be exceptional, or it might be common. The debate may have been more robust than in some cases. There may also be cases where the pressure of argument from one or more jurors may have been more burdensome than in the present case. However, that is not a matter with which this Court need concern itself. To do so would breach the fundamental principle that jury deliberations are conducted in private.

There is one respect in which it might be possible to say that the pressure applied to the juror in this case could have constituted an irregularity. It lay in the other jurors’ supposed threats to disclose to the judge the minority juror’s minor transgressions in order to cajole him or her into changing their mind. Burrell argued that this was not disclosed to counsel and that it ought to have been. However, it appears from the edited version of the jury note that the situation was adequately conveyed. From the edited note it appears:

that the juror may have twice breached (or almost breached) the judge’s directions in a manner that had concerned other jurors;

that the juror clearly felt that his or her breaches might result in the juror being “censured” by the judge; and

that the juror believed that disclosure by the other jurors of the supposed breaches was imminent and that consequently the judge was “entitled to the courtesy of hearing about what I have, (and have not) done, from me, first.”

It is likely that the juror felt that his or her refusal to change their mind would prompt the other jurors to disclose the alleged breaches of the judge’s directions. The trial judge did not need to reveal any more of the note or say anything else further in order to communicate this matter to counsel. Moreover, the judge made it clear in his subsequent directions that the juror had in effect done nothing wrong and did not deserve censure from the judge or the other jurors. Any possible irregularity in the jury process was cured by this direction, which would have removed the impact of any threats if they had been made by other jurors.

Even if there was no suggestion that the juror’s breaches of directions were being used as leverage against him in the jury room, it was appropriate for the trial judge to have disclosed (as he in fact did) the details of the alleged transgressions in open court. A juror’s breach of directions, if it occurs, is an issue about which the parties should be informed and about which they should have an opportunity to make submissions.

Burrell submitted that the trial judge erred by not disclosing that the minority juror felt that further deliberations would be not genuine. However, his Honour included the juror’s comment in the note that “I have to ask that the continued deliberations, that now no longer serve a purpose, please be brought to an end.” Burrell contended that his Honour erred by not disclosing that the latter assertion was largely based on the fact that the other jurors had said that they would drag out the deliberations and freeze the minority juror out until he or she came around to their way of thinking. This assertion by the minority juror, even if true, was solely concerned with the jury’s deliberations. His Honour was correct not to disclose it.

The question of the admissibility of evidence of the deliberations of a jury has been considered on many occasions. In R v Wooller (1817) 171 ER 589, the jury came into the court when the jury box was occupied by a jury from another case. Consequently only four jurors could fit in the court room when the verdict was delivered. Lord Ellenborough said (at 590): “This distinguishes the present case from those which usually occur, where every individual of the jury hears what is said, and has it in his power to dissent; there the evidence is complete, that he knew what passed, and his not dissenting is conclusive to shew his approbation of the verdict.”

On many of the subsequent occasions when this case has been considered it has not been acknowledged that notwithstanding this conclusion the court still refused to receive evidence from the jurors who claimed not to be able to hear the verdict. Lord Ellenborough said (again at 590): “The Court think that they are shut out from acquiring any knowledge of the fact by means of an affidavit. From the statement made by the learned Judge who tried the cause, it appears that the verdict was given under circumstances which render it doubtful whether the usual assent was given by all the jury to the verdict delivered by the foreman. The danger would be infinite if an affidavit could be received from a juryman for the purpose of setting aside a verdict.”

In The Queen v Michael Murphy (1867-69) LR 2 PC 535 (which was an appeal to the Privy Council from the Supreme Court of NSW), their Lordships noted (at 548) that: “…we have not discovered any valid authority for holding a verdict of conviction or acquittal in a case of Felony delivered by a competent jury before a competent Tribunal in due form of law to be a nullity by reason of some conduct on the part of the jury which the Court considers unsatisfactory.”

The Privy Council identified (at 549-550) that in all the civil cases where the court had admitted evidence from jurors that impugned a verdict, the evidence had “alleged traversable facts material and relevant, to shew that the verdict had actually resulted from improper influence,” such as where the jury had taken inadmissible evidence into the jury room.

