Gilham v R - [2012] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gilham v R [2012] NSWCCA 131
Hearing dates: 28, 30 November 2011, 1 December 2011
Decision date: 25 June 2012
Before: The Court at [1]
McClellan CJ at CL at [647]
Fullerton J at [662]
Garling J at [677]
Decision:
1. Appeal upheld.
2. Convictions quashed.
3. Verdicts of acquittal entered on both counts

Catchwords:
CRIMINAL LAW - appeal - conviction - double jeopardy - incontrovertibility of verdict - whether conviction of applicant for murder of his parents controverted applicant's acquittal for murder of his brother - whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal - whether trial judge failed to instruct jury to give applicant "full benefit" of earlier acquittal - whether trial judge erred by not staying proceedings - rule against double jeopardy not infringed - trial judge's directions denied applicant full benefit of earlier acquittal.

CRIMINAL LAW - appeal - conviction - expert evidence - admissibility - relevance - prejudicial effect - whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant - whether probative value of evidence outweighed by prejudicial effect - probative value outweighed by prejudicial effect - evidence ought not to have been admitted - whether expert opinion evidence on similarity of pattern of stab wounds admissible - evidence of similarity admissible - opinion that similarity constituted an underlying pattern inadmissible - Crown Prosecutor's reliance on pattern of similarity amounted to coincidence reasoning - evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 - whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice - failure to call witness caused trial to miscarry - whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence - whether probative value of evidence outweighed by prejudicial effect - evidence admissible as expert opinion evidence - probative value outweighed prejudicial effect.

CRIMINAL LAW - appeal - conviction - whether Crown Prosecutor cross-examined applicant in improper manner - whether Crown Prosecutor addressed jury in an improper manner - whether Crown Prosecutor undermined directions of trial judge - aspects of Crown Prosecutor's conduct and address improper -no miscarriage of justice occassioned.

CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - circumstantial evidence - circumstantial evidence to be considered as a whole - doubt capable of being resolved by jury's advantage in seeing and hearing evidence of applicant - no reasonable doubt on independent assessment of evidence.

CRIMINAL LAW - new and fresh evidence - whether evidence available at time of trial - whether evidence credible, plausible or capable of belief - whether evidence likely to have caused jury to have entertained a reasonable doubt about guilt of applicant - new evidence concerning carbon monoxide likely to have caused jury to entertain a reasonable doubt.
CRIMINAL LAW - appeal - conviction - whether applicant should be acquitted or retried - discretionary considerations.
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Director of Public Prosecutions Act 1986
Evidence Act 1995
Legal Profession Act 2004
Cases Cited: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Burrell v R [2009] NSWCCA 193
Causevic v R [2008] NSWCCA 238; 190 A Crim R 416
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Director of Public Prosecutions v Shannon [1975] AC 717
Direction of Public Prosecutions (Nauru) v Fowler (1984) HCA 48; (1984) 153 CLR 317
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437
Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308
Gill v Walton (1991) 25 NSWLR 190
Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Justins v R [2010] NSWCCA 242; (2010) 204 A Crim R 315
Kanaan v R [2006] NSWCCA 109
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McCullough v R [1992] Tas R 43
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Anderson (1991) 53 A Crim R 421
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Arp [1998] 3 SCR 339
R v Bikic [2002] NSWCCA 227
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
R v Darby [1982] HCA 32; (1982) 148 CLR 668
R v Degnan [2001] 1 NZLR 280
R v Gibson [2002] NSWCCA 401
R v Gilham [2007] NSWSC 231; (2007) 190 A Crim R 303
R v Gilham [2009] NSWSC 138
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Grdic [1985] 1 SCR 810
R v Hilder (1997) 97 A Crim R 70
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Honeysett (1987) 10 NSWLR 638; (1987) 34 A Crim R 277
R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450
R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127
R v Murre [2001] NSWCCA 286
R v O'Donohue [2001] NSWCCA 458
R v Parkes [2003] NSWCCA 12; 147 A Crim R 450
R v Pernich (1991) 55 A Crim R 464
R v Perry (1990) 49 A Crim R 243
R v Ronen [2004] NSWSC 1298
R v Storey [1978] HCA 39; (1978) 140 CLR 364
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5
R v Z [2001] 2 AC 483
Ramsay v Watson [1961] HCA 65; 108 CLR 642
Randall v The Queen [2002] 1 WLR 2237
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Reid v The Queen [1980] 1 AC 343
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603
Velevski v R [2002] HCA 4; 76 ALJR 402
Vella v R (1990) 2 WAR 537
Ward v R (1981) 3 A Crim R 171
Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Jeffrey Gilham (Applicant)
Crown
Representation: Counsel:
C Steirn SC/P Barham (Applicant)
L Babb SC/N Noman (Crown)
Solicitors:
Paladin Law Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2006/2766
Decision under appeal

Jurisdiction:

9111

Citation:

R v Gilham [2009] NSWSC 138

Date of Decision:

2009-03-11 00:00:00

Before:

Howie J

File Number(s):

2006/2766

JUDGMENT

THE COURT: The applicant was convicted after trial of the murder of his parents. He appeals against his convictions and seeks leave to appeal against his sentence.

The Court is unanimous in its conclusions with respect to each of the grounds of appeal against conviction. However, we have reached different conclusions with respect to the appropriate orders. This judgment sets out our views in relation to the grounds of appeal. We have prepared and publish separate judgments in relation to the appropriate orders.

At or around 4 am on 28 August 1993, Mr Stephen Gilham and Mrs Helen Gilham were murdered in the home they occupied at Woronora with their two sons, Christopher, aged 25, and the applicant, Jeffrey, aged 23.

The family was highly respected in the community. Both Christopher and the applicant were well regarded by both friends and neighbours for their scholastic achievements, their generally exemplary behaviour and character, and their loving relationship with their parents. The applicant was gregarious and popular, with marked success as a yachtsman. He was apparently his father's favoured son. Christopher was more quiet and sensitive although not without a supportive circle of friends. He was a keen and successful fencer and a talented pianist.

The family home was built on a split level with the upper and lower floors connected by an internal spiral staircase. External stairs provided access through a garden to the Georges River.

A double carport and single garage were located at street level, which housed a yacht as well as the motor vehicle the applicant customarily drove and his father's motor vehicle. The upper level of the house was accessed via stairs from the street, which connected with a side deck (or wooden walkway) that extended the length of the house along the upper level to glass sliding doors through to a living area. A dining table was immediately to the left on entry, and in relatively close proximity, but further into the room, there was a piano. Mr and Mrs Gilham's bedroom was also on the upper level. A short hallway connected their bedroom to the living space. The upper level also housed the kitchen together with a second bedroom, formerly occupied by the applicant, and a computer room. Christopher's bedroom was on the lower level. The lower level also housed a billiard table and small kitchenette. A rear door opened from the laundry giving access to the garden.

The upper level was connected by external wooden stairs and a set of garden stairs to a boatshed, which the applicant used as his bedroom. An intercom system operated between the boatshed and the house.

Mr and Mrs Gilham both died from multiple stab wounds to the chest and back, after which a fire was lit on or near their bodies. It was accepted that the knife used to stab Mr and Mrs Gilham came from the kitchen in the main house. Mr Gilham sustained a total of 28 knife wounds of which 16 were to the front of the chest. Mrs Gilham sustained a total of 17 knife wounds of which 13 were to the front of the chest. Their badly burnt bodies were located on the upper floor of the house at approximately 4.54am, by fire officers who attended at 4.43am in response to a 000 call placed by a next door a neighbour at 4.34am, after the applicant alerted him both to the fire and the fact that his parents and his brother were dead. He said his brother killed his parents and set them alight and that he killed his brother.

Mr Gilham was found face down in the bedroom. Mrs Gilham was found lying on her back in the hallway outside the bedroom, close to a bookcase on the top shelf of which was located the intercom and a telephone and answering machine. Evidence at post-mortem confirmed that all wounds had the appearance of being haemorrhagic, which was suggestive of their infliction while the deceased were alive. The order of the infliction of the wounds could not be determined. Although the time of death could not be fixed with any precision, the evidence was that they both died within minutes of being attacked.

A short time after locating the bodies of Mr and Mrs Gilham, fire officers found Christopher's body on the lower level. He had sustained 17 knife wounds to the upper body, of which 14 were to the front of the chest. His wounds were also haemorrhagic. He was naked save for a towelling shave coat. His body was unaffected by the fire which had been set on the upper level. A knife was located beside his body. It was common ground that the knife had been used to inflict the wounds on each of the deceased.

On 29 August 1993 the applicant was charged with the murder of his brother. On 5 April 1995 he pleaded guilty to his manslaughter. The Crown accepted that plea upon the basis that it could not, as it was required to do, disprove that the applicant had been provoked into killing his brother upon discovering that Christopher had killed his parents. He was sentenced to 3 years imprisonment, which was deferred upon him entering into a bond to be of good behaviour for 5 years. That sentence was premised on the basis that Christopher had murdered the applicant's parents and that this conduct had provoked him to kill his brother.

In June 1995 the Coroner found that the deaths of Mr and Mrs Gilham were caused by stab wounds inflicted by Christopher.

Following a renewed police investigation in 1999 a second inquest was convened. That inquest was terminated in April 2000, the Deputy State Coroner having found that there was evidence capable of satisfying a jury that a known person (the applicant) had committed an indictable offence (the murder of his parents). In July 2000 the Director of Public Prosecutions notified the applicant of his decision not to prosecute, having concluded, on the available evidence, that there was no reasonable prospect of a conviction.

In May 2001 a private prosecution for murder was launched by the applicant's uncle. The following month those proceedings were taken over by the Director of Public Prosecutions pursuant to section 9 of the Director of Public Prosecutions Act 1986. The Director, as prosecutor, offered no evidence upon the information for murder and the applicant was discharged.

In October 2004 a third police investigation into the deaths of Mr and Mrs Gilham was commenced. In November 2005 a further brief of evidence was sent to the Director of Public Prosecutions seeking his advice as to whether there was sufficient evidence to charge the applicant with their murder.

On 21 February 2006 an ex officio indictment was filed in the Supreme Court charging the applicant with the murder of his parents. On 28 November 2008 a jury found the applicant guilty of murder and on 11 March 2009 he was sentenced to life imprisonment on each count.

The applicant appeals to this Court against his convictions and seeks leave to appeal against sentence.

The appeal against conviction relies upon 18 grounds, some of which allege error in the conduct of the trial and others which relate to evidence not led at trial and which the applicant submits has been productive of a miscarriage of justice. A further ground contends that the verdict is unreasonable and cannot be supported by the evidence. That ground requires an examination of the entirety of the evidence led at trial.

The Crown case at trial

Central to the Crown case were a number of related facts which the Crown Prosecutor submitted were proved by the evidence and which fixed a timeline within which the deceased were attacked and killed and the fire lit:

(a) Mr and Mrs Gilham, and Christopher, were attacked and died within five to ten minutes of 3.57am, that is, between 4.02 - 4.07am;

(b) the applicant knocked on his neighbour's door at approximately 4.30am to report the fire and the killings;

(d) fire officers arrived at the scene at 4.43am;

(e) the upstairs bedroom window blew under heat and pressure at about 4.45am;

(f) the fire was under control between two to four minutes after water was applied through the blown window, that is, between 4.47 and 4.49am; and

(g) the fire had been ignited 20-30 minutes before being brought under control. Accordingly, the fire had been lit at the earliest at 4.17am and at the latest at 4.29am, the most likely time being 4.22 - 4.23am.

The prosecutor submitted that the timing of this sequence of events proved beyond reasonable doubt that the applicant murdered his parents and that his account of seeing them dead and alight within a minute or so of his mother's call for help is a lie.

