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Episode 115
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Substantive Law
Missing, Presumed Dead: The Case for Strong Circumstantial Evidence
Law as stated: 9 February 2024
What is this?
This episode was published and is accurate as at this date.
Mark Tedeschi AM KC joins David in the Curiosity Recording Room to tie together circumstantial evidence, and the role of the prosecution, from his own experience as former NSW Senior Crown Prosecutor. Touching on the convictions of Bruce Burrell, his book "Missing, Presumed Dead", and No Body, No Parole laws.
Substantive Law| What area(s) of law does this episode consider? | Evidence and the role of the prosecution. |
| Why is this topic relevant? | How do you secure a murder conviction when there is no direct or physical evidence of the victim’s death? The difficulty in successfully proving the elements of a murder charge beyond reasonable doubt in the absence of a body has led to the common misconception that it is impossible. The disappearance of Dorothy Davis and Kerry Wheelan in the 1990s resulted in two extraordinary criminal cases on circumstantial evidence which led to the successful prosecution of Bruce Burrell for the murder of both women – though no bodies were ever found. |
| What legislation is considered in this episode? | Evidence Act 1995 (NSW), s 138 |
| What cases are considered in this episode? | Shepherd v The Queen (1990) 170 CLR 573
Nguyen v The Queen (2020) 269 CLR 299
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| What are the main points? |
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| What are the practical takeaways? |
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DT = David Turner; MT = Mark Tedeschi; RD = Ross Davis
| 0:00:00 | DT | Hello and welcome to Hearsay The Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay The Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay The Legal Podcast is how we’re improving the experience of CPD. How do you secure a murder conviction when there’s no direct or physical evidence of the victim’s death? The difficulty in successfully proving the elements of a murder charge beyond reasonable doubt in the absence of a body has led to a common misconception that it’s impossible. Well, it’s difficult but not impossible. The disappearances of Dorothy Davis and Kerry Whelan in the 1990s resulted in two extraordinary criminal cases that led to the successful prosecution of Bruce Burrell for the murder of both women even though their bodies were never found, Bruce Burrell never revealing where they were. The Crown cases that resulted in Burrell’s convictions were built on circumstantial evidence and the trials demonstrated the strength of a strong circumstantial case. Now we have a very special guest in the recording room today to discuss this topic with us, Mark Tedeschi AM KC, a barrister at Wardell Chambers in Sydney. You may know him from a whole range of high profile prosecutions in his career as a Crown Prosecutor, the Ivan Milat backpacker murders, Keli Lane, the 2000 Fijian coup prosecutions. He’s now a barrister at Wardell Chambers, as I said, and he was for 20 years the senior Crown Prosecutor for New South Wales. Mark, thank you so much for joining me today on Hearsay! |
| MT | My pleasure. | |
| DT | Now, before we get into our topic for today, strong circumstantial cases, the coincidence evidence that led to Bruce Burrell’s prosecution, I wanted to talk to you a little bit about what you’re doing now at the private bar and also some of your pursuits outside of the law. Tell us the kind of work that you’re doing now that you’re no longer working for the Crown. | |
| MT | Look, I’m doing a lot of defence work, trials, sentences, appeals, bail applications, committals, any kind of defence work. I’m doing a little bit of prosecution work still. I’ve got one prosecution in the ACT and I’m also doing inquiries. In fact, this year I’ve been particularly busy with two really complex and important inquiries and I also do inquests.
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| DT | You had some pretty high-profile inquests work earlier in your career as well, of course, with the Balibo matter. | |
| MT | Yes, indeed. I was Counsel Assisting the coroner in the inquiry into the five deaths of some journalists at Balibo in East Timor during the Indonesian invasion of that island. | |
| DT | And you’re also a photographer and a published author. I read Missing, Presumed Dead to prepare for today and I read Murder at Myall Creek a few years ago as well. That’s a lot on a single plate. How do you keep it all balanced? | |
| MT | I think it’s really important to have a balanced life if you’re going to be a very active and successful professional person. I think it’s important to keep your sanity. It’s important to keep your balance and I found that doing photography and writing books was my way of keeping sane and I’ve got a number of other activities as well. I do a lot of bushwalking. I do some travel. At the moment, I’m also into native Australian bonsais. So I’ve got a lot of interests, yes. | |
| DT | After the interview, I want to ask you more about native Australian bonsais. I didn’t know that was a thing. That sounds very aesthetically pleasing. That sounds like a nice… | |
| MT | It is, actually. It’s very pleasing. | |
| DT | Like a flowering gum? | |
| MT | Look, some of them are native orchids, but some of them are other types of Australian native plants, the ordinary sort that you would see in the bush. It’s very difficult, I can explain it to you. It’s more difficult than it would seem. | |
| DT | One more question about your activities outside the law. I want to ask a bit more about the photography because I think intuitively, we think of lawyers, especially advocates, I suppose, as talented with written and oral expression. Being an author makes sense. You’re articulating the stories from your career for a different audience, but still using those same skills of expression. Photography is an entirely different manner of expression, isn’t it?
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| MT | Look, it’s an entirely different creative process and you are absolutely right that my preferred medium of creativity is through the spoken and the written word. I feel very comfortable with both of them. It comes fairly easily to me. To express myself visually through photography is much more difficult. It uses what we euphemistically call the left side of the brain. It’s a completely different method of expression and I must admit that when I’m having exhibitions or doing other activities with my photography, I have to constantly resist the temptation to explain my photographs in words because that’s what comes to me so naturally. But it is a very important method of communicating with those who are viewing your photography and I find that it’s a particularly satisfying form of creativity. I mean, there are a whole lot of other creative things that I can’t do. I can’t sing, I can’t dance, I can’t play a musical instrument despite the fact that my son is a musician. So that only really left photography as an expressive art. But I also find with bonsai that it’s very creative.
