Gillard v The Queen

Case [2003] HCA 64

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

KEVIN WAYNE GILLARD   APPELLANT

AND

THE QUEEN  RESPONDENT

Gillard v The Queen [2003] HCA 64

12 November 2003

A200/2002

ORDER

1.   Appeal allowed.

2.   Set aside the orders of the Full Court of the Supreme Court of South Australia made on 21 December 2000 dismissing the appellant's appeal and, in lieu thereof, order that:

(a)the appellant's appeal to that Court be allowed;

(b)the appellant's convictions be quashed; and

(c)there be a new trial.

On appeal from the Supreme Court of South Australia

Representation:

D H Peek QC with J A Richards for the appellant (instructed by Lipson Street Chambers)

S A Millsteed QC with A P Kimber for the respondent (instructed by Director of Public Prosecutions (South Australia))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Gillard v The Queen

Criminal law – Murder – Joint criminal enterprise – Appeal against conviction – Misdirection by trial judge – Failure to leave manslaughter to jury – Whether jury properly instructed would necessarily have returned verdict of guilty of murder – Whether failure to leave manslaughter to jury occasioned substantial miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA), s 353(1).

  1. GLEESON CJ AND CALLINAN J.   The appellant, and a co-accused Gerald David Preston, were convicted of the murder of two men and the attempted murder of another.  The appellant contends that the trial judge failed to leave manslaughter to the jury as a possible verdict in relation to each of the two men who were killed, and that this constituted a wrong decision on a question of law.  That contention (which was rejected by the Full Court of the Supreme Court of South Australia[1]) is supported by the respondent. The difference between the parties to the appeal is whether the case is a proper one for the application of the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The principal questions for decision are whether, on the facts, there was a viable case of manslaughter to be left to the jury and, as it was put in Gilbert v The Queen[2], whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder.  Those two questions address the problem by reference to different stages of the proceeding, but they turn upon substantially the same considerations of law and fact.  The trial judge left the case to the jury as murder (and attempted murder) or nothing.  If there was no viable case of manslaughter to be considered, then there was no wrong decision on a question of law.  If, on the other hand, there was such a case (as has been contended consistently by the prosecution) then the proviso will apply only if it is clear that a jury, properly instructed, would necessarily have convicted the appellant of murder (and attempted murder).

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Gillard v The Queen [2003] HCA 64
Case
[2003] HCA 64
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CaseChat Overview and Summary

In *Gillard v The Queen*, the High Court of Australia considered an appeal against convictions for murder. The appellant, Gillard, was involved in a criminal enterprise with one Preston, who was the primary offender and fired the fatal shots. The dispute centred on whether the jury at trial had been adequately instructed on the available verdicts, specifically whether manslaughter should have been left for their consideration. The case was heard by Gleeson CJ, Gummow, Kirby, Hayne, and Callinan JJ.

The central legal issues before the High Court were whether the trial judge had misdirected the jury by failing to leave the alternative verdict of manslaughter, and if so, whether this failure occasioned a substantial miscarriage of justice. This required the Court to consider the evidence presented at trial and determine if a rational jury, properly instructed, could have found Gillard guilty of manslaughter but not murder. The Court also had to assess whether the convictions for murder were inevitable, even if the jury had been permitted to consider manslaughter.

The High Court reasoned that there was evidence supporting the appellant's contention that his criminal purpose was limited to robbery, while Preston's purpose was to commit murder. The trial judge's failure to leave manslaughter as a possible verdict meant the jury was confined to considering murder or acquittal. The Court found that the jury should have been allowed to consider whether Gillard, by participating in a robbery, foresaw that Preston might act with intent to kill or cause grievous bodily harm, which could lead to a manslaughter verdict. Because the jury was deprived of the opportunity to consider this potentially more favourable verdict, and given the gravity of a murder conviction, the Court concluded that the convictions were not inevitable and the integrity of the trial was undermined.

Consequently, the High Court allowed the appeal, quashed the appellant's convictions for murder, and ordered a new trial.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 21 December 2000 dismissing the appellant's appeal and, in lieu thereof, order that:

(a) the appellant's appeal to that Court be allowed;