Bankes LJ stated in Ellis v Deheer [1922] 2 KB 113 at 117-118 that: “…I desire to make it clear that the Court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself. It has for many years been a well accepted rule that when once a verdict has been given it ought not to be open to an individual juryman to challenge it, or to attempt to support it if challenged. I have spoken of this as a rule of law, but it has also been generally accepted by the public as a rule of conduct, that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential.”

In the same case (at 120), Atkin LJ said: “In accordance with the ordinary practice the verdict is, or ought to be, delivered in open Court by the foreman in the presence of the other jurymen, and if it is so delivered in their presence there is a prima facie presumption that they all assented to it.”

The presumption of which Atkin LJ speaks is so strong that it cannot be rebutted by evidence of the jury’s deliberations inter se, and the court will not admit such evidence. For instance in Vaise v Delaval (1785) 99 ER 944, the Court refused to admit evidence from two jurors that the jury had made their decision by tossing a coin. In Nanan v The State [1986] AC 860, the accused had been convicted and sentenced to death. Notwithstanding the dire consequences, the Privy Council refused to admit affidavit evidence of four jurors (including the foreman) that when delivering the verdict the foreman had mistakenly agreed that the verdict was unanimous when there had only been a majority of 8:4. Even though under the relevant statute a unanimous verdict was required to sustain the conviction, the court refused to go behind the jury’s verdict. Their Lordships said (at 872): “It may be said that the alleged misapprehension in the present case, if it existed, was of a fundamental kind; but the same may be said of other misapprehensions, for example as to the facts of the case or as to the applicable law, which can likewise lead to an erroneous verdict. In such cases, however, evidence of the misapprehension is equally inadmissible.”

The prohibition against admitting evidence of the jury’s deliberations is such that the English Court of Appeal refused to set aside a verdict that had been arrived at after three members of the jury consulted (and were apparently influenced by) a ouija board: (R v Young [1995] QB 324 at 331).

R v Emmett and Masland (1988) 14 NSWLR 327 was a case where the appellant’s convictions were set aside and verdicts of acquittal entered. Evidence was admitted from jurors which showed misconduct on the part of Sherrif’s officers, who were found to have participated in the jury’s deliberations. In admitting evidence of the relevant events, Lee J said (at 334):

“I have taken some time to go through the authorities to make clear that the present proceedings are in no way a departure from accepted law as to non-disclosure of a jury’s deliberations and the finality of a jury’s verdict. The rule as to non-disclosure by a juror of what goes on in the jury room serves a valuable public purpose as has been explained. But the rule is not one which prevents a court from considering evidence of jurors on matters which are extrinsic to the matter of deliberations of the jury. What happened in the present case happened, in significant respects, in the jury room and it is for that reason that I am at pains to point out that none the less the course taken in this case is in no sense a departure from established law but, indeed, an application of established law. For there are a number of cases which make clear that when matters extrinsic to the jury’s actual deliberations are brought to the notice of the court by members of the jury the court will in a proper case intervene and set aside a verdict.”

While agreeing generally with Lee J, Grove J (at 340-341) made the following additional comment: “This appeal has revealed that there has been a failure in the duty of protection which is reposed in jury keepers. Thus it has been necessary to admit evidence which in its peripheries had the result of exposing not only the matter of interaction between the keepers and the jury but as an incidental of some of the activity amongst the jury inter se. I expressly confirm my adherence to the principle that the deliberations of jurors and their conduct, unenhanced by any contribution from an external source, are privileged from later examination and analysis.”

In Minarowska and Koziol (1995) 83 A Crim R 78, Gleeson CJ noted (at 85) that the distinction between inadmissible evidence of a jury’s deliberations and admissible evidence of “extrinsic matters” that prove a material irregularity is often very hard to draw. R v K (2003) 59 NSWLR 431 is a good example of the application of the distinction. In that case, the court admitted evidence from jurors about external research that had been performed on the internet, but declined to admit evidence of any discussion of the material so obtained or of the effect it had on the deliberations. Gleeson CJ expressly left open the possibility, endorsed by the Court of Appeal of New Zealand in Tuia v R [1994] 3 NZLR 553 at 556-557, that the Court might have a residual discretion to admit evidence of a jury’s deliberations when it was in the interests of justice to do so.

Burrell contended that the trial judge erred by failing to request the minority juror to give evidence on oath, pursuant to s 55 of the Jury Act 1977, concerning the matters in the note so that the contents of the note was properly before the court without breaching s 68B. Section 68B(1) of the Act provides:

“(1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about:

(a) the deliberations of the jury, or

(b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest.”