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| DT | I think we’ve had a few episodes of the show this season talking about mental health for lawyers, especially aspiring or young lawyers, the importance of having balance in your professional career, of having interests outside of the law. And I think sometimes there’s this perception that making time for things outside of your career, that it’s a bit of a zero-sum game that by making time for those activities, you might not be spending so much time on developing as an advocate or developing as a lawyer. And it’s great to hear that you have such a rich set of interests outside of the law, notwithstanding having such a successful career in it.
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| MT | Look, I think it is really important to make space for those other activities. And the key to it is being able to pace yourself professionally. A lot of barristers can’t say, “No, I haven’t got time to do that brief“. They will squeeze matters in between and leave themselves no satisfactory preparation time, which means that it comes out of what would otherwise be their downtime. And I think that’s a mistake because it might maximise your income, but it leaves you with a very one-sided existence. And it doesn’t enable you to develop your other interests and the other sides of your personality. So I think it’s very important to pace yourself. I was particularly lucky. I was a Crown Prosecutor for 35 years. And I must admit that because of the very generous holidays that are provided for Crown Prosecutors, I was able to use those holidays to do my other activities like writing in particular.
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| DT | Okay, let’s get into our topic for the day, the strong circumstantial case, coincidence evidence, especially the Bruce Burrell case. Now, your book Missing, Presumed Dead, I mentioned it earlier, recounts these two cases, Kerry Whelan and Dorothy Davis, from your own perspective as the prosecutor prosecuting those matters. It’s pretty rare to see prosecutors writing cases about the matters that they’ve been involved in. And as we said at the top of the episode, you’ve had some pretty remarkable cases in your career that you haven’t written about. What motivated you to write about this case?
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| MT | Look, it’s the first of my four published books that is about one of my own cases. And you’re quite right that it’s very rare for a prosecutor in Australia to write about his or her own cases. I decided to write about this case for a number of reasons. Firstly, I thought it was extremely educational for the general reader. But it was also, I thought, educational for lawyers and law students with aspirations to become criminal lawyers because the two cases contained so many aspects about criminal investigations and criminal trials that are of importance to the criminal lawyer. So I was reticent at first about publishing a book about one of my own cases. I was a bit apprehensive that perhaps it would be frowned upon by my colleagues. But I must say that since the publication of the book, which is nearly two years ago now, there’s been nothing but positive comments made by members of the public, readers, and also members of the legal profession. I think that it was educational. And I chose that particular case for a number of reasons. Firstly, a lot of members of the public who are not lawyers think that a circumstantial case is inherently weaker than a direct evidence case. And I wanted to show them that’s not necessarily the case. In fact, you can have really strong circumstantial cases that are in many ways more powerful, more convincing than direct evidence cases. Another thing that you just mentioned earlier is that a lot of non-lawyers think that if you haven’t got a body, you can’t have a murder trial. And of course, these were two cases where the bodies were not found, as you said, and yet we were successful in both murder prosecutions. So I thought that was also important to demonstrate in the book. The other two aspects is that a lot of people hear about a criminal trial that takes three months and they think; “what on earth are the lawyers doing for three months?“. And I think that the book explains the incredible complexity of a sophisticated murder trial and why it can take three months quite easily. Both investigations were incredibly complex on the part of the police. And I describe in considerable detail the investigations that took place and how ultimately they were successful. I also decided that this was the case that I’d write about because I’m fascinated by narcissism. And Bruce Burrell was a classic narcissist. And I find it endlessly fascinating to try and understand how narcissists think and what motivates them and how they have this overdeveloped sense of self and a complete absence of empathy for other people and how they can go along leaving traces of evidence for the police to find later on and be completely oblivious of the fact that they’re engaging in seriously self-destructive conduct. So for all of those reasons, I decided to write Missing, Presumed Dead about the Bruce Burrell trials. And I’ve given numerous talks about the book and people find it endlessly fascinating.
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| DT | I mean, those characters, they are fascinating. I mean, Bruce Burrell is a repugnant but fascinating sort of character. And that narcissism comes through in the motives behind the two murders. Dorothy Davis had lent some money to Bruce Burrell and Kerry Whelan’s, I suppose, the result of a botched ransom attempt. But he was, for many years, highly functioning, I suppose, or moderately functioning human being in advertising and other pursuits.
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| MT | He was in advertising for many years, but he was a pretty woeful employee. And those people who did employ him very soon regretted it. He was very quarrelsome with his fellow employees. He was lazy. He was ineffective. So he wouldn’t hang on to jobs for very long. He had this insatiable belief that the universe owed him a living without much effort on his part. And he married at one stage and he was constantly expecting his wife to support him financially. It was all part of his sense of entitlement. His father was also providing financial support to him. And eventually, he got into such dire financial straits. And the death of Dorothy Davis, the murder of Dorothy Davis was because she had lent him a large sum of money. And she had the audacity to ask for the loan to be repaid. By the time of Kerry Whelan’s disappearance and death two years later, he was in such dire financial straits that he faced complete economic ruin. And he was aware that his former employer was quite a wealthy man. And he hatched this plot to kidnap his former employer’s wife for ransom.