The evidence of the neighbours

The Crown alleged that within a period of five to ten minutes of 3.57am the applicant murdered his parents and then killed his brother. This time frame was fixed by the evidence of Ms Christine Shaw hearing what she described as a strange combination of two voices, in a "screaming-type conversation shouting at one another". Ms Shaw's house was built on a gradient on the opposite side of the road overlooking the Gilham house. She had woken at 3.40am and was in bed reading by 3.45am when she was alerted to the sound of the voices, one which she described as a man's voice, that reminded her of someone being struck by lightning, and one which she described as a very stressed high-pitched woman's voice speaking in a restraining tone, as if desperately trying to reason with the man. She was unable to make out any of the words. After a while she went to the window but was unable to see anything. The voices stopped while she was at the window. She estimated that the shouting lasted for about five minutes, possibly longer, before it stopped. She returned to bed and continued reading. She said a dog started barking when the conversation started and that it kept barking after the voices stopped.

Mr and Mrs Baker's house faced the Gilham house. They were stirred from sleep sometime between 4am and 4.15am by their dog barking, which continued on and off for about half an hour despite efforts to quieten him. They did not hear any raised voices. At about 4.30 Mr Baker got out of bed and went outside where he saw smoke rising from under the roof tiles of the Gilham house and a flickering in the side window. He told his wife to call the fire brigade.

Ms Shaw only became aware of the fire after the arrival of the emergency services. The fire brigade arrived at 4.43am. She was unable to fix with any certainty the interval between when the voices stopped and when she was alerted to the arrival of the fire brigade by lights and men talking. She variously described it as being between 10 minutes and 20 to 25 minutes.

It was the Crown case that the female voice Ms Shaw heard was Mrs Gilham defending herself from the applicant's violence after he had attacked his father in the bedroom with such brutality that he had no time to defend himself. It was the Crown case that the male voice was Mr Gilham in the throes of death. The Crown submitted that the applicant was a calculated killer who said nothing at all as he stabbed first his father and then his mother. It was also the Crown case that there was an interval of at least 20 minutes after the applicant killed his parents (and then his brother) before he raised the alarm, during which time he took steps to destroy any evidence that would or might point to him as the murderer. These steps included sourcing accelerant and setting fire to the house, washing himself to remove any evidence of his parents' blood transferred to him during the knife attack, and washing the knife to remove his fingerprints. The Crown case was that he also washed off the blood which would have transferred to him when he stabbed Christopher to death.

What the Crown relied upon as the 20-minute window of opportunity was fixed by reference to Ms Shaw's evidence and the evidence of Mr and Mrs Warner, who lived next door to the Gilham house.

Mr Warner gave evidence that he was woken up by two people arguing, which to his best recollection were two male voices. He conceded in cross-examination it may have been a man's voice and a woman's voice. He described them as being very angry, very heated and very loud. He said the conversation lasted 20, 30 or 40 seconds and that he went back to sleep. Although he looked at his alarm clock, he was not able to recall the time with any precision. He said that it was "three something". He agreed in cross-examination that he told investigating police that it was about 3.40-3.50am but accepted it could have been 3.57am.

He went back to sleep but was then woken by the applicant knocking on his front door. He gave evidence that when he opened the front door the applicant, who was dressed only in boxer shorts, seemed very agitated and mumbled something about ringing 000 and the house being on fire.

Access to the Warner property from the Gilham property was either from the street via a side gate or via the back lawn. There was no fence separating the rear of the properties and although there were pool gates they were always kept open. Mr Warner gave evidence that there was a hose at the rear of his house and he believed there was a tap at the boathouse on the Gilham property. He said that the side gate had a noisy latch which had woken him in the past and that he was confident that he would have woken if the applicant had entered via the gate from the street. It was the applicant's case that he left the burning house and went to the street and then immediately next door to the Warners'. It was the Crown case that the applicant had washed himself before entering the Warners' property from the rear.

Mr and Mrs Warner described the applicant as being very cold to the touch but neither wet nor sweaty. They said it had been raining and there was mist in the air. Neither of them gave evidence of observing any blood on him at that time although, while awaiting the arrival of emergency services and in the process comforting him after giving him both a sweater and a blanket to keep warm, they both gave evidence of seeing blood (or what looked like blood) on his foot and on the lower part of his left leg, which gave the appearance of being either washed or wiped or both. Mr Warner recalled seeing blood in the quick of the applicant's fingernail on either one or both hands. Mrs Warner did not remember observing anything on his hands or fingernails. Neither of them saw any residue of blood on their light-coloured leather settee or on the kitchen floor where the applicant had been sitting from time to time, or any smears of blood on the creamy white-coloured telephone which the applicant handled when speaking to the 000 operator.

Neither Mr nor Mrs Warner described the applicant as out of breath when he first arrived. Mr Warner described him as speaking in a disjointed fashion, saying things such as "They're all dead. He's killed them, set up them on fire" and "Mum and Dad are both dead. He's burnt them. I've killed him for what he did to them". Mrs Warner gave similar evidence. She said that the applicant was agitated but not crying.

Although the time that the applicant arrived at the front door of the Warners' home could not be fixed with absolute precision, Mr Warner gave evidence that no more than two to three minutes (five minutes at the most) passed between the applicant knocking on the door and the call being placed to 000. That call was logged at 4.34am. In cross-examination Mr Warner said that the applicant attempted to dial the number but was shaking and distressed and pacing about and could not manage to put his finger in the dial, so he placed the call for him. Mr Warner gave evidence that the 000 operator asked him if the applicant had been drinking, so he lent over and smelled the applicant's breath. He said that he smelled what he thought was the smell of kerosene and a smoky smell which could also have been on the applicant's hair. He said this was consistent with what he had smelled when he opened the front door.

Mr Warner said the applicant came to the phone when the operator asked to speak to him. The applicant was asked by the operator to explain what happened. He said his brother killed his parents. He said he walked through the door; that his mother had called him; that he saw his brother with a knife; that his parents were on fire; and that he killed his brother after chasing him down the stairs. He said he did not know why he chased his brother. The Crown case was that the applicant was feigning breathlessness when speaking with the operator to give the appearance of truth to the lie that after stabbing Christopher he had immediately run from the burning house to raise the alarm.

It was also the Crown case that other aspects of the applicant's conduct that morning were a deliberate attempt by him to deflect attention from himself or the fire, and to feign concern for his parents. In the interval between the end of the 000 call and the arrival of emergency services Mrs Warner gave the applicant a burgundy sweater which he cuddled into with his hands without putting on. She said he got onto the floor in the kitchen in a foetal position. Mrs Warner also gave him a blanket to put around his shoulders at some stage while he was on the kitchen floor. It was the applicant's case that any residue of Christopher's blood would likely have been wiped off onto the sweater or the blanket. Neither was seized by police. Although according to the Warners the applicant did not say very much from his foetal position, at one point he grabbed a fire extinguisher and said he was going to fight the fire. Mrs Warner took the fire extinguisher from him. It was the Crown case that this was a feigned act of concern.

The arrival of the fire officers

Fire officers from Sutherland fire station arrived at 4.43am. They were the first of the emergency services to arrive at the scene. They observed smoke issuing out of the eaves of the Gilham house. At 4.45am police and backup services were summoned.

Fire Officers Langdon and Polson, under the command of Fire Officer Lowder, entered the property from street level. The applicant was at the base of the stairs leading from the street. He was described as extremely agitated, emotionally distraught and largely incoherent. He was saying that his parents were inside and that they were dead. Polson's evidence was that the applicant appeared to be delirious and disoriented and that he was crying. From his momentary dealings with the applicant Polson said his hair looked slightly wet and although there had been rain that morning it was not raining when they arrived at the house. It was an agreed fact that between 9pm on 27 August and 9am on 28 August 1993 2mm of rain was recorded at 3am at Sydney airport (15 km from Woronora).

Langdon was instructed to take the applicant to the street. Lowder and Polson travelled along the side balcony to the rear of the house. Langdon wrapped a blanket around the applicant's shoulders and left him in the care of Mr Warner. He made no observation of smelling accelerant on the applicant.

After the arrival of the fire services Mr Baker saw the applicant with Mr Warner. He described him waving his arms around and mumbling in gibberish. Mrs Baker said he was jumping from side to side and running from side to side along the house. She said he had a blanket wrapped around him and was shaking uncontrollably and that he was being held by her husband and then by Mr Warner.

Officer Wright was the designated pump operator who was at the rear of the fire truck when Langdon brought the applicant from the house. He said that when the applicant was about a metre and a half away from him he smelled petrol on him. His evidence was that he was familiar with petrol and was able to distinguish it from kerosene and methylated spirits and to distinguish petrol from a smoky smell infused with another accelerant. After the fire was knocked down and he entered the house to extinguish any spot fires, he did not smell any accelerant. He described the applicant as highly agitated, unable to sit still, and standing up and sitting down, but not crying. He was in the applicant's company for two to four minutes.

Fire Officer Pelham, who arrived from the Menai fire station, gave evidence that on his arrival smoke and fire were coming from the roof of the house. He said he saw the applicant standing near the garage alone, dressed only in shorts, and that he was highly agitated. The applicant said to Pelham: "Don't go in there, somebody's got a knife". It was the Crown case that the applicant was attempting to deflect the Officer's attempts to assist with fighting the fire in the hope that the fire would obliterate all evidence of his having murdered his parents.

Senior Constable Sands was the first police officer to arrive at the scene at 4.50am. He saw the applicant sitting on the footpath with a blanket wrapped around his shoulders, apparently in Mr Warner's company. He did not speak with him.

As Lowder and Polson reached the sliding glass doors that opened from the upper floor to the external balcony, the rear bedroom window blew. This was about a minute and a half after they first arrived, that is, at or about 4.45am. Lowder opened the closed glass sliding doors but was unable to enter due to the excessive heat. The only light in the premises came from the fire. It was the Crown case that the applicant had closed the sliding doors as a method of accelerating or hiding the fire, which was inconsistent with his account to police that he left the house in a hurry to seek the assistance of his neighbours, leaving the door open.

The fire was attacked through the main bedroom window from which flames were shooting. The bedroom was blanketed with water. The fire was reduced to a moderate level within minutes, permitting fire officers to then crawl into the house with another hose to extinguish the fire seated in the vicinity of Mrs Gilham's body on the floor on the right-hand side or southern corner of the room. Officer Pelham relieved Lowder and Polson, who had been forced to retreat from the excessive heat. They were both singed from the flashover effect of cold water contacting with open flame.

Pelham gave evidence that when he entered the house it was very smoky and hot. He located Mrs Gilham's body first and then as he continued to search for and extinguish the fire he found Mr Gilham's body in the bedroom. Fire officers with breathing apparatus assisted. Polson found an axe in the bedroom parallel to the bed. By this time the smoke had cleared. He also found Christopher's body downstairs. It was the Crown case that the applicant had taken the axe with him to his parents' bedroom in case his plan to kill his parents by stabbing them was frustrated for some reason, or in the event that Christopher came up the stairs roused by their struggle.

Under instruction from Lowder, Langdon went downstairs with Polson and Senior Constable Sands to check the lower level of the house, which they accessed by kicking in the rear door at the lower level. Langdon gave evidence that the area inside was dark save for the reflected light of a spot fire which was still burning upstairs.

Christopher's body was lying adjacent to a pool table with a knife next to one of his arms and near his chest. The pool table was in a living area with an open kitchenette. A bathroom and laundry were also located there together with Christopher's bedroom. The bed showed evidence of having been slept in. Lowder directed that the area be set up as a crime scene in accordance with the established protocol that nothing was to be moved by fire fighters.