Burrell’s argument does not have any substance. The juror’s disclosure was made to the judge and for the purpose of the trial. Although in part inappropriate, it was not in breach of s 68B. There is no requirement that matters referred to in a jury note should be proved by evidence on oath before the court can act upon it or before counsel can make submissions about it. Burrell’s reliance on s 55 of the Jury Act 1977 (which allows a court to permit a deliberating jury to be supplied with refreshments) is presumably intended as a reference to s 55D, which provides:

“A judge or coroner may examine a juror on oath to determine:

(a) whether the juror has read, seen or heard alleged prejudicial material published or broadcast during the trial or inquest, and

(b) whether the juror has been influenced by the material. “

The section has no relevance to the present case.

Furthermore, for the reasons I have already discussed the trial court could not have admitted evidence that went beyond what was disclosed in the edited version of the note in any event.

My conclusion that by writing the note the minority juror was not in breach of s 68B disposes of Burrell’s further contention that the jury ought to have been discharged because of the supposed irregularity caused by the juror’s alleged breach of the Jury Act in writing the note.

Discharge of the jury and the Black direction

Burrell contended that the trial judge erred by failing to discharge the jury after receipt of the note. The submission is based on the suggestion that the note revealed that the jury was intractably deadlocked and unable to meaningfully continue their deliberations. The relevant principle is that “an intimation…that the jury is unable to reach a decision does not, standing alone, give rise to a ground of appeal:” Deemal-Hall v DPP (Cth) (1995) 65 SASR 495 at 503. In Tangye (1997) 92 A Crim R 545 at 549, Hunt CJ at CL said: “The fact that the note referred to an inability rather than a difficulty in reaching agreement did not matter, as the judge was not obliged to accept that assertion without attempting to encourage the jury to reach an agreement.”

Burrell further submitted that the note contravened the test provided in Webb and Hay v The Queen (1996) 181 CLR 41 where Mason CJ and McHugh J said (at 53): “…the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.”

The test to which Burrell drew attention is that which is applied where there is a suggestion that a juror(s) is or may be biased. In the same case (at 74), Deane J noted that: “The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.”

Burrell submitted that the note may have given rise to a reasonable apprehension or suspicion of bias in a fair-minded and informed member of the public in two ways: firstly, in that it revealed that the intractable majority would not discharge their task impartially and, secondly, in that it demonstrated that the minority juror would not or could not discharge their task impartially because of their evident distress. In this case, the only category of disqualifiable bias that could possibly be asserted is the second category mentioned by Deane J, namely, bias evidenced by conduct.

The submission must be rejected. The jury had, by the time the note was written, been in deliberations for a number of days. It is not surprising that firm positions had been taken and rigorous debate was occurring. It could not rationally be suggested that all jurors must come to the same conclusion at the same time before they may enter a valid verdict. If it could be argued that a minority juror’s decision to join the majority gives rise to an inference of bias, then in almost any case where the jury deliberated for any length of time there may be grounds for discharge. Any delay in reaching a verdict may indicate that one of the jurors (at least) was not immediately convinced of the accused’s guilt or innocence and had to be convinced to change their mind.

It is the nature of a Black (Black v The Queen (1993) 179 CLR 44) direction that at the time it is given the jury may be approaching the point where they are not able to reach an agreement. In these circumstances a Black direction may result in a miscarriage of justice if it creates a real risk of the jury failing to give the issues free deliberation (Tangye at 551; R v Bisat (unreported, NSWCCA, 9 October 1995)).

There were two judgments in Black. The joint judgment of Mason CJ, Brennan, Dawson and McHugh JJ provided a form of direction which may be appropriate in many cases. In the present case the trial judge followed the form of that direction carefully. It is apparent that the form of words was intended to encourage agreement between jurors without putting pressure on them to change their views unless that change is voluntary, honest and genuine.