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| DT | Now, you went through some of the reasons why you wrote the book to let non-lawyers know some of the things that there are misconceptions about in the Australian criminal justice system. But something that I enjoyed about missing presumed dead and that I enjoyed from the perspective of a lawyer was your own candidness about your personal feelings towards the case. You talk about in the book, the role of the prosecution, having a duty to present all evidence that can properly and fairly inform the jury of the guilt or otherwise of the accused. And we talk about this principle, I think it was said in Whitehorn, the prosecution will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards, which the law requires to be observed, and of helping to ensure the accused’s trial is a fair one. But you also say in the book that it’s impossible in the course of the investigation and preparation for the trial to not develop something of a bias towards the victims, the families of the victims, and the police who perform their very hard work in preparing the matter for trial. Tell me a bit more about that, about this balance between a common law and statutory duty to be detached and the reality that we find it very difficult, perhaps impossible to be completely detached from the cases that we take on, especially murder cases.
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| MT | Look, I think that as an advocate, one of course has contact with the people on the side that you’re representing. And when you’re a prosecutor, you have contact with the police and with the Crown witnesses. So you naturally develop a degree of empathy with them. But I think it’s really important, whichever side you’re on, either as a prosecutor or as a defense counsel, to maintain a degree of professional objectivity. I think you’re a better advocate when you maintain that objectivity and degree of skepticism, perhaps. As a prosecutor, one of your roles is to assist either victims or the relatives of deceased victims, to shepherd them through the process of the trial, to explain to them what’s happening, to warn them if there are going to be particularly difficult parts of the evidence so that they can make a decision whether to remain in court or not. So you do have an obligation towards victims and their families. The police sometimes think that you’re representing them. And it’s very important that you stress the fact that no, they’re your witnesses as a prosecutor. You’re not there representing them. You’re actually as a prosecutor representing the community of New South Wales, or if you’re a federal prosecutor, the community of Australia. Your task, your role, your duty is not the same as the police. And sometimes it’s been necessary in my career to very firmly express that to the police so that they’re not under a misapprehension. The book is not just written for non-lawyers. It was also written for criminal lawyers and aspiring criminal lawyers. And I go into some of the really intricate and delicate and sensitive decisions that have to be made in the course of a complex murder trial like that. One of the first that I describe in the book is the decision whether or not to seek a joint trial of both matters. And I explain in the book how I went about that. It was quite an unusual way of going about seeking to join the two murder trials together. Ultimately, the then chief judge at common law ruled that the trials had to be dealt with separately. And I explained the reasons for that. The decision then which matter to go first with, and we decided to go with the Kerry Whelan matter first for reasons that I explained. There were then a whole series of evidentiary rulings by various judges in the pretrial stage, excluding some evidence at the instigation of the defence, but allowing some other evidence in. And I attempt to explain why some of the pieces of evidence were excluded and some were allowed. It’s very difficult sometimes to know in advance what the ruling is going to be. But those rulings on the evidence can have a major impact on the course of the trial and the strength of the prosecution case. And then there were a lot of decisions to be made about how to approach the closing address, which is in a sense, I think one of the most important parts of a criminal trial from the point of view of a prosecutor and from the point of view of defence barrister as well. It’s the last thing that the jury hear before they get the judges summing up and then retire to consider their verdict. So it’s particularly important to bring all those strands of your case together in a way that will be understood and remembered by ordinary people on a jury.
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| DT | And I suppose on the topic of those difficult forensic decisions, and maybe linking back to our earlier conversation about the prosecutor’s duties, one of those difficult forensic decisions to make is whether or not to call a witness for the Crown case. The Crown v Nguyen is an example of a case that sort of sets out the line of when it’s permissible not to call a witness or when it might be necessary to call a witness and where the failure to call a witness can result in an unfair trial and a failure to discharge a prosecutor’s duties. | |
| TIP: The full citation of that decision is Nguyen v The Queen (2020) 269 CLR 299 or [2020] HCA 23. The unanimous decision of the Chief Justice Kiefel court reinforced the fundamental obligation of the prosecution to put its case fully and fairly. In particular issue was whether the prosecution’s obligation extended to tendering records of police interviews containing mixed statements. In Nguyen’s case, the prosecution had not done so. At [27], the Court noted that “the prosecution may not “pick and choose” between statements which it says bear out its case and those which do not”, before ultimately upholding the appeal.
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| DT | Can you tell us a little bit about what happened in that case and what it tells us about where the bright line is? Well, I suppose it’s less of a bright line and more of a fuzzy line, but where the fuzzy line is between calling or not calling a witness for the Crown case. | |
| MT | Look, it can be a fuzzy line. Basically, a prosecutor has a duty to call all witnesses that have evidence that’s relative to the matters in issue where the prosecutor has reason to accept that they’re doing their best to tell the truth. It’s irrelevant whether the evidence supports the Crown case or not, whether it supports the defence case or not. If the evidence is relevant, then it should be called. There are circumstances in which if a prosecutor comes to the conclusion that a witness is lying, then the prosecutor has some justification not to call that witness. But if it’s relevant evidence, the prosecutor needs to make that witness available to the defence so that the defence can call that witness. And in some situations, the prosecutor could even be required to call that witness so that the defence can cross-examine that witness and have more freedom, more latitude in the form of questioning. But there are other situations where I think there’s a duty on a prosecutor not to call a witness that’s inherently unreliable. And the one that comes to mind is a witness who was a forensic science expert in DNA technology who had provided a report on some very important DNA evidence in the Ivan Milat trial. And I looked at the report that this witness had prepared, and I could see that there were some mistakes in it. I could see that there was some ambiguity in it. So I called this witness in with my then junior, Dan Howard, and my then solicitor, Sarah Huggett. And we interviewed this witness, and I ultimately had no confidence at all that the witness was reliable, that the witness had the scientific discipline necessary to give the court confidence that his evidence about DNA was accurate and reliable. So ultimately, even though the witness’s evidence was really important to the prosecution case, we made the decision that we would not call that witness and notify the defence. And of course, they didn’t mind because the evidence was damaging to Ivan Milat. So I think there’s also an obligation for a prosecutor, particularly with expert witnesses, to make sure that you’re satisfied that the witness is reliable. That’s part of a prosecutor’s duty.
