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Gall v R; Gall v R

Gall v R; Gall v R

Case [2015] NSWCCA 69 20 April 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gall v R; Gall v R [2015] NSWCCA 69
Hearing dates: 20 February 2015
Decision date: 20 April 2015
Before: Hoeben CJ at CL at [1]
R A Hulme J at [249]
Davies J at [257]
Decision:
The orders in relation to Kevin Gall are as follows:
(1)In relation to the conviction appeal, grant leave to appeal in respect of grounds 1, 2 and 3 but dismiss the appeal.
(2)In relation to the application for leave to appeal against sentence, grant leave to appeal but dismiss the appeal.
The orders in relation to Bruce Gall are as follows:
(1)In relation to the conviction appeal, grant leave to appeal but dismiss the appeal.
(2)In relation to the application for leave to appeal against sentence, grant leave to appeal but dismiss the appeal.
Catchwords: CRIMINAL LAW – CONVICTION APPEAL – offence of murder – whether consciousness of guilt direction should have been given – whether direction should have been given concerning fact that co-offender did not give evidence – whether verdict was unreasonable. No occasion for consciousness of guilt direction – direction concerning fact that co-accused did not give evidence not necessary – conviction appeal dismissed – SENTENCE APPEAL – whether sentence imposed manifestly excessive – findings of fact open to sentencing judge – no error in assessment of objective seriousness – appropriate matters taken into account by way of mitigation – no error in accumulation of murder sentence and discharge of firearm sentence – CONVICTION APPEAL BY CO-OFFENDER – accessory after the fact to murder – whether direction as to elements of offence correct – error in direction identified – application of proviso – appeal dismissed – SENTENCE APPEAL – offences of accessory after the fact to murder, perverting the course of justice and possessing prohibited weapons – whether findings of fact open – whether offence of possessing a prohibited firearm was part of a planned or organised criminal activity – whether plea of guilty taken into account in sentence for possess a prohibited firearm – whether technical errors necessitated re-sentencing – whether error in cumulation of sentences – appeal against sentence dismissed.
Legislation Cited: Criminal Law Act 1967 (UK)
Cases Cited: Budrodeen v R [2014] NSWCCA 33
Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41
Cross v Regina(No 2) [2012] NSWCCA 234
Festa v R [2001] HCA 72; 208 CLR 593
Kaminic v R [2014] NSWCCA 116
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
House v R [1936] HCA 40; 55 CLR 499
McGeown v R [2014] NSWCCA 314
Nguyen v R [2013] HCA 32; 298 ALR 649
Mulato v Regina [2006] NSWCCA 282
R v Cook [2004] NSWCCA 52
R v DF [2005] NSWCCA 259
R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558
R v Hawken (1986) 27 A Crim R 32
R v Henare [2005] NSWCCA 366
R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gall v R; Gall v R

Details

AGLC: Gall v R [2015] NSWCCA 69
Case: [2015] NSWCCA 69
Decision Date: 20 April 2015

CaseChat Overview and Summary

Gall v R and Gall v R involved a murder conviction and sentence appeal, alongside a co-offender's conviction and sentence appeal. The primary appellant was convicted of murder and appealed both his conviction and sentence. His co-accused also appealed his conviction and sentence for being an accessory after the fact to murder, perverting the course of justice, and possessing prohibited weapons. The central legal issues included whether the trial judge should have provided a direction on the consciousness of guilt, the necessity of a direction concerning the co-offender's non-testimony, the reasonableness of the verdict, and the appropriateness of the sentences imposed.

The court found that there was no occasion for a consciousness of guilt direction, nor was it necessary to instruct the jury on the co-offender's silence. The verdict was deemed reasonable, and thus, the conviction appeal was dismissed. Regarding the sentence, the court concluded that the sentence was not manifestly excessive, the findings of fact were open to the sentencing judge, and the objective seriousness of the offence was appropriately assessed. The appeal against the sentence was also dismissed. For the co-offender, the court identified an error in the direction concerning the elements of the offence, but this was remedied by the proviso. Therefore, the appeal against the conviction was dismissed. The court further determined that the findings of fact were open, the offence of possessing a prohibited firearm was not part of a planned or organised criminal activity, the guilty plea was appropriately considered, and there were no technical errors necessitating re-sentencing. The sentence was deemed appropriate, and the appeal against it was dismissed.

The court's final orders were to dismiss both the conviction and sentence appeals of the primary appellant and the conviction appeal of the co-offender. The sentence appeal of the co-offender was also dismissed, with no orders for re-sentencing.

Orders