REGINA v BURRELL [2004] NSWCCA 185

REGINA v BURRELL [2004] NSWCCA 185

Leave to appeal was refused because the Applicant did not identify legal error or a basis for appellate intervention in Wood CJ at CL's discretionary refusal of a stay. The Director could properly treat the later-considered Buckley evidence and other additional evidence as significant for the decision to re-present the indictment, so re-institution of the prosecution was not shown to be unfair or an abuse of process. The adverse publicity did not require a stay because it was open to conclude that the passage of time and appropriate directions would sufficiently protect the fairness of the trial.

Jurisdiction
Australia
Judgment Date
11 June 2004
Procedural Posture
Criminal Application for Leave to Appeal Under S5 F(3)(a) of the Criminal Appeal Act 1912 / Leave to Appeal From an Interlocutory Judgment Refusing an Application for a Stay of Prosecution for Kidnapping and Murder
Outcome
Leave to appeal refused.
Legal Topics
['murder' 'kidnapping' 'stay of Prosecution' 'abuse of Process' 'adverse Publicity' 'fair Trial' 'nolle Prosequi' 'fresh Evidence']
['criminal Law' 'criminal Procedure'] ['murder' 'kidnapping' 'stay of Prosecution' 'abuse of Process' 'adverse Publicity' 'fair Trial' 'nolle Prosequi' 'fresh Evidence']

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Procedural Posture

Criminal Application for Leave to Appeal Under S5 F(3)(a) of the Criminal Appeal Act 1912 / Leave to Appeal From an Interlocutory Judgment Refusing an Application for a Stay of Prosecution for Kidnapping and Murder

Legal Issues

  1. 1 ['Whether continuation or re-institution of the prosecution after the nolle prosequi constituted an abuse of process or breach of fairness absent sufficient additional evidence of guilt' 'Whether the Director of Public Prosecutions was precluded by the 18 April 2001 letter and published Guidelines from re-presenting the indictment' 'Whether additional evidence, particularly the evidence of Mr Buckley and the street directory annotation, affected the fairness or abuse of process analysis' 'Whether adverse publicity caused actual prejudice requiring a permanent or temporary stay' "Whether any error justified appellate intervention in Wood CJ at CL's discretionary refusal of a stay"]

Ratio Decidendi

Leave to appeal was refused because the Applicant did not identify legal error or a basis for appellate intervention in Wood CJ at CL's discretionary refusal of a stay. The Director could properly treat the later-considered Buckley evidence and other additional evidence as significant for the decision to re-present the indictment, so re-institution of the prosecution was not shown to be unfair or an abuse of process. The adverse publicity did not require a stay because it was open to conclude that the passage of time and appropriate directions would sufficiently protect the fairness of the trial.

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.' 'Order that there be no publication of the matters set out in pars [21]-[35] of this judgment until the conclusion of the last to occur of the prosecution of the Applicant on charges with respect to Mrs Davis and Mrs Whelan.' 'Direct that this judgment not be placed on the Supreme Court...