Langdon also gave evidence that there was smoke at the ceiling of the downstairs living area. However, because of the largely uncontroversial evidence at trial that the levels of carbon monoxide in the bodies of the deceased indicated that they were all dead when the fire was lit, his evidence concerning the extent to which smoke from the fire upstairs penetrated the downstairs area, either before the fire was effectively extinguished or in the course of fire being fought, was not the subject of any testing. The crime scene officer Detective Sergeant Horn gave evidence that when he arrived at the house at about 7.12am there was no sign of fire or heat/smoke damage in the downstairs area, although there was fire debris on the staircase and on the tiled floor.

The evidence at trial was that the concentration of carbon monoxide in the bodies of each of the deceased revealed on autopsy was within normal limits. This evidence was then relied upon by the Crown to establish that each of the three deceased were dead when the applicant lit the fire on the upper level on or near the bodies of his parents, with the intention of engulfing in flames the house along with the bodies of the deceased, thereby destroying the crime scene and any evidence that would, or might, have implicated him as the murderer.

Although the concentration of carbon monoxide in Christopher's blood at six per cent was significantly greater than that of his mother and father at four and three per cent respectively, it formed no part of the Crown case at trial that the greater concentration in Christopher's blood evidenced his proximity to the fire before he died. It was the Crown case that after stabbing his parents the applicant stabbed Christopher as he was coming up the stairs (probably in response to the same voices Ms Shaw heard or the Barkers' dog or both) and that the applicant then stabbed him repeatedly in the chest on the lower level as Christopher retreated back down the stairs, trying to escape from the attack, such that Christopher was at no time on the upper level. This was in direct conflict with the applicant's account to police, first given within an hour of the events, and his evidence at trial, that Christopher had killed his parents on the upper level and was in the process of setting fire to his mother (on one view of his evidence with his father already alight) as the applicant entered the house from the boatshed in response to his mother's cry for help over the intercom. On the applicant's account, Christopher was in direct proximity to the fire (and it must be assumed inhaling smoke) before the applicant chased him downstairs where he was killed.

The crime scene and forensics testing

A number of police officers, including Detective Sergeant Horn, gave evidence of their observations of Christopher's body in situ and the location of the knife. There was some controversy at the trial about the location of the knife, whether it had been moved, and the extent to which the water which had been used to extinguish the fire upstairs had contaminated the downstairs area, including the body of the deceased and his shaving coat, both before and after a tarpaulin was used to cover his body. This evidence will be referred to when considering whether the applicant has made good his challenge to the admissibility of expert evidence as to the likelihood of there being blood on the knife and whether water may have removed evidence of blood from the knife and of his parents' blood from Christopher's body.

There were no swabs taken from Christopher's body or from the knife. Of the 17 areas on Christopher's shave coat that were subjected to testing in November 1993 (each of which was chosen because it was an area not obviously related to the knife injuries Christopher sustained), only one had blood which could only have originated from Christopher. In the remaining 16 areas there was a HP type common to both Christopher and Mrs Gilham but which could not be further confirmed by blood type or further testing. There were no properties in the blood consistent with it being the blood of Mr Gilham. At the time of trial neither the shave coat nor the knife were available for DNA testing.

Swabs were taken from the tiled lower level near the steps that led to the bathroom/laundry; from near the spiral staircase; from the railing of the spiral staircase; from the cupboard door below the sink to the right of where Christopher's body was found; and from an upright ironing board above Christopher's body. Human blood, which forensic testing confirmed could only have originated from Christopher, was detected on each of these swabs.

Blood stain pattern analysis of the blood on the lower level around Christopher and on Christopher's body

A plan marked with generalised areas of bloodstaining, with particular focus on eight areas around Christopher's body, was prepared for the purposes of trial, using crime scene photos and videos and photogrammetry plans. This material was used for the purposes of eliciting evidence from three expert witnesses in bloodstain pattern analysis: Sergeant Reynolds, Mr Raymond and Dr Culliford.

The blood droplets on the railing of the staircase included transferred blood and projected blood, including castoff blood that occurs when an object with blood on it is in motion. Sgt Reynolds said the most likely cause of the droplets on the railing was the placing of a bloodstained hand onto the balustrade, causing the blood droplets to be flung off, which would also transfer blood in the same process. He gave evidence that the blood spots on the front of the cupboards and the top of the ironing board were most likely castoff stains caused by a bloodied hand moving through the air, or from the weapon which was being used to stab someone on the ground causing blood to move through the air.

The Crown experts also gave evidence concerning the likely source of blood spatters on Christopher's chin and face, and more controversially, blood staining on his right hand, inner wrist and forearm. These areas of staining were revealed in crime scene photographs, which it was agreed were generally of poor quality. The reliability of any analysis was further undermined by the contaminating effects of water. The low spatter numbers and shapes of the stains operated as other impediments to any reliable analysis.

In relation to the spatter patterns on Christopher's neck and chin, it was generally agreed that the blood could have come from his wounds, especially those high on his body, or from Christopher hitting a bloodied surface. It was agreed that it was less likely to be the blood of his parents (or either of them) transferred in the process of Christopher attacking them, although that could not be discounted entirely.

In the view of two of the Crown experts, the directional spatter stains on Christopher's inner wrist and forearm gave rise to a reasonable possibility that this staining occurred in the process of Christopher stabbing his parents, although it was impossible to be certain of the origin of any of the blood without it being typed. The other possible source of this blood pattern was the defence injuries to the tips of Christopher's fingers, one of which went through the webbing between his thumb and forefinger, effectively running up his arm. Blood from under Christopher's fingernails on his right hand was collected and taken to the division of analytical laboratories, but was never analysed.

Blood stain pattern analysis of the blood on the applicant

Swabs taken from the applicant's left shin and right hand of blood or what appeared to be blood were not suitable for identification purposes when tested in 1993. A swab taken from the applicant's right foot was submitted for DNA testing in 1998; however, even at that time, DNA testing was still in its infancy. With the proviso that the results were below the laboratory reportable level, the Crown's expert witness gave evidence that there were strong indications that the DNA could be Mrs Gilham's. He gave evidence that it was definitely not the blood of Christopher or Mr Gilham.

Sgt Reynolds analysed the photographs of blood on the applicant's right foot which, on the Crown case, originated from Mrs Gilham. He said that the bloodstain would not have been the result of walking or stepping in blood. He was of the view that there appeared to be four individual areas of bloodstaining within the composite bloodstain, with voided areas between them. He said this pattern was either the result of contact between the applicant's foot and an irregular surface with blood on it, or from a blood drop of sufficient volume to travel under the force of gravity, landing above the flow area and running down the side of the foot. Mr Raymond gave evidence that the bloodstaining was not blood spatter but that it was consistent with contact between the applicant's foot and a bloody surface at the level of his foot, be it bloodstained clothing or some part of a body with wet blood. He said the more likely scenario was that blood had dropped from above and then looped onto the applicant's foot.

Other items seized and/or submitted for forensic testing

Spectacles were found in the downstairs bathroom. It was accepted at trial that they belonged to Christopher to correct his myopia and mild astigmatism. The Crown relied upon this evidence to support the submission that it was unlikely that Christopher went upstairs in the dark without his spectacles, and dressed only in his shave coat, to kill his parents, as distinct from him being roused from sleep and emerging from his bedroom in a panic upon hearing his parents being attacked upstairs. Although a former flatmate and a former girlfriend attested to Christopher having his spectacles at his bedside because he needed them to move from the bedroom to the bathroom, his ophthalmic surgeon gave evidence that in 1992 Christopher would have been able to negotiate a familiar environment quite well and perform everyday tasks without his spectacles (including going upstairs, pulling out a cutlery drawer, identifying one knife from another and identifying his mother as opposed to his father) but that he would have benefited from wearing his spectacles to view anything farther away than an arm's length. He gave evidence that Christopher's corrected and uncorrected visual acuity was below average but not far below average.

An empty packet of 24 Panadol tablets, and two empty 12-tablet packets of Panadol, were found in a clothes basket inside the laundry on the lower level, together with an empty 20ml syringe packet, a 25ml syringe with a white substance in it, a needle packet, a smoked glass cup with a white substance in it, and a silver table knife with a white substance on it. Subsequent forensic testing revealed the presence of paracetamol in the syringe and in the cup. Crime scene officers also photographed the contents of a plastic bag on the bottom shelf of a bookshelf in Christopher's bedroom, which contained two syringes and other items.

The items from the clothes basket were tested for fingerprints in September 1993. At trial, the fingerprint officer who performed the testing gave evidence by reference to a fingerprint examination record (only some of which was written by him). He said the items were in a clean state, without smudges, partial fingerprints or portions of fingerprint ridges. He gave evidence that if these items had been handled in a normal way he would have expected to see latent indication of that handling and that the absence of that evidence suggested to him that either the prints (or partial prints) had been removed or the person handling the item was at pains to ensure that no latent prints were deposited. He agreed that there were no glove marks or wipe marks. He also agreed that where he recorded "nil identifiable ridge pattern located", this did not mean an item was absolutely clean. It was also consistent with someone having handled an item without leaving sufficient fingerprint marks in residue to be later identified. He also agreed that in a statement made months after the examination, in which he wrote "I examined the exhibits and found nothing of evidentiary value in respect of fingerprints", he was intending to report that there was nothing to enable him to positively identify or eliminate a person who might have handled the items.

It was the Crown case that the applicant had planted the Panadol and syringe and other items in the laundry basket near his brother's bedroom to suggest that they belonged to him, and to reinforce what the applicant had predetermined would be the case that he would mount against his brother. This case was that his brother had murdered their parents because he was in a disturbed mental state. Dr Lawrence gave evidence that an injection of Panadol paste would result in illness, and ultimately liver failure if left unchecked for a couple of days.

Police located a 25-litre jerry can containing a quantity of leaded/super petrol and a length of garden hose with freshly cut ends in the small brick alcove area at the front of the house. The car used by the applicant operated on leaded petrol whereas the car used by Mr Gilham operated on unleaded petrol. A longer piece of garden hose was found in the garage. That hose was connected at one end to a tap. The other end also appeared to be freshly cut. Another section of garden hose was partly concealed beneath the small yacht and trailer. The exposed end of that piece of hose also appeared to be freshly cut. The freshly cut ends physically matched and under microscopic examination were confirmed to have been made with a knife.

It was the Crown case that the applicant had attempted, without success, to siphon petrol from his car by sucking on a section of garden hose he cut with a knife in order to set fire to the house, but that he was forced to use mineral turpentine as a substitute. The failed siphoning exercise was said by the Crown to be the source of the petrol that Officer Wright smelled on the applicant and what Mr Warner smelled on his breath, thinking it was kerosene. Three samples of carpet from the upper level of the house were removed for testing. Each was confirmed to contain mineral turpentine or a flammable hydrocarbon liquid similar to mineral turpentine. No container of mineral turpentine was found. Evidence was led in the Crown case that light-weight plastic containers would be readily consumed in a fire without leaving any discernible trace.

The applicant's account to ambulance officers and arresting police at the scene - in particular his claim that Christopher had possession of the knife and that the applicant took it from him

The ambulance arrived 4.57am and police at 5am, by which time the applicant had been directed by fire fighters to stay clear of the house.

Ambulance Officer Maudsley spoke to the applicant and asked him what had happened. He said: "My brother killed my parents; he had a knife and set fire to them". When he was asked by Maudsley why his brother would kill his parents, the applicant said: "There had been a lot of arguments".

Maudsley was also present when the applicant was spoken to in the rear of the ambulance by Senior Constable Parsons. When Parsons asked the applicant what happened, he said:

"Was asleep. Mum called me, she was yelling... on the intercom. I came up, he was sitting there, said he'd killed them, he'd lit them and I think I might have killed Chris."

When she asked where Chris was, he said:

"In the lounge room."

When she asked where his parents were, he said:

"On fire near the front door."

