Gilbert v The Queen [2000] HCA 15 23 March 2000 B47/1999
ORDER
Appeal allowed.
Set aside the order of the Court of Appeal of Queensland made on 17 February 1998 and in place thereof order that:
(a) the appeal to that Court be allowed;
(b) the conviction be set aside; and
(c) there be a new trial.
On appeal from the Supreme Court of Queensland
Representation:
A J Glynn SC with A J Rafter for the appellant (instructed by Legal Aid Office (Queensland))
M J Byrne QC with C W Heaton for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Gilbert v The Queen
Criminal law – Murder – Appeal against conviction – Misdirection by trial judge – Failure to leave manslaughter to jury – Whether jury properly instructed would necessarily have returned verdict of guilty of murder – Whether no substantial miscarriage of justice actually occurred – Whether failure to leave manslaughter to jury constitutes substantial miscarriage of justice where jury's verdict of guilty of murder consistent only with satisfaction of elements of offence of murder.
Criminal Code (Q), ss 7(1), 8, 668E(1), 668E(1A).
GLEESON CJ AND GUMMOW J. Following a trial in the Supreme Court of Queensland, before Mackenzie J and a jury, the appellant was convicted of murder. He appealed against his conviction[1]. It was common ground in the Court of Appeal of Queensland, and in this Court, that there had been a wrong decision on a question of law, within the meaning of s 668E(1) of the Criminal Code (Q) ("the Code"), and a consequent misdirection of the jury. The question was whether the case was a proper one for the application of s 668E(1A), which provides that, notwithstanding such an error, an appeal may be dismissed if the Court of Appeal considers that no substantial miscarriage of justice has actually occurred. This is commonly referred to as the proviso. By majority, (Davies and McPherson JJA; Pincus JA dissenting), the Court of Appeal answered the question in the affirmative.
[1]R v W Gilbert unreported, Court of Appeal of Queensland, 17 February 1998.
The erroneous decision on a question of law, and misdirection, concerned the possibility that, on the view of the facts for which the defence contended, the appellant could be found guilty of manslaughter. This was the subject of a question asked by the jury. In conformity with the law as understood in Queensland at the time of the trial[2], the trial judge instructed the jury that there was no such possibility. Later, this Court gave its decision in R v Barlow[3]. It was common ground, in the Court of Appeal and in this Court that, consistently with Barlow, manslaughter should have been left to the jury…
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 Gilbert v The Queen
Sign in free to access the full text
Details
AGLC
Gilbert v The Queen [2000] HCA 15
Case
[2000] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Gilbert against his conviction for murder. The central dispute concerned whether the trial judge had erred by failing to leave the alternative verdict of manslaughter to the jury.
The High Court was required to determine whether the jury had been properly instructed, specifically whether the failure to leave manslaughter to the jury constituted a substantial miscarriage of justice. This involved considering whether, had the jury been properly instructed, they would necessarily have returned a verdict of guilty of murder, and whether the jury's actual verdict of guilty of murder was consistent only with the satisfaction of the elements of that offence.
The Court reasoned that a substantial miscarriage of justice occurs when a jury, properly instructed, would not necessarily have convicted the appellant of murder. In this instance, the Court found that there was a real possibility that the jury, if properly directed, might have found that the elements of murder were not satisfied, but that the elements of manslaughter were. Consequently, the failure to leave manslaughter to the jury was considered a substantial miscarriage of justice.
The appeal was allowed, the order of the Court of Appeal of Queensland was set aside, and a new trial was ordered.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the order of the Court of Appeal of Queensland made on 17 February 1998 and in place thereof order that: