Burrell v The Queen [2008] HCA 34

HIGH COURT OF AUSTRALIA

GUMMOW ACJ

KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

Matters No S141/2008 & S142/2008

BRUCE BURRELL APPELLANT

AND

THE QUEEN RESPONDENT

Matters No S327/2007 & S328/2007

BRUCE BURRELL APPLICANT

AND

THE QUEEN RESPONDENT

Burrell v The Queen

[2008] HCA 34

31 July 2008

S141/2008 & S142/2008,

S327/2007 & S328/2007

ORDER

1. Dismiss so much of the appellant's applications for special leave to appeal to this Court on grounds other than those upon which the appeals to this Court are founded.

2. Appeals allowed.

3. Set aside the order of the Court of Criminal Appeal made on 23 March 2007.

4. Set aside the order of the Court of Criminal Appeal made on 16 March 2007.

5. Remit the appellant's appeal against conviction and his application for leave to appeal against sentence to the Court of Criminal Appeal for rehearing.

On appeal from the Supreme Court of New South Wales

Representation

I M Barker QC with D G Dalton SC for the appellant/applicant (instructed by Legal Aid Commission of NSW)

M G Sexton SC, Solicitor-General for the State of New South Wales with T L Smith for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Burrell v The Queen

Criminal law – Appeal and new trial – Orders dismissing appeals formally recorded – Reasons for judgment contained substantial factual errors – Whether superior court of record can reopen proceedings after its orders disposing appeals formally recorded – Whether power to reopen appeals – Finality of litigation – Procedural fairness.

Criminal Practice – Court of Criminal Appeal (NSW) – Appeal – Power to reopen proceedings after orders disposing of appeals formally recorded – Finality of litigation – Avoidance of injustice to parties – Procedural fairness.