When he was asked what happened next, he said:

"I think I killed him. He said he killed them and I think I stabbed him. He was holding the knife."

When the applicant was asked where he was, he said:

"[I] stabbed him in the lounge room and then he [Christopher] ran."

Maudsley recalled the applicant telling the police officer that he struggled with his brother and that after he stabbed him (Christopher) he went down the stairs. When the police officer left Maudsley asked the applicant how his brother had set fire to his parents (Maudsley having not detected the smell of petrol). The applicant said: "He just set fire to them". The officer prepared a contemporaneous note which included the following:

"He had initially heard his mother calling for help over the intercom, and when patient arrived parents were alight. Patient states brother had knife. A struggle occurred and he stabbed his brother and his brother went down the stairs."

The applicant's account to police in the ERISP and the walkthrough interview and, in particular, his claim that he picked up the knife

The applicant was taken into custody at the house. The following morning he was spoken to by the officer in charge, and he repeated that he had responded to a call from his mother via the intercom and that when he got to the house he was told by his brother that he had killed his parents and set them alight. He was asked what he did then, and said: "I picked up a knife off the floor and chased him and stabbed him and this was [in] the pool room". He told the police officer that he did not know why his brother had killed his parents. He said there had been some "pushing and shoving" between his father and his brother.

At 8.22 am on 28 August 1993 the applicant voluntarily participated in a lengthy electronically recorded interview (ERISP) and, later that afternoon, voluntarily participated in a walkthrough interview at his parents' home, which was recorded on a video camera. The walkthrough commenced in the boatshed where he reconstructed his movements from that point through to leaving the upper level of the house en route to the Warners' home via the street to raise the alarm. The police also invited him to identify the knife and his keys (which he did) and invited his response to their finding of the cut hose.

In the course of the ERISP the applicant said that he was unsure of what his mother was saying over the intercom, but that she said nothing to indicate to him that she was being assaulted. He said she was just yelling or screaming. He said he did not hear any voices in the background, or any commotion in the house as he rushed up the garden stairs to the upper level. He said that as he came into the house through the glass doors his brother set his mother alight by throwing a match at her or by putting the match to her. He said that when he was near his mother he saw his father was already alight on the bedroom floor, although he did not see his brother go into the bedroom or see him set light to his father. He said the fire spread quickly from his mother to his father. He said he could not smell any chemical or accelerant and could not explain why Mr Warner had smelled kerosene on his breath.

He said he made no attempt to put out the fire because he did not think of it. He said he did not know whether his parents were alive or dead, and did nothing to check whether they were alive, but that neither of them were moving. (The Crown submitted that there was ample opportunity for the applicant to put out the fire and that his failure to check on the condition of his parents is inexplicable.) The applicant also said that while there was nothing to prevent him from running from the house to raise the alarm or get help, or using the telephone which was located near the intercom, instead he picked up a knife which was near the piano and chased Christopher down the spiral staircase and stabbed him in the chest. He said that nothing was said by either of them at this time and that he had said nothing in response to his brother declaring that he had killed their parents when he first entered the house.

He said his brother was standing right next to the piano, about a metre from his mother's body, when he (the applicant) grabbed the knife. He said he could not remember holding the knife and that he did not know what he did with the knife after stabbing his brother with it. He said after stabbing him he went back upstairs, which was by that time full of smoke to the height of the top of the piano. He said he then left through the glass doors and went up to the street to his neighbours' house to raise the alarm. He said he did not know the time that had elapsed between stabbing Christopher and leaving the house.

He told police that after his girlfriend left he watched football on television with his parents. He said he was not sure what time he went to bed but it was before midnight. When questioned about the syringe and the Panadol paste found by police in the downstairs laundry, he said he had some syringes that he was going to use to build a model as part of his civil engineering course. He was unable to account for the paste. Professor Geoffery O'Loughlin, who supervised the applicant as part of his university degree in 1994, gave evidence for the Crown that the syringes and tubing had nothing to do with the particular project in respect of which the Professor supervised the applicant. However, the Professor conceded that the objects may have had something to do with an earlier project or a project with which the Professor was not involved.

During the walkthrough the applicant identified the intercom. He said that when he heard his mother's scream he got out of bed, pulled on his shorts, and left the boatshed. He said this took less than a minute. He said that he habitually locked the door of the boatshed on leaving and that he would have locked the door before he went up to the main house in response to his mother's cry, taking the keys with him in the pocket of his shorts. The applicant's keys were found by police on the table immediately inside the glass doors of the main house. In the walkthrough the applicant said he must have removed them from his shorts and placed them on the table as he entered the room. Police also located a pile of clothes belonging to the applicant near a lounge chair in the lounge room. The clothes and upper soles of the shoes were partially burned. The applicant's then girlfriend gave evidence that the applicant was wearing these clothes and shoes on the night of 27 August 1993.

It was the Crown case that the applicant's claim that he locked the boatshed and took the keys with him immediately after responding to his mother's cry, and that he left his clothes and shoes upstairs after showering before going down to the boatshed, was a lie. It was the Crown case that the applicant did not go to the boatshed on the evening of 26 August but remained in the house in preparation for the planned murder of his parents. The Crown submitted that he had expected that his clothes would be incinerated in the fire and the fact that they were later found exposed his lie.

In the process of the walkthrough he demonstrated the route he took from the boatshed through the garden stairs to the upper balcony. He said that as he ran up the stairs he did not hear any fighting or arguing. (Evidence was led in the Crown case that it would take 22 seconds to run from the boatshed to the glass sliding doors of the main house and, at a steady jog, 30 seconds.)

He said that when he walked into the house his brother, who was standing a few metres into the room near the piano, looked up at him and that, as he approached, his brother said that he had killed their parents. He said that by the time he crossed the room to where his brother was standing beside his mother she was "alight". He said his brother had lit a match and put it to his mother as he had walked to where his brother was standing. He said when he reached his mother her feet were alight. He said the fire then spread through the main bedroom to where his father was lying so that both his parents were alight very quickly. He did not enter the bedroom. He said the knife was on the floor below the seat of the piano and that he picked it up by which time his brother was heading to the stairs. He chased his brother downstairs. He said he did not know whether he stabbed his brother on the way down the stairs or when he got downstairs. He said he turned the light on, cornered his brother and stabbed him, and that his brother fell to the ground. He said he thought he kept stabbing him after that but could not recall how many times. He repeated that he did not know what he did with the knife. He then went back up the stairs to street level and went to his neighbours'.

The Crown relied upon the inconsistencies in the applicant's various accounts of how and where he obtained the knife in further support of the Crown case.

The applicant told police that the previous night he and his father had tried to siphon some petrol out of the car to use for the boat (which was apparently kept near the river) but it was the wrong kind of petrol. He said that was why there was very little petrol in the jerry can that was found by police. During the walkthrough the applicant told police where the jerry can had been left.

It was the Crown case that this was a lie the applicant told to conceal the fact that he had unsuccessfully attempted to siphon petrol from his car to set fire to the house, forcing him to use turpentine as an alternative. The Crown submitted that turpentine, by comparison with petrol, was relatively non-volatile. The Crown led evidence from a number of people who knew Mr Gilham to the effect that although it was likely that Mr Gilham would mix his own two-stroke fuel for his boat (perhaps using super unleaded petrol, although standard fuel was more often used), being a meticulous person he would be unlikely to cut up a garden hose to siphon petrol from a car to prepare the fuel, particularly when, according to one witness, Mr Gilham had a siphon pump readily available.

Evidence of activities in the Gilham household and family interaction on 27 August 1993 and the preceding weeks

Evidence bearing upon this issue came from witnesses called in the Crown case as well as witnesses called in the applicant's case and the applicant himself.

The applicant's high school friend, Wayne Nolan, gave evidence that he went with the applicant to Cronulla after 5pm on 27 August to check surfing conditions. He gave evidence that the applicant told him that Christopher had been acting strangely in that he "was going off at the drop of the hat", especially towards his father, and that "it's come to the push and shove stage between them". When Mr Nolan asked what the applicant thought the conflict was about, he said that it could have been over money because his brother wanted to buy a car.

Mr Nolan said that the applicant had mentioned the problem in his family more than once and that he was surprised to hear that Christopher was pushing and shoving Mr Gilham, as it seemed to him to be out of character. He said that the applicant seemed to him to be concerned by his brother's behaviour. He did not get the sense that the applicant was overly dramatising the problem. He said that the applicant refused an invitation to join him to watch a video that evening because he was expecting his father to return from golf and, given the way his brother had been behaving, he wanted to get home. Mr Nolan said he dropped the applicant off at his home at about 8pm with plans to go surfing the next afternoon.

The applicant's then girlfriend, Ms Moskos, gave evidence in the Crown case that on 27 August she arrived at her boyfriend's home unannounced. Since the applicant was not at home she sat with his parents in the lounge room. She said Christopher came out from the computer room and said hello while she was talking with Mr and Mrs Gilham. He then took his coffee back with him into the computer room. She said the applicant's mother telephoned Mr Nolan to tell the applicant that his girlfriend was waiting for him. He arrived about 30 minutes later wearing the clothes that were discovered by police on the floor on the upper level the day after the fire.

She said they shared a meal and then played pool downstairs before the applicant walked her to her car. She said that she was at the house for about two hours. As the applicant walked to the car he said to her:

"What am I to do about my brother? It's pretty serious. I've never seen him so psycho. He is pushing my father around. I don't know what to do."

She said that the applicant seemed genuinely concerned. She said the applicant had told her about Christopher pushing and shoving his father and his general unpleasantness on at least three other occasions.

She said that on one occasion about three weeks earlier the applicant told her that Christopher had been stomping around the house throwing things and was "going off" at his parents. About two weeks earlier, during a telephone conversation, the applicant told her that he was going to use the other phone (which she understood to be downstairs) because Christopher wanted to use the computer room upstairs and was "going off again". During the course of that conversation the applicant said:

"Wait, Dad and Chris are having an argument. Chris is being really weird lately. Him and Dad have been pushing and shoving each other."

She asked the applicant if he knew what the argument was about and he said no. She suggested that he listen to the conversation but he said, "I don't know what's going on but I think it's to do with money". She asked him what money and he said "I don't know ... if there is a fight I'll have to break it up". She said he kept stressing that his brother had "lost it". He asked her advice about what he should do. She suggested that he tell his brother to grow up and that they (he and his father) should talk like adults.

She gave evidence that there were no signs of aggression from any of the family members while she was at their home that evening. She said the applicant's mood was normal. He was casual, relaxed and friendly and she did not sense any friction or tension between him and his parents or his brother. She gave evidence that Christopher seemed a little edgy and, while he said hello when he came out of the computer room, he did not interact with her (although this was not unusual). She discerned some underlying tension between Christopher and his parents. She said that to her observation Christopher spent a lot of time on the computer and normally kept to himself. She also gave evidence that she did not hear the applicant talk with his father about petrol for a boat, nor did she hear any conversation about a planned boating trip with his father the next day, although it was not unusual for the applicant to be on a boat on weekends. She agreed in cross-examination that any talk about boats or plans involving boats would not have particularly interested her and she would be unlikely to have paid it any attention.

The applicant's evidence

The applicant gave evidence largely consistent with the account he gave to police at the scene, as elaborated upon in the ERISP and the walkthrough he participated in the following day.

In his evidence, however, he said that as he entered the house through the glass sliding doors and walked over to his mother, his brother was standing near the bottom half of her body, which was then ignited by Christopher, and that, on the approach, he (the applicant) could see the fire spreading. He also said he could at that time see his father's body alight on the floor of the bedroom and that the fire was spreading fast. He agreed that when he was interviewed he told police that when he looked from where his mother was lying and saw his father on the floor in the bedroom, there was no fire in that room. He said he was dazed when he was interviewed by police but that he was now sure that his father was alight, although he had only seen his brother ignite his mother. He denied that he was trying to convey to police that the fire had travelled so fast that there was nothing he could do to stop it, although he did agree that his impression was that the fire gathered speed and moved quickly. He accepted in cross-examination that when his mother called him from the boatshed, only minutes before he entered the house, he knew she needed help. He could not, however, account for why he said nothing to the effect that he was there to help her, or to check to see whether she was injured but still alive. He said he did the wrong thing by not trying to put the fire out. He agreed that when Christopher said he killed their parents, even though it was out of character for him to have acted with such violence, he did not question him but simply assumed his parents were dead.

He said that when he chased Christopher he was not thinking that he had to kill him but rather that he had to "get him". He said he remembered chasing his brother and hitting him but did not remember stabbing him going down the stairs, or being in the pool room downstairs, although he accepted the evidence suggested that he stabbed his brother in the back on the way down the stairs. He agreed that he had stabbed him more times than was necessary to kill him. Although the red marks on his forearms observed by Dr Jennings at the police station after his arrest were consistent with him having struggled with his brother, and although the fact that the balls from the pool room table were found on the floor downstairs was also suggestive of a struggle, he said that he was unable to recall the details of any struggle.

He denied that the reason for the differing accounts he gave to emergency services officers, ambulance officers and police as to where the knife was when he came into the room was that he realised by the time he came to be formally interviewed by police that his brother could not have been holding a knife and lighting a match at the same time, and that he would need to change that aspect of his story to accommodate that fact. His evidence was that he did not remember seeing his brother with the knife but he did remember picking up the knife from the floor. He was unable to explain how he would have been able to see the knife on the floor in the dark. He was also unable to offer any explanation for why his brother would have left the knife on the floor knowing that their mother had called for his help on the intercom, or why his brother would run down the spiral staircase and not out of the house, making his escape by that route.

He said that as he was leaving the house after stabbing Christopher he could not remember any heat, but he did observe smoke. He said he had no difficulty breathing. He could not remember whether he looked towards his mother as he left to go to the Warners' house. He agreed that there were four phones in the house and that he had not used any of them to summon help. He said he went to the Warners' house via the front gate. He denied that he had washed himself or the knife before leaving or that he deliberately placed the knife close to his brother in order to implicate his brother in the murders of his parents. He was unable to account for why he was cold after running from a burning house. He denied that he was waiting outside the backyard area calmly and calculatedly in the night air for to the fire to take hold and to avoid being seen. He said he had no memory of anything that happened in the Warners' house.

As regards the clothes found by police in the upstairs lounge room, the applicant gave evidence that he would normally have a shower in the evening in the main bathroom of the main house, leaving his clothes behind because his mother did his laundry. He said he followed that routine on the night of 27 August and then went to the boatshed to sleep. He denied that he remained in the house to carry out a premeditated plan to kill his parents. He denied any knowledge of the syringes and the Panadol paste in the laundry basket downstairs. He denied carrying the axe to his father's bedroom (which on his account was usually kept on the lower level of the house, underneath his brother's bedroom) as a backup if the plan to stab his parents did not work.

The grounds of appeal

Ground 1: The trial judge erred in failing to stay proceedings.

Ground 2: The trial judge erred in failing to direct the jury so as to give full effect to the previous acquittal of the applicant for the murder of his brother.

Ground 3: The trial judge erred in allowing the Crown Prosecutor to controvert the previous acquittal of the accused for murdering his brother.

Ground 4: His Honour erred in permitting into evidence a fire demonstration conducted by the Crown's fire expert, Mr James Munday.

Ground 5: His Honour erred in allowing into evidence opinions drawn from fire demonstrations conducted by the Crown's fire expert, Mr James Munday.

Ground 6: His Honour erred by allowing evidence from Dr Culliford and Dr Cala regarding their expectations of how much blood should have been on the knife.

Ground 7: His Honour erred by allowing evidence from Dr Culliford regarding her expectation of much blood the applicant was likely to have on him.

Ground 8: His Honour erred by allowing evidence from Dr Culliford, Dr Cala and Dr Lawrence regarding the similarity of the pattern of stab wounds.

Ground 9: That his Honour erred in permitting the Crown Prosecutor to hold a knife before the jury and have the applicant demonstrate his dexterity with the knife.

Ground 10: The trial miscarried because the Crown Prosecutor engaged in cross-examination of the accused in an improper manner.

Ground 11: The trial miscarried because the Crown Prosecutor addressed the jury in a manner that undermined the effect of the directions his Honour gave concerning the need to scrutinise the fire demonstrations with great care.

Ground 12: The trial miscarried because the Crown Prosecutor addressed the jury in an improper manner.

Ground 13: That the verdict was unreasonable or cannot be supported by the evidence.

Ground 14: The applicant seeks to rely upon fresh evidence that the applicant's university timetable indicates that he would have been attending university on the afternoon that his mother left her place of employment two hours earlier than usual, indicating at that time that she was worried about one of her sons. The applicant seeks to rely upon fresh evidence from Steven Audet that the applicant attended a university lecture with him on the same Thursday afternoon. The corollary is that the son to whom the applicant's mother was referring was Christopher Gilham, not the applicant.

Ground 15: The applicant seeks to rely upon fresh evidence that there was a bloodied fingerprint on the intercom unit, thereby indicating that someone - who could only have been the now deceased mother of the applicant - had touched the intercom with her finger, which was consistent with the applicant's case at trial, and given contemporaneously to investigators, that she had contacted him by the intercom.

Ground 16: The applicant seeks to rely upon new evidence that the level of carbon monoxide in the lungs of the deceased Christopher Gilham indicates that he was alive and probably upstairs at the time of the fire.

Ground 17: The applicant seeks to rely upon new evidence that the fire is likely to have occurred in the manner described by the applicant and that the flames, far from being of a low height in the manner described in the evidence for the Crown by Mr Munday, were such as to prevent the applicant from any attempt to assist his mother.

Ground 18: The failure of the prosecutor to call Dr Cordner after the admission of the evidence of Dr Culliford, Dr Cala and Dr Lawrence regarding the similarity of the pattern of stab wounds, when viewed against the conduct of the trial taken as a whole, gave rise to a miscarriage of justice.

Under Ground 16 the applicant seeks to rely upon new evidence dealing with the level of carbon monoxide in Christopher's lungs at the time of his death as contradicting the Crown case and supporting his case. In light of evidence from various witnesses received on the appeal, this ground of appeal also deals with the levels of carbon monoxide in the bodies of Mr and Mrs Gilham. To the extent necessary, we would grant the applicant leave to amend this ground of appeal to accommodate the fact that the new evidence also concerns the levels of carbon monoxide in the bodies of his parents.

There are three grounds of appeal against sentence. However, having regard to our conclusion with respect to the appeal against conviction it is unnecessary for us to consider these grounds.

Ground 1: The trial judge erred in failing to stay proceedings.

Ground 2: The trial judge erred in failing to direct the jury so as to give full effect to the previous acquittal of the applicant for the murder of his brother.

Ground 3: The trial judge erred in allowing the Crown prosecutor to controvert the previous acquittal of the accused for murdering his brother.

The first three grounds of appeal deal with the question of whether the trial ought to have been stayed, or an acquittal ought to have been directed, because the conduct of the trial challenged, or else controverted, the conviction of the applicant for the manslaughter of his brother.

It is appropriate, as the parties did, to consider these grounds together. The first step is to understand the history of the prosecution of the applicant.

On 21 February 2006, the Director filed an ex officio indictment in the Supreme Court charging the applicant with the murder of his parents.

On 29 September 2006, the applicant sought, by notice of motion in the Supreme Court, a permanent stay of the proceedings against him upon the basis that it would be an abuse of process to permit the Crown to proceed against him on the charges of murder.

There were three grounds for that application. The first was that because of the delay in commencing proceedings, with accompanying prejudice to the applicant, it would be oppressive to subject him to a trial. The second was that it was not open to the Crown to seek from a jury verdicts that would be inconsistent with the applicant's conviction of manslaughter following his plea of guilty to that offence in 1995. The third ground was that it would be vexatious and oppressive to bring a further prosecution arising from the events of August 1993.

The notice of motion was heard by Howie J on 9-11 October 2006. On 21 March 2007, he delivered judgment, refusing to stay the proceedings: R v Gilham [2007] NSWSC 231; (2007) 190 A Crim R 303.

On 21 August 2007, an appeal to the Court of Criminal Appeal was heard against the refusal by Howie J to grant a stay. Judgment was delivered by this Court on 26 November 2007, dismissing the appeal: Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308.

On 8 February 2008, the High Court of Australia dismissed the applicant's application for special leave to appeal against the judgment of this Court of November 2007: Gilham v Regina [2008] HCA Trans 85. The Chief Justice expressly indicated that the applicant would not lose his right to raise the same issues in the event of his conviction after trial.

Pre-trial argument commenced on 4 February 2008 and the trial judge, Howie J, gave various rulings on evidentiary matters which he was asked to address in advance of the jury being empanelled. On 11 February 2008, a jury was empanelled to hear the trial. They were discharged on 18 April 2008 when they were unable to agree upon a verdict.

The applicant's second trial commenced on 13 October 2008. It was agreed in the course of this trial that rulings which had been given upon evidence in the first trial would be adopted without the need to re-argue the same issues. This, given the fact that the same trial judge was presiding, was a sensible and efficient way to manage the second trial.

The second trial commenced on 13 October 2008 and concluded on 28 November 2008, when the jury returned a verdict of guilty of both counts of murder. The jury had deliberated for eight days.

The applicant was remanded in custody. Submissions on sentence were made on 13 February 2009. On 11 March 2009, Howie J sentenced the applicant to life imprisonment on each of the charges of murder: R v Gilham [2009] NSWSC 138.

The foundation for the earlier appeal to this Court (Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308) was a submission that the trial judge erred in finding that, in instituting the proceedings, the Crown had not controverted the earlier verdict and had not, therefore, acted contrary to the rule against double jeopardy. Spigelman CJ resolved the appeal on a different basis to the other judges. His Honour held that where "the Crown accepts a plea to manslaughter in full discharge of an indictment for murder the appellant cannot be said to have been in jeopardy on the murder charge" (at [87]). The Chief Justice concluded that the evidence available to the prosecution could not support a conviction on the charge of murder (at [95]). It followed that the acquittal of the charge of murder "was not an acquittal which could attract the double jeopardy principle" (at [96]) and the breach of the incontrovertibility principle did not justify the grant of a permanent stay.

The other judges reached the same ultimate conclusion as the Chief Justice but their reasoning process differed. McClellan CJ at CL concluded that the applicant was "relevantly in jeopardy when acquitted of the murder of his brother" (at [197]). However, his Honour determined that although "the factual basis for both the applicant's acquittal for the murder of his brother and conviction for his manslaughter are in conflict with his prosecution for the murder of his parents" (at [209]) the prosecution for the murder of his parents would not be "an abuse of process" requiring the Court's intervention (at [222]).

Hulme J carried out his own analysis of the authorities and concluded that in the circumstances of the case and, in particular, having regard to the fact that the indictment alleged the applicant had murdered two persons, there was no principle of law which required that the trial be permanently stayed. Hidden and Latham JJ agreed with McClellan CJ at CL on these issues.

The applicant formally submitted that the earlier decision of this Court was wrong and renewed his right to pursue a further application for special leave.

At his trial, counsel for the applicant submitted that the trial judge should exclude all evidence which called into question the applicant's conviction for manslaughter and acquittal for the murder of Christopher. It was further submitted that the reasoning of the majority in this Court in the first appeal meant that the trial judge was required to direct the jury to acquit the applicant. The trial judge rejected these submissions, ruling that the appropriate warnings or directions, rulings on admissibility of evidence, and other orders would cure any possible prejudice and ensure a fair trial.

It is unnecessary to repeat the arguments put before this Court by which it was contended that the Court's previous decision was wrong. The novel issue in the present proceedings is the consequence for the applicant's trial of the previous decision with respect to the killing of Christopher.

The applicant submitted that he had been denied the full benefit of the acquittal for the murder of his brother: Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437. Because the issues in the trial involved a traversing of issues settled by the earlier verdict, it was submitted that the principle of res judicata would operate to prevent the trial proceeding: R v Storey [1978] HCA 39; (1978) 140 CLR 364 at 396.

There was debate at the trial as to the directions which the trial judge should give with respect to the prosecution of the applicant for the death of his brother.

The directions given by his Honour included the following:

"There have been a number of proceedings dealing with this matter over a long period of time. You will be aware by now that the killings occurred in 1993,15 years ago. There is a history as to why that is so, and you will learn about it. The history of it is relevant only as it relates to the evidence and the reliability of evidence. It has no other relevance in this matter. It may, however, explain why some evidence has been lost and is no longer available. It may explain why some people have given different evidence at different occasions. But that is the only relevance that the lengthy delay in this matter has. You should not be otherwise concerned at the delay or the history of the matter.

What happened is this: That the accused was charged initially with the murder of his brother. The three of them were killed: The mother, the father and brother. Three of them were stabbed to death. There was a fire set to the house which incinerated the mother and the father. The brother's body was downstairs. I think all of this was uncontroversial. Normally I know as much as the jury does about the trial and about the issues. But I was the trial judge in the earlier trial and therefore I have some knowledge of the matter and of the evidence that I expect to be called.

Anyway, the accused pleaded guilty to the manslaughter of his brother on the basis of provocation and was dealt with by this court. Over a long period of time there were questions as to whether or not he should be charged and dealt with, or charged with the murder of his mother and father, and ultimately the Crown decided that he ought to be.

Again, none of that has any relevance except as to the history of the matter. It explains to you why we are here in 2008 dealing with the matter in 1993 and, as I have said to you, it will explain to you why some evidence is no longer available. What you make of that we will talk about later. It may also explain why some witnesses have no memory any longer of the events and why they have to rely upon the statements they made back in 1993. Again, we will talk about that at a later stage when you are aware of what the evidence is.

whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590 (McHugh J));
the expense and length of a further trial (Reid at 350);
whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; (1981) A Crim R 5 at 367-68 (King CJ)); and
whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 at [27]).

The applicant relied heavily on the authority of this Court in Anderson to argue that a third trial would give the Crown an opportunity to reconstruct its case, which it cannot do. It is necessary to set out the facts of that case. The Crown had relied on the testimony of a witness whose evidence was proved during the course of the trial to be unreliable. The Crown Prosecutor, in his closing address, modified the Crown's case theory in support of the guilt of the accused such that it did not depend on the witness' evidence. On appeal, the Court of Criminal Appeal held that the appellant's convictions for murder were unsafe. The Court declined to order a retrial, partly on the basis that the prosecution ought not to have been given the opportunity to "patch up" its case against the appellant: at 453 (Gleeson CJ, Finlay J and Slattery AJ agreeing).

The applicant submitted that for the same reason a new trial was not ordered in Anderson, a new trial should not be ordered in this case. It was said that the Crown, by advancing a case theory that was based on a wrong view of the significance of the levels of carbon monoxide in the blood of the deceased, had bound itself to that case theory. The applicant said that a new trial cannot be ordered as a matter of fairness to him, as it would require the Crown to argue for a different timeframe and sequence of events than that presented at the previous trials. The applicant submitted that the position with regard to a new trial, based on a revised case theory, is no different from that which obtains when the Crown impermissibly attempts to change its case theory during the course of a trial. In each case, the accused has been denied the right to know of the case that he or she must meet, including the factual transaction that underlies the charge: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 (Dixon J).

Whether an acquittal should be ordered on the basis of the principle identified in Miller and applied in Anderson turns on what it means for the Crown to put on a "new case". In Taufahema, a majority comprising Gummow, Hayne, Heydon and Crennan JJ reviewed the authorities on this subject and concluded at [67] that "the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial". The plurality held that an order for a second trial was appropriate because the Crown proposed to rely on the same evidence as was called at the first trial, the only difference being that the prosecution would "seek to characterise the facts which that evidence may establish in a different way, but not a radically different way" (at [68]). Their Honours distinguished the case before them from Jiminez, where the Crown proposed to retry the accused in a case that would necessarily rely on "events different in time, place and quality": Taufahema at [65].

The question is whether the case theory on which the Crown proposes to rely at a third trial is substantially different from that which it relied on at the previous trials. This is largely a question of degree, to be answered in the light of the way in which the prosecution wishes to conduct a further trial: Taufahema at [54].

The Crown indicated that if the case were to run again, and if the Crown accepted Professor Penney's evidence, it would be forced to make certain concessions. The Crown would be forced to concede that Christopher was exposed to carbon monoxide emanating from the fire for two to four minutes before his death. The Crown would therefore have to acknowledge that Christopher was upstairs when or after the fire was lit, which is consistent with the applicant's exculpatory version of events. The Crown would also have to acknowledge that Mr and Mrs Gilham inhaled some carbon monoxide emanating from the fire before they died. This latter adjustment to the Crown case is less problematic than the former, as the bodies of Mr and Mrs Gilham were located at or near the seat of the fire. It is arguable that they inhaled the carbon monoxide after they were stabbed but before they finally died. But the contention that Christopher was exposed to carbon monoxide before his death marks a more significant change to the Crown case. As originally framed, the Crown case assumed that the applicant killed Christopher downstairs, away from the seat of the fire and before it was lit.

The proposed adjustments to the Crown case, while not insubstantial, are not so substantial as to preclude an order for a new trial. As in Taufahema, the Crown proposes to rely on the same evidence that was led at the previous trials, albeit with the qualifications that flow from Professor Penney's interpretation of that evidence. The Crown proposes to present the sequence and timing of events that the evidence is said to establish in a different way, but the difference is not so radical as to give the Crown the opportunity to make a new case. The basic factual premises that underlie the Crown case - that the applicant killed his parents and his brother and lit a fire to cover his tracks, all within a short space of time - will remain the same at any new trial. All that would change in light of Professor Penney's evidence is the order in which the events allegedly took place, the location of Christopher, and the time that elapsed between the killing of Christopher and the applicant's going next door (which, if Professor Penney's evidence is accepted, must be significantly shorter than the Crown argued at the trial). These changes would certainly pose problems for the Crown case. The applicant would no doubt direct the jury's attention to those problems. But the decisive consideration is that the applicant would not be asked at any new trial "to meet a significantly different case to that the jury were asked to consider": Parker at 520 (Dawson, Toohey and McHugh JJ). This is not a true instance of the Crown attempting to supplement or reconstruct its case. Finally, it is relevant that Professor Penney's evidence was not practicably available to the Crown or to the applicant at the time of the trial.

There remain other considerations that are relevant to the question whether a new trial should be ordered. The charge of murder is the most serious crime known to the law. The Court must give appropriate weight to the public interest in the due prosecution and conviction of persons accused of murder. As Spigelman CJ said in Justins v R [2010] NSWCCA 242; (2010) 204 A Crim R 315 at [120], "the criminal involvement of one person in the death of another raises a serious issue of moral culpability that ought be determined". The involvement of one person in the death of multiple others raises an even more serious issue of moral culpability. A further trial would not be unduly lengthy or expensive, given the seriousness of the charges. Nor is the time already served by the applicant a bar to a further prosecution, for the applicant has served only a relatively small part of his sentences of life imprisonment on each of the counts of murder: Taufahema at [55]. The gravity of the charges and the relatively short period of time served are powerful reasons for the Court to leave the decision to retry the applicant to the prosecutorial authorities, which are better placed to determine whether a further trial would be in the public interest: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [85] (Kirby J); Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [47]; Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 109 (McHugh J).

There are also considerations that tell against a new trial. The strength of the Crown case could be diminished by the version of events it may have to present at a new trial. If Professor Penney's evidence is accepted, that version of events must assume that Christopher was upstairs when or after the fire broke out. So framed, it would be consistent with the exculpatory version of events put forward by the applicant. Further considerations that militate against a new trial include the applicant's release from custody by order of this Court, as well as the prejudice that would be occasioned to the applicant by the lapse of time between the alleged offences and any new trial. It has been some 19 years since the offences allegedly took place. Some evidence that may assist in the applicant's defence is no longer available. These include Christopher's fingernail scrapings and shave coat, the murder weapon, samples from the bedding, the jerry can, the petrol sample, the garden hose, clothing recovered from Mr and Mrs Gilham, carpet samples, the intercom on which the bloody fingerprint is said to have appeared, Christopher's computer, and a set of keys. However, none of these items were available at either of the trials. The further lapse of time has not occasioned any additional prejudice by reason of the unavailability of these objects. I accept, however, that the recollections of the witnesses may have been further diminished by the passage of time, while those of others may have become entrenched.

It is also relevant to the exercise of the discretion that a new trial would be the third to which the applicant is subjected. In R v Honeysett (1987) 10 NSWLR 638; (1987) 34 A Crim R 277, Hunt J, with whom McInerney and Allen JJ agreed, said at 646 that the "decision whether a third trial should proceed even if ordered can often safely be left to the good sense of the Attorney-General and the Director of Public Prosecutions, but the fact that it would be a third trial will in some circumstances be sufficient to refuse an order for a third trial". The Court in Honeysett declined to order a new trial because it would be the appellant's third trial and because the appellant had already served the whole of the non-probation period that was imposed upon conviction. It was those two factors in combination that led the Court to order an acquittal: Honeysett at 647 (Hunt J). In circumstances more analogous to this case, this Court has declined to order a third trial where an appellant was twice tried for murder and had already been in custody for three years: Ward v R (1981) 3 A Crim R 171 at 179 (Street CJ), 195 (Lee J). Lee J said at 195: "A third trial in those circumstances should only be ordered if the court is convinced that no other course consistent with the interests of justice - meaning thereby the interests of the community and the interests of the accused - is open". The Court held that in view of the appellant's defence of diminished responsibility, the interests of justice were better served by substituting a verdict of manslaughter for the verdict of murder: Ward at 179 (Street CJ), 196 (Lee J). These cases, and others, suggest that the fact that a retrial would be a third trial is not of itself a bar to a further prosecution, but it may in conjunction with other considerations justify an acquittal: see also R v Murre [2001] NSWCCA 286 at [30]-[32] (Adams J, Giles JA and Hulme J agreeing); R v O'Donohue [2001] NSWCCA 458 at [36] (Bell J, Heydon JA and Dowd J agreeing).

There remains the issue of whether a third trial would be fair in the light of the considerable media attention and notoriety generated by the allegations against the applicant. This consideration, though not irrelevant, is not compelling enough on its own to warrant an acquittal. Brennan J noted in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 613 that "some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest". The law presumes that jurors will adjudicate fairly and impartially: Glennon at 614-615.

Weighing all of these considerations, I am of the view that the miscarriages of justice identified in the Court's judgment can more adequately be dealt with by an order for a new trial than by an order for an acquittal. The seriousness of the charges, the life sentences imposed, and the proportionally short period of time served by the applicant point to this being an appropriate case for the exercise of prosecutorial discretion. I am mindful that in considering whether or not to file a fresh indictment, the Director will give due weight to the various considerations discussed in the Court's judgment. No doubt he would carefully consider whether it is in the public interest to proceed with a third trial in circumstances where the applicant has already served time in custody and the Crown case may not be as strong as was previously thought.

Orders

The orders I would make are:

1. Appeal upheld;

2. Conviction for the murder of Helen Gilham quashed;

3. Conviction for the murder of Stephen Gilham quashed;

4. A new trial be ordered.

FULLERTON J: Whether there should be an order for a retrial or an acquittal in this case is to be decided by reference to the various factors to which McClellan CJ at CL has referred in his Honour's review of the authorities. As Dawson J said in King v The Queen (1986) 161 CLR 423 at 433, s 8(1) of the Criminal Appeal Act 1912 confers a broad discretion which is exercised in accordance with settled principles with the overriding consideration being whether the interests of justice require an order for a retrial.

In R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [54] a majority of the Court comprising Gummow, Hayne, Heydon and Crennan JJ held that the question whether there should be an order for a retrial in that case was to be approached in light of the way the prosecution wished to conduct its case. At [60] their Honours recognised that while the Crown should not be given the opportunity to make a new case the authorities offered little explicit guidance as to what is meant conceptually by "a new case which was not made at the first trial". After a review of four authorities (none of which were analogous to the present case) they concluded at [67] that "the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial".

It is not necessary to restate the competing arguments of counsel on the question whether a third trial will afford the Crown the opportunity of making a new case. I agree with McClellan CJ at CL that because the basic factual premises which underpin the Crown case remain the same, the applicant will not be asked at any retrial to meet a significantly or radically different case to that which the jury were invited to consider, despite the fact that the timing of critical events will need to be reformulated. The allegation that the applicant killed his parents in the family home within a relatively short time in the early morning of 28 August 1993 before attempting to destroy the evidence by setting fire to the house remains intact.

However because the new carbon monoxide evidence necessitates an adjustment to some of the factual allegations upon which the Crown case depended at trial, I am of the view that the strength of the Crown's circumstantial evidence case is weakened. In Anderson, the fact that the Crown case was said not to be strong weighed against the public interest considerations in having three counts of murder determined by a jury according to the applicable constitutional arrangement.

In this case the Crown will be forced to concede not only that Christopher was upstairs when or after the fire was lit and that he remained there for two to four minutes, but to abandon the argument that he was unlikely to be the killer because he was unable to negotiate his way in the dark and without his spectacles. While the carbon monoxide evidence does not have the same impact when considering the timing of the death of Mr Gilham and Mrs Gilham, it being possible that they inhaled the carbon monoxide after they had been stabbed by the applicant but before they finally died, given Dr Lawrence's evidence that they would have died very quickly, the Crown will be forced to abandon the case that the applicant killed his parents and his brother and then set about siphoning petrol from the car only settling on mineral turpentine because the siphoning was unsuccessful.

If the Crown were to continue to rely at any retrial upon the evidence of the cut hose and the smell of petrol on the applicant's breath and what were said to be his lies about the boat trip the following day, it seems to me that the case would need to be reformulated to contend that the attempt at siphoning the petrol was done before the killings and that the mineral turpentine was settled upon as an alternative when the siphoning was unsuccessful.

When invited on the appeal to identify the case it would advance were a retrial ordered, and to suggest how the carbon monoxide evidence might otherwise fit with the timing of other events upon which the Crown case was mounted at the trial, the Court was not provided with a detailed expose of the case that would be put beyond recognising the need for an adjustment to the Crown case theory. That is perhaps understandable given the range of issues that were dealt with on the appeal and, in particular, the Crown's decision during the hearing to make no challenge to Professor Penney's evidence. Even so, the Crown's failure to offer a detailed particularisation of the case it would open to the jury, in particular, a case accommodating Christopher being upstairs (unusually attired and without his spectacles) for two to four minutes while the fire was alight, and how it was that his parents also inhaled some smoke before they died, it is difficult to conclude other than that the new evidence weakens the Crown case. It must be accepted that Christopher's presence upstairs inhaling carbon monoxide is consistent with the exculpatory version of events the applicant gave to police at the time of the killings and to which he adhered in his evidence. It is also more closely allied to the objective evidence as to when the fire was likely to be lit relative to when he raised the alarm.

Not only has the carbon monoxide evidence undermined the Crown case theory in a material way but evidence of a pattern in the stab wounds suffered by each of the deceased was wrongly admitted as expert evidence and, for that reason, is not available to be used by the Crown at any retrial, further weakening the Crown case.

A third trial will unquestionably be an ordeal for the applicant and one that he would be subjected to through no fault of his own. Even were the new evidence ground as it concerns the issue of carbon monoxide not successful, the appeal would have been upheld on other grounds, including one at least that involved a finding of prosecutorial misconduct in the marshalling of the evidence to support the proposition that there was a pattern in the similarity in the knife wounds - a circumstance used by the Crown as the central motif in its case before the jury. In Anderson the most compelling factor which resulted in verdicts of acquittal being entered was that the trial miscarried due to the failure of the prosecuting authorities to satisfy itself of the integrity of the Crown case theory which was compounded by an unfairness in the way the Crown argued for a conviction.

We have been critical of the Crown Prosecutor in the present case in a number of respects in her conduct of the Crown case, and for her part in the decision not to call Professor Cordner which was productive of a miscarriage of justice. While not determinative of whether a retrial should be ordered, in my view her conduct is also a factor weighted against an order for a retrial. While I do not see that there is any unfairness in permitting the Crown to attempt to reformulate its case to account for the impact of Professor Penney's evidence, since both the applicant and the Crown proceeded at trial on the mistaken assumption that Dr Lawrence's evidence was correct, the same cannot be said of the Crown having a further opportunity to recast their case with a different argument, or potentially different argument, as to the admissibility of the evidence of similarity.

A further matter weighing against the order for a third trial is that before the ex officio indictment was presented in 2006 the applicant had been informed three times by the prosecuting authorities that it had determined not to prosecute him for the murder of his parents, first in September 1999 after the first inquest, then in July 2000 after the matter was referred to the Director of Public Prosecutions by the Coroner following the second inquest and then again the following year after the Director assumed conduct of the private prosecution. It appears likely that the evidence of similarity in the knife wounds played a very significant role in the ultimate decision to prosecute. I regard it as onerous to require the applicant to wait in anticipation of a further determination by the same prosecuting authority as to whether he will be prosecuted a third time.

The delay before any third trial could be convened in this Court, coupled with the fact that it has been almost 19 years since the offences allegedly took place and almost four years since the second trial, operates to the prejudice of the applicant. It is notorious that memories fade with the passage of time while the recollections of others may become entrenched. Other evidence has been lost or destroyed. While it is true that was the case at the earlier trials, it does not for that reason cease to be relevant as a discretionary consideration when considering whether an order for a retrial should be made in the interests of justice at this time.

Finally, the combined length of the first and second trials was 15 weeks with the second trial being shorter because the pre-trial rulings at the first trial were adopted for the purposes of the second trial. A third trial would not be expected to be of any greater length although with new evidence and the potential for different evidentiary rulings to be sought it is unlikely to be shorter. In addition, the expense of a third trial, with some expectation of the need to retain experts in an expanded range of disciplines in light of the new evidence led on the appeal, will not be inconsiderable.

I accept unreservedly that in the discharge of his statutory functions the Director of Public Prosecutions would carefully consider the available evidence, and the forensic consequences of the need to make appropriate adjustments to the Crown case before determining that the public interest dictated that the applicant be tried a third time. However, the question posed by the operation of s 8(1) the Criminal Appeal Act is different. After giving full weight to the fact the applicant is alleged to have murdered his parents and that after verdict he was sentenced to life imprisonment, and that the decision not to order a retrial will usurp the role and function of the Director of Public Prosecutions as the entity entrusted with the discretion to initiate and conduct of criminal prosecutions, for the reasons set out above, I am not persuaded that the interests of justice require that a new trial be ordered.

Accordingly, while I agree with Orders 1, 2 and 3 as proposed by McClellan CJ at CL I would direct that verdicts of acquittal be entered.

GARLING J: I agree with the first three orders proposed by McClellan CJ at CL. I respectfully differ from the terms of his proposed fourth order. Like Fullerton J, I would order that acquittals be entered with respect to both charges.

The final relief, upon which all of the members of the Court are not agreed, involves the exercise of a discretion provided by the terms of the sections of the Criminal Appeal Act 1912 which are set out in the judgment of Fullerton J. As the exercise of the discretion is one upon which the Court is not unanimous, it is appropriate for me to set out my reasons for favouring the result that the applicant should be acquitted of the murders of both of his parents.

The applicable authorities are adequately set out in the judgment of McClellan CJ at CL and so there is no need for me to repeat them.

In addition, I note that the discretion granted by the Criminal Appeal Act 1912 is not restricted by the terms of the section. The section does not impose any condition upon the exercise of the discretion. For example, it does not require that special or exceptional circumstances must be found to exist before the discretion can be exercised.

On the contrary, the width of the language of the statute will inevitably give rise to reasonable differences of opinion, which result from the call to an individual value judgment required by the unconfined nature of the discretion.

The authorities to which McClellan CJ at CL refers each record matters which may be relevant in the exercise of the discretion. It is appropriate to have regard to these authorities, in the knowledge that the matters to which they refer may each be relevant, but they do not constitute an exclusive list of the matters which may be relevant for consideration in any particular case. That is necessarily so because the ultimate question is whether the interests of justice in the particular case require the entry of a verdict of acquittal or else the ordering of a new trial.

My consideration commences with an acknowledgement that the murder charges which the applicant faces are of the most serious kind and involve two deaths. There is accordingly a real public interest in the due prosecution of the individual accused of those crimes. I also accept that it is desirable that a jury determines the guilt or innocence of the applicant, and that this Court does not usurp the ordinary function of the executive government. These are all matters which stand in favour of an exercise of the discretion to order a new trial.

But these matters including the weighty issue of the public interest are not matters which overrule all other considerations. Other considerations may decisively tell against ordering a new trial because if a new trial would be an instrument of injustice, then there is no public interest which mandates a trial in those circumstances.

I now turn to a consideration of these other matters.

An assessment must be made of the strength of the Crown case to be presented at any retrial. Such an assessment is made on the basis of all of the evidence which is now available, and not just the evidence which was before either of the two previous juries. In making that assessment, I take into account the way in which the Crown approached the evidence which was led before this Court on the appeal.

Of particular importance is the approach which the Crown took to the new evidence of Professor Penney about the significance of the carbon monoxide readings. Initially, it challenged that evidence and indicated that it proposed to adduce expert evidence to contradict it, but during the hearing of the appeal, it changed its approach and indicated, specifically, that it accepted Professor Penney's qualifications and did not wish to cross-examine him or lead any evidence in reply to the opinions which he expressed in his reports. In cross-examination of Dr Green, who expressed similar conclusions to Professor Penney, the Crown did not challenge his expert opinion on the carbon monoxide levels.

As well, the Crown led evidence from Dr Lawrence, the effect of which was that he accepted Professor Penney's expertise in the area of carbon monoxide readings in preference to his own limited learning on the subject. He then said that based on Professor Penney's opinion and report, he would need to change the evidence which he gave at trial. The details of this further evidence are to be found in the principal judgment.

In any new trial, having regard to this further evidence which, in my assessment, the Crown would be obliged to call, the essential elements of the Crown case as presented to the two previous juries could not be accepted by a jury. In simplified summary those features were: the deaths within a short time of the three members of the Gilham family at or about 4am, followed by a period of 15 minutes or more during which the applicant took elaborate steps to destroy the evidence of the crimes and to set up evidence implicating his brother, then to set alight the premises and proceed to wash himself and go next door seeking help.

As well, the additional evidence led on the appeal provides significant independent corroboration of the applicant's case. This evidence includes the opinion of Professor Penney and the further evidence of Dr Lawrence, which together provide objective material supporting the initial account given by the applicant to the investigating police, namely that his brother was upstairs in the house, and alive when the fire was being lit. There is other new evidence which suggests, unequivocally, that Mrs Gilham was sufficiently concerned about her relationship with Christopher to have told her workmates that it was necessary for her to leave work earlier than usual to return home and address the issue. This evidence provides corroboration of the applicant's expressed concerns about the behaviour of his brother to others in the period leading up to the murder of his parents. It was the Crown case that these concerns were fabricated by the applicant as part of his plan to divert attention from his involvement with the deaths. Such an allegation would now be difficult, if not impossible, to maintain.

As has been demonstrated in the principal judgment, the Crown case was, and remains, a circumstantial one. The Crown must exclude all reasonable hypotheses consistent with the applicant's innocence. The Crown case at the two earlier trials depended acutely on the time at which events were said to have occurred. As the Crown Prosecutor put to the jury in her closing submissions on a number of occasions: " ... time does not tell lies ...". As well, the submission on the timing of the events was relied upon to advance the contention that the account given by the applicant was implausible, and hence, unbelievable.

Any new Crown case cannot rely upon that timing construct. A new case theory will need to be advanced. The Crown, although invited so to do, did not really formulate such a theory in the course of the appeal. It is very difficult to see that a satisfactory theory can be now developed.

I have concluded that, having regard to the entirety of the new evidence, if the Crown was still able to mount a case against the applicant, it would be far less convincing than that mounted at the two earlier trials. Any new Crown case would be significantly weakened when compared with that presented at the earlier trials. I would not describe any such case as a strong one.

Any new trial would be held nearly 20 years after the murders occurred. This delay has not been caused by the applicant. It is a matter of common experience and commonsense that the lapse of such a long period will adversely affect the applicant's capacity to " ... wage a forensic contest in defence of [earlier] conduct ...": Gill v Walton (1991) 25 NSWLR 190 at 198 (Gleeson CJ).

It is inevitable that the passage of almost 20 years will affect the quality of the evidence at any new trial. Unless a witness has compiled contemporaneous notes of what they saw or heard, or else given a reasonably contemporaneous statement, then it is unlikely that any remaining recollection will be truly reliable. Adverse effects upon the accuracy of evidence and the consequent deterioration in the quality of justice are well recognised. Additionally, a number of the exhibits are no longer available. They have been disposed of. This includes the murder weapon, the items said to have been used by the applicant to siphon petrol which was said to be intended for use as an accelerant, clothing from all three of the deceased, carpet and bedding samples and other items. Importantly, having regard to the submissions made on appeal with regard to Ground 15, the intercom unit is no longer available for examination.

In my assessment, the quality of justice which will result from any new trial will be severely diminished. All of these matters tell against ordering a third trial.

There are issues which are personal to the applicant which must be weighed in the balance. He has already spent time in custody. However, having regard to the sentences which he received, I do not regard this as a factor of any real weight.

However, the conduct of the prosecuting authorities (which term I use to include the police, and the Director of Public Prosecutions) towards the applicant, with the inevitable personal anxieties which it has caused and the raising of false hopes which it has created, and which has continued over a lengthy period of time, is of real significance. It tells strongly against ordering any further trial. It is appropriate to enumerate these matters:

(20) First, in 1993, the prosecuting authorities charged him only with the murder of his brother and not with the murders of his parents. He was entitled to assume (and conduct his affairs accordingly), that, after the results of their investigations were concluded there had been a decision that he would not be charged with the murders of his parents, because the available evidence did not warrant such charges. There is no suggestion that by the standards of the time, the police investigation was anything other than thorough.

(21) Secondly, in 1995, in accepting the applicant's plea to manslaughter, the Crown did so because it could not disprove the applicant's account that his brother had murdered his parents. Put differently, the Crown did not have sufficient evidence to charge the applicant with the murders of his parents, and accordingly he was not charged. Any assumption which the applicant was entitled to make in 1993 was confirmed.

(22) Thirdly, in June 1995, a Coroner found on the available evidence, gathered by the police investigation, that Christopher Gilham had murdered his parents. The prosecution authorities did not seek to challenge this outcome, but accepted it.

(23) Fourthly, five years later in July 2000, after a second coronial inquest had been terminated because the Coroner formed the view that there was evidence capable of satisfying a jury that the applicant had committed the murders, the Director of Public Prosecutions informed the applicant that there would be no prosecution because there was no reasonable prospect of any conviction.

(24) Fifthly, about a year later in May 2001, the Director, having taken over a private prosecution against the applicant launched by his uncle, decided to terminate the prosecution, and offer no evidence on the matter when next before the Local Court. The applicant was discharged.

(25) Sixthly, it was over five years later that, in 2006, the Director served an ex-officio indictment upon the applicant charging him with the murders of his parents.

(26) Finally, now, a further six years has expired during which the applicant has faced two trials, one of which ended without a verdict because the jury could not agree, and the circumstances are that the result of the second trial must be set aside because a miscarriage of justice has occurred. In significant part, this miscarriage has been brought about by the manner in which the trial was conducted by the Crown. In addition, in the course of the judicial process, the applicant has brought two appeals in this Court, in one of which he has been successful, and one unsuccessful application in the High Court of Australia.

The trials which the applicant faced have not been short trials. Nor would they be expected to be having regard to the complex issues of fact and law involved in them. The first trial, including pre-trial argument, the trial itself and the period of jury deliberation occupied over ten weeks; the second trial and jury deliberation occupied over seven weeks. Any further trial is likely to be of a similar length, namely between seven and ten weeks. This raises afresh questions of significant additional public and private expense, the inconvenience to the public involved both as witnesses and jurors, and the impact which any further trial may have on the limited public resources which are available in the criminal justice system.

This Court is asked to exercise its discretion to order that the applicant be put on trial for a third time, on the basis of a Crown case theory which, although not yet even formulated, the Crown accepts must necessarily differ from the first two trials. Any new trial is on a Crown case which, in my assessment, is significantly weaker than the Crown case at the two previous trials has been. The fact that any new trial would be the third time to which the applicant has been subjected to the trial process is a matter which it is important to weigh in the balance.

I am satisfied that this is a wholly exceptional case. By reason of the combination of the factors to which I have referred above, but in particular, that in my opinion, having regard to the fact that any new Crown case would not be a strong one, and the history of the applicant's treatment at the hands of the prosecuting authorities throughout his involvement in the judicial system, intervention by this Court is justified because otherwise the continued operation of the criminal justice system upon the applicant would constitute a source of unacceptable oppression or unfairness.

Accordingly, I agree with the orders proposed by Fullerton J, including that verdicts of acquittal ought be entered in favour of the applicant on the two charges of murder.

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Decision last updated: 18 October 2013

Medium Neutral Citation:	Gilham v R [2012] NSWCCA 131
Hearing dates:	28, 30 November 2011, 1 December 2011
Decision date:	25 June 2012
Before:	The Court at [1] McClellan CJ at CL at [647] Fullerton J at [662] Garling J at [677]
Decision:	1. Appeal upheld. 2. Convictions quashed. 3. Verdicts of acquittal entered on both counts
Catchwords:	CRIMINAL LAW - appeal - conviction - double jeopardy - incontrovertibility of verdict - whether conviction of applicant for murder of his parents controverted applicant's acquittal for murder of his brother - whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal - whether trial judge failed to instruct jury to give applicant "full benefit" of earlier acquittal - whether trial judge erred by not staying proceedings - rule against double jeopardy not infringed - trial judge's directions denied applicant full benefit of earlier acquittal. CRIMINAL LAW - appeal - conviction - expert evidence - admissibility - relevance - prejudicial effect - whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant - whether probative value of evidence outweighed by prejudicial effect - probative value outweighed by prejudicial effect - evidence ought not to have been admitted - whether expert opinion evidence on similarity of pattern of stab wounds admissible - evidence of similarity admissible - opinion that similarity constituted an underlying pattern inadmissible - Crown Prosecutor's reliance on pattern of similarity amounted to coincidence reasoning - evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 - whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice - failure to call witness caused trial to miscarry - whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence - whether probative value of evidence outweighed by prejudicial effect - evidence admissible as expert opinion evidence - probative value outweighed prejudicial effect. CRIMINAL LAW - appeal - conviction - whether Crown Prosecutor cross-examined applicant in improper manner - whether Crown Prosecutor addressed jury in an improper manner - whether Crown Prosecutor undermined directions of trial judge - aspects of Crown Prosecutor's conduct and address improper -no miscarriage of justice occassioned. CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - circumstantial evidence - circumstantial evidence to be considered as a whole - doubt capable of being resolved by jury's advantage in seeing and hearing evidence of applicant - no reasonable doubt on independent assessment of evidence. CRIMINAL LAW - new and fresh evidence - whether evidence available at time of trial - whether evidence credible, plausible or capable of belief - whether evidence likely to have caused jury to have entertained a reasonable doubt about guilt of applicant - new evidence concerning carbon monoxide likely to have caused jury to entertain a reasonable doubt. CRIMINAL LAW - appeal - conviction - whether applicant should be acquitted or retried - discretionary considerations.
Legislation Cited:	Criminal Appeal Act 1912 Criminal Appeal Rules Director of Public Prosecutions Act 1986 Evidence Act 1995 Legal Profession Act 2004
Cases Cited:	Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Burrell v R [2009] NSWCCA 193 Causevic v R [2008] NSWCCA 238; 190 A Crim R 416 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Director of Public Prosecutions v Shannon [1975] AC 717 Direction of Public Prosecutions (Nauru) v Fowler (1984) HCA 48; (1984) 153 CLR 317 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437 Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317 Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308 Gill v Walton (1991) 25 NSWLR 190 Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Justins v R [2010] NSWCCA 242; (2010) 204 A Crim R 315 Kanaan v R [2006] NSWCCA 109 King v The Queen [1986] HCA 59; (1986) 161 CLR 423 Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McCullough v R [1992] Tas R 43 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Anderson (1991) 53 A Crim R 421 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 R v Arp [1998] 3 SCR 339 R v Bikic [2002] NSWCCA 227 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 R v Darby [1982] HCA 32; (1982) 148 CLR 668 R v Degnan [2001] 1 NZLR 280 R v Gibson [2002] NSWCCA 401 R v Gilham [2007] NSWSC 231; (2007) 190 A Crim R 303 R v Gilham [2009] NSWSC 138 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Grdic [1985] 1 SCR 810 R v Hilder (1997) 97 A Crim R 70 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Honeysett (1987) 10 NSWLR 638; (1987) 34 A Crim R 277 R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 R v Murre [2001] NSWCCA 286 R v O'Donohue [2001] NSWCCA 458 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 R v Pernich (1991) 55 A Crim R 464 R v Perry (1990) 49 A Crim R 243 R v Ronen [2004] NSWSC 1298 R v Storey [1978] HCA 39; (1978) 140 CLR 364 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5 R v Z [2001] 2 AC 483 Ramsay v Watson [1961] HCA 65; 108 CLR 642 Randall v The Queen [2002] 1 WLR 2237 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Reid v The Queen [1980] 1 AC 343 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603 Velevski v R [2002] HCA 4; 76 ALJR 402 Vella v R (1990) 2 WAR 537 Ward v R (1981) 3 A Crim R 171 Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Wood v R [2012] NSWCCA 21
Category:	Principal judgment
Parties:	Jeffrey Gilham (Applicant) Crown
Representation:	Counsel: C Steirn SC/P Barham (Applicant) L Babb SC/N Noman (Crown) Solicitors: Paladin Law Pty Ltd (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2006/2766
Decision under appeal	Jurisdiction: 9111 Citation: R v Gilham [2009] NSWSC 138 Date of Decision: 2009-03-11 00:00:00 Before: Howie J File Number(s): 2006/2766