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| DT | I hadn’t really thought about it from that perspective, the obligation to not call a favourable witness if you’re concerned about reliability. I think we typically think about that duty through the lens of cases like the where the question is whether or not to call an unfavourable witness. Where that’s an expert witness, I suppose there’s an extra layer of difficulty there because you also have that challenge of passing or interpreting the expert aspects of that evidence. And that’s probably a lesson for our civil litigation listeners as well, who similarly have a challenge in whether or not to call an expert to give evidence after they’ve received that report and whether they then make that report available in discovery. Tell me a bit more about how you went about coming to the conclusion that you were confident in that expert’s evidence. Is it a challenge to identify that the expert lacks that requisite knowledge, that they lack that confidence in their findings? Is it a matter of how the report is drafted? Is it a matter of understanding the conclusion? Is it some scientific level?
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| MT | Very hard to give any general principle. It’s really just in each individual case. And in that particular case, I was just not satisfied that I could rely upon that witness’s evidence. And I thought to myself, how can the jury rely upon it if I can’t rely upon it? So I’m just not prepared to call him.
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| DT | On an earlier episode of the season, we spoke to some criminal defence solicitors on the topic of improperly obtained evidence and applications under section 138 of the Evidence Act. And we spoke about that primarily from the perspective of defence work, making applications for the exclusion of evidence, and the circumstances in which improperly obtained evidence might be admitted notwithstanding the manner in which it was obtained. I’d love to get your perspective on that from a prosecutor’s perspective. Why is it important that prosecution evidence is above reproach? And then I suppose the counterfactual to that is, in what circumstances would you be comfortable presenting evidence that has not been properly obtained where an application is made under section 138, for example?
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| MT | Look, what the law provides is that it’s a discretionary decision for the trial judge or the pretrial judge to make based upon countervailing forces of how serious is the misconduct or what has been done that would potentially render the evidence inadmissible by the police, because generally police action that we’re talking about, versus the probative value of the evidence. Let me give you a practical example from the first Bruce Burrell trial. It turned out in that trial that the police had a search warrant to search Bruce Burrell’s rural property called Hillydale in Bungonia near Goulburn that went for a week. Now, as it turned out, they were on the property for a little bit more than a week, so they actually had extended past the due date of the search warrant. So the trial judge had to make a decision. What’s the harm that’s been done? Was it done deliberately? That’s important. Is there some serious breach of the rights of the accused person versus what is the significance of the evidence that’s been discovered? And the trial judge really had no hesitation in that Bruce Burrell trial in deciding that the infringement of the rules and regulations was very minor, the significance of the evidence was great, so that the discretion was exercised in favour of the prosecution. Having been on the defence side for the last six years, I have to say that most times the discretion is exercised in favour of the Crown. So it’s rather frustrating on the defence side when you have a breach of protocol that you think is quite serious and yet the trial judge allows it in. It has to be something pretty serious and pretty deliberate and pretty malevolent for a trial judge to exclude evidence. I think that there’s a big gap in the law in New South Wales in terms of the right of an accused person in a sexual assault trial to elicit evidence of complaints made previously by the complainant about other sexual assaults. Now at the moment there’s an absolute prohibition on any sort of cross-examination of a complainant in a sexual assault case about any other acts or even allegations that aren’t directly related to the matter that’s being litigated in the trial. I think there should be a discretion because I’ve faced some situations where there have been some allegations made earlier by complainants that were clearly false, clearly made up, clearly malevolent and yet it was not something that could be raised in front of the jury to show that the complainant was an inherently unreliable complainant and had made false allegations in the past. And if one of the tasks of the jury is to assess the veracity of a complaint of sexual assault in the trial, surely if a complainant has a tendency to make false allegations on other occasions of similar sort of conduct, I would have thought that was highly relevant to the complainant’s credibility. But the law at the moment doesn’t allow a discretion in the trial judge and I think it’s really important that it should. In other states and territories of Australia there’s a discretion and I think it allows for a much fairer trial in sexual assault cases.
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| DT | What you’re saying is that in the same way that improperly obtained evidence that might have some prejudice for the accused, there is a utilitarian exercise about its probative value and therefore a discretion on the part of the judge to admit it. And I suppose, pausing there for a moment, I can see why given the values at play in a criminal trial, it does tend to be the case that discretion is exercised in favour of the Crown because you have this obligation to put everything that’s relevant before the tribunal of fact. And when you’re approaching that question from that perspective, it does seem to loom larger in the mind of the decision maker that, well, I can exclude this evidence because of some impropriety but that will result in the tribunal of fact not having all of the evidence before it. But you’re saying that in the same way that utilitarian consideration is available for the Crown, it should also be available for the accused to induce evidence in cross-examination.
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| MT | Exactly.
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| DT | Yes, in some way prejudicial to the complainant but may have a high degree of probative value.
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| MT | Correct. And that degree of probative value would need to be assessed by the trial judge before he or she allowed the cross-examination to take place. But at the moment, there’s no discretion. There’s one other aspect of a criminal trial that I think is unfortunate in New South Wales that I’m happy to mention if you’d like me to.
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| DT | Please. Yeah, while we’re on the topic.
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| MT | The law provides that the defence can do a full proper opening address at the commencement of the defence case. The law at the moment also provides the defence can do a very brief and circumscribed opening address after the Crown’s opening address. But it’s limited to identifying those matters that are not in issue and those matters that are in issue. Now from my experience over the last six years as a defence barrister, I think that most of the time it is more helpful to the jury to have a full opening address by the defence right at the beginning of the trial immediately after the Crown Prosecutor has opened. I don’t think that the defence should have the option of doing both. I think that the defence should have to make an election at the end of the Crown’s opening whether they’re going to do a full opening address then or whether they’re going to wait until the beginning of the defence case. And sometimes the defence will want to wait till the end of the prosecution case before they open. But there are quite a few trials that I’ve done where I’ve thought to myself, I would really like to give a full opening address now before the jury hears any evidence so they can understand where I’m going in my cross-examination of Crown witnesses. Because otherwise they’re going to think, well, what on earth is he talking about? We don’t understand what the relevance of his questioning is. So I think that the defence should have the option of doing that full opening address at the early stage if they so choose. But as I said, not to have the opportunity of doing both.
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| DT | I can certainly see how it might be difficult to understand the purpose or the conclusion to be drawn from a question in cross-examination if you don’t have a picture of the theory of the case. And I suppose the election that you ultimately make if you were permitted to make that election is; “do you want to wait to see how cross-examination goes in the Crown case before you articulate your theory of the case?“. Because it may be that something comes out that changes that forensic decision or it may be that something doesn’t come out on which you are relying and then you articulate your case. But if you otherwise are not going to be relying on those sorts of answers coming out of cross-examination in the Crown case, you might want to give that full context to the jury so that their – not to say that their minds are made up, we certainly hope that’s not the case – but that…
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| MT | They understand why they should keep an open mind about certain topics. Yes, that’s right. And what I often find is that when I do the limited opening address after the Crown opening, that the judge will remind me in front of the jury; “you realise of course that all you can do in this address is to identify what’s an issue and what’s not an issue. Yes, thank you very much. I am aware of that“. And I think you’re quite right that there are some cases where you do want to keep your powder dry. You don’t want to commit yourself to a case representing the defence. But there are other cases where you do want to identify a whole lot of things. And what I find is that there are many cases where I do the very limited opening address at the beginning of the evidence, just before the evidence starts. And then at the beginning of the defence case, I don’t do any opening at all. I might say something like, “well, the accused is going to give evidence,“ or, “the accused has denied his guilt in his record of interview,“ or something like that. But it might be a very brief, like, you know, 60-second opening, and I might have done something more wholesome earlier in the case.
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| DT | Let’s go back to our topic of circumstantial evidence. We were talking earlier about this common misconception that circumstantial evidence is weaker evidence, that a circumstantial case is a weaker case. And I noticed that even speaking about this interview coming up towards the tail end of last week, I was speaking to some of our colleagues here in the office who don’t come from a legal background. We were talking about the topic of the episode and that we would be talking about circumstantial evidence, and that we were going to be talking about the Bruce Burrell cases and his conviction through a strong circumstantial case. And these people are talking and saying, “really? He was convicted on circumstantial evidence? That’s concerning, isn’t it?“. And I explained, “well, that’s not necessarily a weak case“. And I talked about some of the examples or the archetypal examples of strong circumstantial cases. But who’s the culprit behind this misconception? Why do we have this continuing picture in the minds of the public, and I suppose even some professionals, that circumstantial evidence is weak evidence?
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| MT | I don’t know. I think to some degree, maybe the media are responsible. You often hear comments in the media, “it was just a circumstantial case”. It’s something that’s said from ignorance, a lack of experience and knowledge about the criminal justice system. Anybody who’s worked in criminal law would know that circumstantial cases can be immensely strong. Direct evidence, of course, is eyewitness evidence or an admission by an accused person. You might have somebody who is a direct witness to the commission of an offence, and it turns out that they’re inaccurate in what they’ve seen. Their memory is inaccurate. Their identification of a person might be suspect. So there are a whole lot of ways that direct evidence from eyewitnesses can be unreliable. As circumstantial cases, we have a whole lot of pieces of individual evidence that fit together like a jigsaw puzzle. And the analogy that I invariably give to juries, which a lot of barristers who are my juniors have since taken up so that now I believe it’s quite common for this analogy to be given, is in my opening address as a Crown Prosecutor, I would say to the jury that a circumstantial case is like doing a jigsaw puzzle, where each piece of evidence is a piece of the puzzle, and that what I’m trying to do during my opening address is to show them the complete picture on the box of the puzzle so that they will know where the individual pieces fit. And then I say, “look, at the end of the day, it’s almost inevitable that there are going to be some of the pieces that are missing, because it’s very rare in the real world to have the complete puzzle with every piece there and every piece in place. At the end of the day, even though there are some pieces missing, you might be able to look at the picture and say, yeah, that’s a picture of the Sydney Harbour Bridge. There might be some pieces missing, but I can clearly see it’s the Sydney Harbour Bridge”. And in the same way, one hopes that at the end of the case, the prosecutor is going to be able to say, “well, despite the fact that there are pieces missing or some pieces that are a bit uncertain or vague, that you can still see the complete picture. And the fact that there are pieces missing doesn’t alter the fact that that picture is very clear”.
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| DT | I remember that analogy from the book, actually. I remember that analogy of the jigsaw puzzle of the Sydney skyline, and can you recognise it as the Sydney skyline, even if there are a few pieces missing? And that’s an apt analogy for this circumstantial case, where you’re asking or inviting the jury to draw an inescapable inference. Maybe there are some pieces missing, but could it be anything else notwithstanding those pieces missing?
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| MT | One of the best examples, of course, is, I mean, you mentioned earlier about proving death. Obviously, if you have a body, it’s very easy to prove death. But if you don’t have a body, like in the two Bruce Burrell cases, you still, as a prosecutor, have to prove death beyond a reasonable doubt. So how do you prove death? Well, take, for example, the Kerry Whelan case. Here was a woman with a very vibrant and active life. She was in early middle age. She had three children whom she adored. She had a husband whom she adored. She had a brother whom she adored, and numerous other relatives. And she was very much liked and had a very extensive friendship group. She also had her own bank account with a very substantial amount of money in it. She had her own GP that she would occasionally see. And here’s a woman who, from one moment to the next, disappears off the face of the earth without any trace. So there’s no contact with any person that she knew, no contact with her family. Her daughter was due to have an operation shortly after her disappearance. She would never, ever miss that if she had any say in it. She had no access to her bank account. She didn’t use any of her credit cards. She had no access to any medical facilities or hospitals. She had not gone through customs to leave Australia. There was a whole lot of evidence that we had to lead to prove beyond a reasonable doubt that she must be deceased. And ultimately, you’re also mindful of the evidence of how she came to disappear. And we were able to prove that she came to disappear because she got into a car that could only have been Bruce Burrell’s car and that Bruce Burrell had a motive and an opportunity to murder her. And there was a whole lot of other evidence to implicate Bruce Burrell in the actual kidnapping and murder. So all of that evidence was probably way more than we needed to prove that she was deceased.
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| DT | I remember from the book the meticulousness of the evidence concerning her entering the car, the CCTV footage of the car from different angles in front of the casino…
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| MT | It was in front of the Park Royal Hotel in Parramatta.
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| DT | The Park Royal Hotel, yes. And then the possible routes that the vehicle could have taken, the ones that were marked in the street directory.
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| MT | Bruce Burrell’s directory.
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| DT | Yes, that was recovered in the search.
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| MT | That’s right.
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| DT | I suppose some of our listeners who listen to true crime podcasts might be familiar with the murder of Lynette Dawson, which is another prominent example of a, well, now a circumstantial case resulting in a prosecution and conviction. Although one that did not result in a prosecution or conviction for a very long time, I suppose because there was this live issue regarding whether Lynette Dawson had truly died. Some of our listeners might know that it was Chris Dawson’s long-held position that she had disappeared and abandoned her family, despite many of the things you described being exactly the same, that she had never touched her credit cards, that she had never contacted the two children whom she loved. What do you think, if anything, set that case apart from these cases? Why was a circumstantial case pursued and successfully prosecuted in this case, being Bruce Burrell’s case, and why did it take so long, on the other hand, with Chris Dawson?
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| MT | Look, firstly, I think we should say we’ve got to be careful about the Chris Dawson case because it’s still subject to an appeal. So I’ll be careful not to say anything about the strength of the prosecution case or anything like that. I think the difference is that in Kerry Whelan’s case, her family knew within 24 hours that she’d been kidnapped for ransom because they received a ransom note. Kidnappings for ransom are very rare in Australia, thankfully, and the police immediately became involved and it became a major investigation. And within a very short period of time, Bruce Burrell became the one and only suspect. So it was immediately investigated. I think from what I know from the media about the Chris Dawson case, his wife did disappear, but he provided various people with explanations and there was no official listing of her as a missing person for a long time. I think whilst people had suspicions that there was no police investigation for a very long time. It was only much, much later that the police became involved, whereas in Kerry Whelan’s case and indeed Dorothy Davis’s case, the police became involved immediately. In the Dorothy Davis case, the police did a very cursory investigation initially, interviewed Bruce Burrell, who provided an explanation for his movements, which they accepted without question, and then nothing further happened until two years later when the police became involved in the Kerry Whelan disappearance, as soon as they started focusing on Bruce Burrell, they realised that he had been the one and only suspect for the Dorothy Davis disappearance and they commenced a reinvestigation two years later of the Dorothy Davis disappearance and eventually proved that his account of his movements was in fact quite false.
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| DT | You’re quite right. That delay between discovering the disappearance and conducting that fulsome investigation. And as you said, in a circumstantial case, the volume of evidence of those pieces of the puzzle is significant. We just spoke about the meticulousness of the evidence, not only of Dorothy Davis and Kerry Whelan’s deaths, but also of their disappearance. And two years is quite a delay from 24 or 48 hours. But in the Dawson case, that was a significantly longer period of time before an investigation took place. And we should say, as you’ve correctly noted, Chris Dawson has been convicted, but he maintains his innocence and that conviction is the subject of an appeal. It’s presently on foot. I want to return to this analogy of the jigsaw puzzle. This idea that the jury might not have to be satisfied of every piece, but if they can recognise the picture, then they can make a finding that the accused is guilty. In the Bruce Burrell case, were there any pieces of the puzzle that you regarded as essential, that if the jury wasn’t satisfied of the presence of those pieces of evidence, then they just couldn’t convict?