The issue in the present case is whether the trial judge erred by giving a Black direction when, because of the juror’s note, he knew that the minority juror was under pressure from the majority. The giving of the direction was a matter for his Honour’s discretion. His Honour had the advantage of observing the atmosphere of the trial and demeanour of the jury. The fact that the minority juror felt pressure from the other jurors was not surprising. It does not of itself arouse concerns of a miscarriage of justice. Any suggestion that the pressure which was being applied to the juror may have been improper (i.e. to the extent that the juror’s alleged breaches of the judge’s directions were being used as leverage against him or her), was addressed by his Honour’s directions. If there was a threat by other jurors to disclose the suggested breaches by the minority juror to the trial judge it would have lost all of its force when his Honour said, unequivocally, in open court that he was not concerned about them.

Burrell submitted that even if this analysis is correct, the juror would have been placed under further pressure because the trial judge revealed that the juror had, in effect, “dobbed” on the other jurors. This submission is directed to the relationship between the jurors in the jury room. Even if it had substance, and I do not believe it does, it invites this Court to speculate about matters about which inquiry cannot be made. As I have already indicated, the deliberations of the jurors are not matters for this Court. Antipathy between individuals, however caused, is, unfortunately, an unavoidable fact of life and must be expected to exist amongst jurors from time to time. It could not provide a reason to discharge the jury.

In the present case I am satisfied that it was appropriate for his Honour to give a Black direction. Although he had received information that the jury were having difficulty reaching agreement he was also informed that discussions were ongoing. Indeed, the essence of the communications from the juror was that debate was continuing. The juror was being asked to explain his or her position. There is no reason to believe that in the hours which followed, the debate did not resolve the remaining difficulties, resulting in a unanimous verdict.

Burrell contended that if it was correct to give a Black direction, his Honour should have modified the usual direction so that:

(a) the jury was told that such a direction was normal; and

(b) the fact of giving the direction or its terms should not be perceived as pressure exerted by the Court on any juror to compromise their decision nor be used by a majority to try and force a minority to compromise their position.

I am satisfied that his Honour’s direction adequately addressed the first matter. His Honour said: “Experience has shown that often juries are able to agree in the end if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and make a further attempt to reach a verdict before they may be discharged.”

In relation to the second matter, his Honour addressed the role of the individual juror in following terms:

“Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But, if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. Each of you has sworn that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light.

You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can consistently with your oath as a juror join in a verdict if you do not honestly and genuinely think that it is the correct one.”

In my opinion, his Honour’s directions were appropriately formulated.

Ground 9(c) alleged that the trial judge erred in failing to enquire at the end of the day of 5 June 2006 (having already given the Black direction) as to whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance. There is no substance to this ground. Having given the direction, it was a matter for his Honour to determine when it may be appropriate to enquire of the jury’s progress. Given the time the jury had already taken, the fact that he did not make enquiry as to their progress at the end of 5 June 2006 was of no moment.

Ground 9 entirely fails.

Ground 10 – in all the circumstances the verdicts were unsafe and unsatisfactory and cannot be supported having regard to the evidence

I have already reviewed in detail the evidence tendered at the trial and determined that Ground 1, which required an analysis of that evidence, fails. Although there are some features of the evidence upon which the Crown relied at the trial which in my opinion have little probative value, I am satisfied that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Burrell was guilty. I do not believe there is a significant possibility that an innocent man has been convicted: M v The Queen (1994) 181 CLR 497 at 492-4. I discussed the relevant principles in R v Habib (2005) NSWCCA 223 at [48]-[56].

The essential elements of the Crown case which lead me to this conclusion include the fact that at the relevant time Burrell was in serious financial difficulty and had lost the support of his former wife. He was unemployed with outgoings significantly in excess of his income. He asked for and then demanded money from Mr Buckley. Notwithstanding his impecunious state he had raised the possibility of relocating to Tasmania with the prospect of making a significant capital investment in a winery. His motivation for seeking to extort money was clearly established.

Burrell telephoned Mr Whelan on 7 April 1997 without any apparent reason. Although he was in need of employment he did not make any request for work on this occasion. However, during the course of the conversation Mr Whelan mentioned his regular absence from Sydney on Wednesdays because of business trips which he frequently made to Adelaide.

Burrell, without any prior arrangement or notice, visited the Whelan property on Wednesday 16 April 1997. In order to gain access to the property Burrell telephoned from a public phone rather than using his mobile phone. As it happened, Mrs Whelan was not alone at the property. Burrell spoke privately with her. When he had left, Mrs Whelan asked Ms Minton-Taylor to keep the visit secret saying that she would reveal the purpose of the visit in a few weeks. Burrell’s explanation for attending the Whelan property was that he assumed Mr Whelan – whom he wanted to ask for work – would be there. He said that he had contacted Mr Whelan’s office earlier that day and was told he was not at work. However, this evidence was not supported by evidence given by any of the staff at Mr Whelan’s business. Furthermore, any absence of Mr Whelan from his office was more likely to have been explained as being due to his travelling to Adelaide, which was consistent with the information Mr Whelan had previously given to Burrell.

