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Gill v The Queen

Gill v The Queen

Case [2019] VSCA 92 30 April 2019

Inconsistency of Verdicts

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0108

DENNIS MALCOLM GILL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARINGS:	19 February 2019 and 17 April 2019
DATE OF JUDGMENT:	30 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 92
JUDGMENT APPEALED FROM:	DPP v Gill (Unreported, County Court of Victoria, Judge Allen, 8 May 2018)

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CRIMINAL LAW – Conviction – Separate trials on two indictments – Indecent assault on a male person – Buggery – Attempted buggery – Historical offending dating back to 1976 and 1977 – Jury convicting on 2 of 5 charges on second indictment and acquitting on remaining 3 – Whether verdicts inconsistent – Tyrrell v The Queen [2019] VSCA 52 considered – No logical or factual inconsistency – Verdicts not unsafe or unsatisfactory – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Total effective sentence on both indictments of 15 years and 10 months’ imprisonment – Applicant elderly and unwell but sentenced as serious sexual offender – Applicant in a position of trust, at the time, over young boys in his care – Whether sentence ‘crushing’ – R v Vaitos (1981) 4 A Crim R 238 and R v Gregory [2000] VSCA 212 considered – Whether orders for cumulation made without proper regard to continuous transaction rule – No remorse – Sentence severe but within range – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Applicant appeared in person (with the assistance of Mr M Phillips – Associate Public Defender, Victoria Legal Aid)
For the Respondent	Mr M Gibson SC with Ms A Roodenburg	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
KAYE JA

WEINBERG JA:

Preliminary objections by applicant to jurisdiction of Court below and this Court

At the commencement of the hearing of these applications for leave to appeal against conviction and sentence, the applicant indicated that he wished to represent himself, rather than avail himself of the assistance of the Associate Public Defender, Mr Matthew Phillips, who was prepared to present the submissions on the applicant’s behalf. That was his right, and he was of course permitted to do so. Mr Phillips, who had been briefed by Victoria Legal Aid to conduct these applications, kindly offered to remain in Court, and provide such assistance to the applicant, and the Court, as might be required.

The applicant was then invited to present his argument. He was reminded on a number of occasions of the need to address each proposed ground of appeal in each of the two applications. He was told, in no uncertain terms, that he would be unlikely to do himself justice if he persisted in presenting his submissions in person. Despite being so advised, he insisted that he would present his own argument.

What next occurred may be briefly summarised. The applicant commenced his submissions by indicating that he wanted them transcribed so that they could be passed on…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Gill v The Queen

Details

AGLC: Gill v The Queen [2019] VSCA 92
Case: [2019] VSCA 92
Decision Date: 30 April 2019

CaseChat Overview and Summary

The case of Gill v The Queen involved the applicant, Gill, who was convicted of historical sexual offences against male victims dating back to 1976 and 1977. Gill was tried on two separate indictments and faced multiple charges, including indecent assault, buggery, and attempted buggery. The jury returned verdicts on the second indictment, convicting on two of the five charges and acquitting on the remaining three. Gill appealed against both conviction and sentence, arguing that the verdicts were inconsistent and the sentence was excessive.

The primary legal issue before the court was whether the verdicts on the second indictment were inconsistent. The court considered the case of Tyrrell v The Queen, which established that verdicts are inconsistent if they are logically or factually irreconcilable. The court found no such inconsistency in this case, as the jury could have rationally believed the applicant guilty of the two offences but acquitted on the others. The court also examined the applicant's appeal against sentence, considering whether the total effective sentence of 15 years and 10 months' imprisonment was excessive. The court found that, while the applicant was elderly and unwell, the severity of the offences warranted a substantial sentence, and the sentence was within the appropriate range.

In dismissing the application for leave to appeal, the court held that the verdicts were not unsafe or unsatisfactory, and the sentence was not disproportionate. The court noted that the applicant, who was in a position of trust over young boys at the time of the offences, showed no remorse. The court concluded that the sentence, although severe, was not 'crushing' and was appropriate given the circumstances. The court also found that the orders for cumulation were made with proper regard to the continuous transaction rule. As such, the application for leave to appeal was refused.

The final orders of the court were to dismiss the application for leave to appeal both against conviction and sentence. The court found no merit in the applicant's arguments and upheld the original verdicts and sentence imposed by the trial judge.

Orders