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| MT | There are basically two types of circumstantial case. There’s what is loosely called the strands in a cable type of circumstantial case, in which each of the strands, when it’s added to the cable, makes that cable that much stronger. And if you lose one or two or even a number of strands, you still might have a cable that has enough strands in it to withstand being stretched and to maintain its integrity. That’s the first kind. The second kind, where you have what’s loosely called links in a chain type of circumstantial evidence. Where you have a links in a chain type of case, if you break one of those links, the whole chain is broken and the prosecution must fail. Now, in the Kerry Whelan murder trial, it was very much a strands in a cable type of case. And in such a case, the jury are told, look, you don’t look at each individual piece of evidence and ask yourself, does that on its own satisfy me beyond a reasonable doubt of the guilt of the accused? You look at all of the strands of evidence together and ask yourself that question. In the links in a chain type of case, which was the case in the Dorothy Davis murder prosecution of Bruce Burrell, it’s different. There was one piece of evidence in that trial that was so critical to the prosecution case that if the jury were not able to be satisfied of that piece of evidence beyond a reasonable doubt, then they couldn’t convict Bruce Burrell. That sort of direction by a trial judge to the jury is known as a Shepherd Direction from a case called Shepherd. | |
| TIP: The full citation of the decision that Mark has just mentioned is Shepherd v The Queen (1990) 170 CLR 573 or [1990] HCA 56. Shepherd was convicted of conspiring to import heroin into Australia. Special leave to appeal to the High Court was granted on one ground, and refused upon a number of others. In the words of Dawson J, the remaining ground was that “the trial judge erred in failing to direct the jury that, in so far as the prosecution case rested upon circumstantial evidence, they might only infer the applicant’s guilt where each fact upon which the inference was based was proved beyond reasonable doubt”. In the result, Shepherd’s appeal was dismissed unanimously. At paragraph 5 of Dawson J’s judgment, he writes “it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn.” | ||
| MT | And it’s a case in which the judge identifies for the jury that piece of evidence, which is so critical or sometimes a number of pieces of evidence that are so critical to the prosecution case that the jury have to be satisfied of that piece or those pieces of evidence beyond a reasonable doubt. Now, in the case of Dorothy Davis, that piece of evidence was this: Dorothy Davis left her home on foot to walk somewhere nearby because she was an elderly lady who was not able to walk that far. And when she left her home, she was never seen again. And the prosecution case was that she was walking around the block to where Bruce Burrell lived because we said he owed her money and he had somehow managed to convince her to walk to his place. Now, an essential part of the case was that as she left her home, she spoke to a carpenter who was doing some work on her house. And she said some things to him about where she was going. And what she said was she pointed in the direction of Bruce Burrell’s house and said, “I‘m heading over there to see a friend of mine, a female friend of mine who had cancer, who has recovered. She lost all of her hair during the treatment for cancer, but now she’s well again”. And we could prove that the only person that Dorothy Davis knew in that whole block or that whole suburb indeed, who fitted that description, was Bruce Burrell’s wife, Dallas. So that was really important evidence about where she was intending to go at that time. And without that evidence, we acknowledge we didn’t have a case. So the judge gave a Shepherd Direction to the jury about that particular piece of evidence. And once again, a comparison of those two trials is really instructive, both for non-lawyers and for criminal lawyers, about the difference between those two different categories of circumstantial case. | |
| DT | I’m absolutely stealing that analogy of links in a chain and strands in a cable. I think that’s really evocative. I can tell you’re an author. I’m curious about how you went about proving that Dorothy Davis knew only one person who had undergone chemotherapy and had lost her hair and lived in the suburb. How do you prove that?
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| MT | Interesting. We called members of her family as to who she knew in the area. And she had a very close contact with both her son and her daughter. We called some friends. And we also led evidence with the consent of the defense from the police about inquiries that they had made with her friends and associates about who she knew in the area. And we were able to get that evidence in even though it was hearsay. It was a convenient and quick way of summarising that evidence without having to call every single friend that she knew. I mean, she was a member of a club. I think it was a charity club, I think, if my memory serves me correctly, where she knew literally hundreds of people. We didn’t have to call hundreds of people. So we were permitted to call evidence from the officer in charge of the case that he was satisfied from the investigations that he’d conducted that the only person who fitted that description was Dallas Burrell. We of course called evidence from the carpenter about which direction she’d pointed in because he didn’t know what she was pointing at. But he was able to describe on a map standing outside her home which direction was she pointing it in, and it was exactly in the direction of Bruce Burrell’s house.
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| DT | Wow. Now, Bruce Burrell died in custody in 2016, I believe. And he died having never disclosed the location of Dorothy Davis or Kerry Whelan’s bodies. In October this year, so just a month ago at the time of recording, New South Wales enacted no body, no parole laws. Those largely reflect similar legislation in Queensland and Victoria. What’s your perspective on these laws? Because you had something to say about them towards the end of Missing, Presumed Dead.
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| MT | On the whole, I’m not in favour of that legislation for a number of reasons. And I think in order to explain my reasons, I need to explain why a person in custody like Bruce Burrell would not want to admit his guilt for such heinous crimes. The main reason is that most people, even those serving lengthy sentences like Bruce Burrell, have some person or persons on the outside who still believe in them. In relation to Bruce Burrell, he had some family members who still believed in him and had contact with him. And when you’re in custody with a lengthy sentence, particularly a life sentence like Bruce Burrell, those contacts with the outside world are critical. They are of extreme importance. Same with Ivan Milat. He still had some family members who supported him, some who were terribly down on him, but others who were supportive of him. And I think that in order to maintain those relationships with the outside world, and they might be few and far between, in order to maintain those relationships, those people will continue to deny their responsibility for those crimes no matter what. And I’m sure that that was the reason why Bruce Burrell refused to disclose where the bodies were that he’d disposed of. There was another reason with Bruce Burrell, that there was a very strong suspicion that he was involved in a third murder.