Mrs Whelan told Mr Whelan she had an appointment at Parramatta on 6 May 1997. The diary entry which she made for that day was unusual, having simply marked 9.30 am without any purpose for that appointment. The couple were due to fly to Adelaide together that afternoon, a trip which Mrs Whelan was looking forward to.

Mrs Whelan was observed entering the car park of the Parkroyal Hotel and was recorded exiting on foot at 9.38:03 am. She never recovered her vehicle.

A vehicle which was consistent with the Pajero driven by Burrell was observed outside the Parkroyal Hotel at 9.01:24 am on that day. Thereafter a vehicle consistent with that vehicle was recorded pulling out from the kerb just to the west of the car park ramp at 9.38:46 am. It proceeded in an easterly direction down Phillip Street. In summary, the evidence discloses that Mrs Whelan arrived at the Parkroyal Hotel and at a time consistent with her leaving the car park and moving to the front of the hotel a vehicle consistent with the vehicle driven by Burrell was observed to leave the location. The vehicle which was observed had a dusty rear window with wiper marks consistent with Burrell’s vehicle when it was later examined.

Mr Whelan received a ransom letter on 7 May 1997 including instructions to leave a coded advertisement in The Daily Telegraph on 13 May 1997. During the search of Burrell’s property on 25 May 1997 police located two “dot point” notes in Burrell’s handwriting. Although the defence offered an alternative explanation, those notes are consistent with them being an outline of a kidnapping plan and the essential elements for the ransom letter.

During the search a Canon typewriter which the Crown alleged could have been used to type the ransom letter was also found. However, that typewriter did not have a daisy wheel consistent with the wheel used to type the ransom demand and a wheel which could have been used for this purpose was never located. The finding of the typewriter is not relevant to my conclusion.

A UBD street directory was also found in a Jaguar motor vehicle which was in Burrell’s possession. It had Phillip Street, Parramatta heavily highlighted and the address of the Parkroyal Hotel written in the margin of the map. There was also some highlighting in the same colour leading away from the Parkroyal Hotel in the general south-westerly direction. However, there was evidence of Burrell having previously attended the Parkroyal Hotel and to my mind the marking in the street directory was not of particular significance.

On 23 May 1997, after Burrell’s property was under police surveillance which would have been known to Burrell, a telephone call was made by a male from a phone booth outside the Empire Hotel in Goulburn at 9.21 am to Crown Equipment. The caller revealed a knowledge of the events relevant to the ransom letter. Burrell, who had reason to believe he had been followed, admitted using the telephone outside the Empire Hotel but said he had used it to call his solicitor for a second time that morning at about twenty or thirty minutes after 9 am. This account was not consistent with the records of calls kept by the solicitor’s office and, having regard to the proximity of the solicitor’s office to the telephone booth, a rational reason for the making of the call is difficult to identify. Although Burrell undoubtedly made a call to his solicitors that morning, it is most likely that this was done in order to provide a justification for the call which was made to Crown Equipment. The defence suggested at the trial that the phone call was in fact made by a policeman endeavouring to “frame” Burrell as the perpetrator of the crime. There was no evidence of any policeman who had made such a call.

Burrell suggested that having regard to the time at which he returned to his property that morning and then continued to his neighbours, he could not have made the telephone call to Crown Equipment at the time it was recorded. Burrell’s argument turned on a few minutes and was based upon estimates of the time at which Burrell was observed returning to his property. Although the telephone call may be accurately determined, the time of Burrell’s movements cannot be precisely determined.

The evidence establishing the death of Mrs Whelan was strong. She had a close relationship with her husband and her children. There is no reason for her to have disappeared of her own accord. She had made plans with her husband for the future including a prospective overseas holiday. She disappeared on 6 May 1997 and none of her bank accounts have since been accessed. There are no immigration or Medicare records which could support her having left the country or sought medical attention. Although there was evidence from persons who believe they may have seen Mrs Whelan since 6 May 1997, all of that evidence suffers from significant deficiencies and is unconvincing.