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| DT | Yes. And the suspected third murder did have to do with his disappointment over being unable to purchase the house in which the victim lived.
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| MT | That’s correct. It was a man by the name of Charlie Spears, and Bruce Burrell coveted his house and wanted to buy it from him. And Charlie’s wife was willing to sell, but Charlie, who was very elderly and disabled, was not willing to sell. And he disappeared off the face of the earth without trace a short time later.
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| DT | There was a suggestion that he had jumped from a cliff near his home, notwithstanding his mobility difficulties.
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| MT | Yes. When you look at those cliffs, you realise how impossible that would be because it’s not just a sheer cliff. It’s layered rocks. And if somebody with the disability that Charlie had jumped off the top rock, they’d just land on the rocks immediately below and their body would be found, or they probably wouldn’t even die. They’d probably just be injured. So yeah, that wasn’t realistic, but there was just no evidence to identify who may be responsible. And the police very quickly just discarded the disappearances, something that couldn’t be explained.
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| DT | Returning to the no body, no parole laws…
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| MT | There was another reason why I’m against that legislation is that it’s important in terms of maintaining a good order in the jail system for the parole system to operate. And if you ask Corrective Services, they’ll tell you that’s a very important part of getting people to behave in jail, particularly in the second half of their sentences. If you remove that possibility for a person, they’ve got no incentive to rehabilitate themselves. So I think it takes away that option of rehabilitation. When someone gets a life sentence, of course, it’s irrelevant. And I think that if you look at the states and territories where this law has been operating for some time, to my knowledge, I don’t think there’s ever been a case where a body has been found as a result of the operation of such a law. In fact, I can only think offhand of one case where a suspect disclosed the location of a body because a deal had been done that involved the Attorney General, I think of Victoria, that no charges would be maintained against that person if the person disclosed the whereabouts of the body.
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| DT | Wow. I suppose when an offender in an offence like this is considering whether or not to disclose information like that, there are many factors that they’re taking into account that rank above the operation of legislation like this.
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| MT | Correct.
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| DT | But I think that’s an interesting point that you make. We talk about this legislation as incentivising disclosure. We don’t talk about it as disincentivising good behaviour in prison, especially for someone serving a very long sentence. Mark, we’re nearly out of time. I’ve really enjoyed the conversation today. We’ve had a wide-ranging conversation about coincidence evidence, about some of the difficult forensic decisions in the Bruce Burrell case and others, about improperly obtained evidence and about the writing process as well. For some of our younger listeners, aspiring lawyers or new lawyers who want to get into criminal work, either on the defence side or even in prosecutions, do you have any tips for those young listeners on breaking into that part of the law in their careers?
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| MT | Look, if you can get a placement as either a law student or as a person who’s still qualifying for a full practising certificate with either the DPP or with Legal Aid or even with the Crown Solicitor’s Office, that’s a good entry into criminal law. In private practices, there are quite a few private practices, some of them quite small, maybe suburban or country practices, that do criminal work. If you can get any experience that way, even if you’re representing clients on PCA charges in the Local Court, if you can appear even in a case like that, it’s a good start. If you can get a permanent job in Legal Aid or in the DPP office, that’s fantastic. That’s probably the best experience you can have. And I know that one can progress through both of those offices to doing criminal trials. The other option, of course, is going to the bar, which can be a very lengthy and arduous process. To get criminal work doing District Court or Supreme Court trials really requires that you have some experience already. So the question is, how do you get that experience? Again, just doing Local Court work. I commenced my criminal experience by doing a committal. I was told it was going to take three weeks. It was a long time ago. I won’t tell you how long ago. I was told it was going to go for three weeks, and it went for three years.
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| DT | My goodness.
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| MT | A committal. So at the end of that…
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| DT | The committal went for three years… | |
| MT | The committal went for three years, yes. It involved 21 defendants, of whom I represented one. As it turned out, I think there was more evidence against my client than there was against the others. So I ended up playing a major role on it. At the end of it, people thought of me as a criminal lawyer, and so did I. I was hooked. I had changed my mind. instead of becoming a commercial lawyer. I wanted to become a criminal lawyer. It was about two years later that I became a Crown Prosecutor. | |
| DT | Wow. Well, thank you for those tips. The tip about the Crown Solicitor’s Office and other government agencies is a good one. I think law students, young lawyers often forget that the Crown Solicitor’s Office does a lot of regulatory prosecution work.
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| MT | Yep. There’s also the authorities that conduct prosecutions of different kinds, environmental prosecutions, regulatory prosecutions for counsel, for various statutory authorities. Some statutory authorities have solicitors that brief counsel to do their quasi-criminal work. So that’s also all good experience.
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| DT | Absolutely. Well, Mark Tedeschi, thank you so much for joining me today on Hearsay.
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| MT | Thank you very much. It’s a pleasure. | |
| RD | As always, you’ve been listening to Hearsay The Legal Podcast. I’d like to thank our guest today, Mark Tedeschi, for coming on the show. If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is, as you well know, self-assessed but we suggest this episode entitles you to claim a substantive unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay The Legal Podcast is brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Hearsay is recorded in Sydney on the lands of the Gadigal people of the Eora nation, and we would like to pay our respects to elders past and present. Thank you for listening and see you all on the next episode of Hearsay. |
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