To my mind, although there is no one piece of evidence which inevitably leads to a conclusion of Burrell’s guilt, the combination of circumstances including his visit to the Whelan residence, the evidence relating to the Pajero, the dot point notes and the telephone call on 23 May 1997 are compelling.

I would dismiss this ground of appeal.

Application for leave to appeal against sentence

Burrell was sentenced on 9 August 2006 to life imprisonment upon the murder count to date from 23 December 2005 and upon the kidnapping count to a term of imprisonment of sixteen years with a non-parole period of twelve years both to date from 23 December 2005. It was submitted (Ground 11) that his Honour erred in finding there was no alternative to imposing a sentence of life imprisonment and that (Ground 12) in all the circumstances the sentence imposed for the murder conviction was manifestly excessive.

The maximum penalty for murder is life imprisonment (s 19A, Crimes Act 1900). Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 provides: “The court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

I considered and reviewed the authorities in relation to this section in the matter of Knight v R [2006] NSWCCA 292 at [23].

In the present case when sentencing Burrell his Honour said “in my opinion the defendant’s detailed planning, his persistence, the precautions he took to avoid detection, his motive, the cold desire to extort a large sum of money, and intent he harboured between 16 April 1997 at the latest and 6 May 1997 to kill Mrs Whelan, comprehend a level of culpability that is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence.”

There can be no doubt that the offence required detailed planning. Contact was made with the Whelan family, information obtained as to the movements of Mr Whelan and a visit made to the Whelan residence when Mr Whelan was unlikely to be present. Thereafter a plan was devised to take Mrs Whelan and ensure that no trace was left of her in Burrell’s vehicle and that her body was hidden. Critical to the trial judge’s conclusions in relation to sentence was the fact that Burrell, having abducted a person whom he knew and who knew him, there was no prospect that her life would be spared. Burrell’s plan inevitably involved killing Mrs Whelan.

In the present case Burrell accepted that, although premeditated and carried out for the purpose of financial gain, Burrell’s crime did not have the level of culpability so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life. It was submitted that these features did not constitute “particular features of very great heinousness.” It was emphasised that there was no evidence that Mrs Whelan was exposed to any period of fear and the trial judge did not make such a finding.

Burrell emphasised that there have been cases where, although offences of murder were premeditated and financial in motivation, a life sentence has not been imposed: see Willard [2005] NSWSC 402; Mrish (Hidden J, unreported, 13 December 1996); Chetcuti NSWCCA (unreported 24 December 1993).

However, there are other decisions of this Court which would point in a different direction. Contract killings have been found to fall in the worst category of case (see Cross, Grove J, unreported, 6 December 1996) where his Honour said that “a deliberate killing for payment would prima facie find its place in the worst category of case with the potential for the imposition of the maximum penalty.” Hunt CJ at CL in Kalejich (1997) 94 A Crim R 41 said that he agreed with this statement although recognising that there may be contract killings which in all of the circumstances would not attract the maximum penalty (at 52).

In my opinion the circumstances of the present case may be accurately described as a planned killing for financial gain. Although Burrell argued that his case should be distinguished from that of a contract killer, who kills in return for a payment or otherwise has no relationship with the victim, I am not persuaded this is a relevant distinction. This was not a case where an existing relationship was part of the motivation for the killing. Any relationship which Burrell had with the Whelan family had ceased some years previously. The motivation in making contact with them was apparently for no reason other than to pursue his plan to extract money, for which it was essential that Mrs Whelan be killed. Burrell’s actions can be equated with that of a contract killer where he both initiates the enterprise and carries out the ultimate murder (see R v Crofts (unreported) Supreme Court 6 December 1996; R v Smith [2000] NSWCCA 202 at [164] and [166]; R v King (1998) A Crim R 88 at 291 and 292; R v Lewis [2001] NSWCCA 448; R v Baker (unreported) CCA 20 September 1995; R v Glasby (2000) 115 A Crim R 465).

In these circumstances, I am satisfied that his Honour was correct in concluding that there was no alternative but to impose a life sentence. It was not excessive.

Decision

Although I would grant leave to appeal against sentence that appeal should be dismissed.

SULLY J: I agree with McClellan CJ at CL.

JAMES J: I agree with McClellan CJ at CL.