(b) the appellant's convictions be quashed; and

(c) there be a new trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As it is, by the way it was argued, we are virtually forced to resolve this appeal on a footing that I, at least, find quite unsatisfactory. It misses an opportunity to clarify and simplify the task of trial judges and the juries they instruct. In such matters, these are important functions of this Court[46]. Yet I must answer the questions argued within the inherent limitations that I have mentioned.[46]cf Zoneff v The Queen (2000) 200 CLR 234 at 260-262 [64]-[68].The evidence supporting exculpation and inculpation Reflecting different culpabilities: Most of the facts, relevant to my analysis, are set out in other reasons[47]. A consideration of them indicates that the jury had a critical decision to make concerning the culpability of the appellant in the acts performed by Mr Preston (the primary offender), in murdering Mr Les Knowles, another employee in Mr Knowles' workshop and wounding a third person. A rational system of criminal law would present such a question of potentially differential culpability for decision by the tribunal of fact (here a jury).[47]Joint reasons at [1]-[8]; reasons of Hayne J at [99]-[102]. Evidence supporting exculpation: I will not go over all of the evidence that would tend to exculpate the appellant from guilt of Mr Preston's murders. However, the relevant features of the evidence would certainly include: (1) The clear evidence that Mr Preston alone fired the shots at the victims and did so pursuant to a pre-existing plan which he had made to kill Mr Knowles for a fee that he alone subsequently collected; (2) The discharge of the firearm occurred out of sight of the appellant who remained in the van which he was driving as a get-away vehicle, consistent with his shared purpose of participating only in a robbery; (3) The appellant's background as a person with mental problems, who had only recently been discharged from a psychiatric hospital to resume his itinerant life; (4) The appellant was dominated by Mr Preston, to whom he looked up, who was the "ringmaster" of their joint enterprise and who, for his part, regarded the appellant as an "idiot", not an equal player; (5) The appellant's lack of past convictions for acts of violence or the use of firearms and his reputation and identity as a small-time thief with severe alcohol problems and few friends; (6) The appellant's omission to change his name or identity in Brisbane where he went after the offences and his immediate declaration to the police who apprehended him that the purpose of the enterprise was "nicking", ie stealing or robbery, not homicide; (7) The consistency of that stated purpose with the proved reputation of Mr Knowles as being involved in drug dealing, with the foreseeable possibility of his having cash on his premises so as to support a motive of robbery (a fact confirmed by the subsequent police investigation); and (8) The then recent residence of the appellant in the same suburb as Mr Knowles, with the available inference that he was aware of the likelihood of the presence of cash on the Knowles premises.

Decision

Reasons for decision

GLEESON CJ CALLINAN J GUMMOW J KIRBY J HAYNE J
In this case the jury were not told to consider all of the possibilities that the appellant may have had in mind. What was done was to confine their consideration to the single possibility that the co‑accused might deliberately shoot the victims. Central to the appellant's case at trial was that all that he intended was robbery. One possibility to which the jury should have had regard, in the circumstances of this case, was that, in the course of robbery, the co‑accused would engage in the unlawful and dangerous act of presenting a loaded weapon at the victim.The Full Court's decision At the appellant's trial, there was evidence from which it was open to the jury to conclude that the appellant had agreed and intended to participate only in some "nicking" or a "robbery", whereas Preston had gone to the workshop intending to commit a contract killing. The Full Court considered[113] that "[i]f Preston had murder in mind and Gillard contemplated a robbery only, it is difficult to identify a relevant common criminal purpose". That was because, in the Full Court's view[114], "crucial to the concept inherent in the doctrine that a non‑perpetrator authorises the perpetrator to do all that is required to carry out the common design" is that "there must be a meeting of minds in relation to the criminal design".[113](2000) 78 SASR 279 at 290 [339].[114](2000) 78 SASR 279 at 290 [338]. To focus attention, as this part of the Full Court's reasoning did, upon notions of "authority", may distract attention from the central elements of the law relating to joint criminal enterprise. Those central elements are the understanding or arrangement of the alleged participants, and the scope of the common purpose of the parties to the understanding or arrangement. Notions of "authority" might be understood as excluding liability for crimes which the secondary party did not agree would be committed but foresaw might be. But as McAuliffe shows, the secondary party is culpable in such a case – because the secondary party participates in the joint criminal enterprise with the necessary foresight. More fundamentally, however, references to a meeting of minds may invoke notions, analogous to principles of the law of contract, which would require a complete identity between the individual purposes of each participant in the enterprise before common purpose could be found. In particular, references to a meeting of minds might be taken to suggest that if one person contemplates the commission of one crime, but another contemplates the commission of a different crime, there can be no common purpose between them. That is not right. Where common purpose is alleged, it is essential to identify what the parties did agree upon and what it was that each contemplated might occur. That requires attention to, and identification of, the acts and omissions which the parties agreed upon, rather than the identification of the particular crime constituted by the acts which each intends should be performed. To show that not everything that each party had in mind was agreed by all other participants does not deny that there was an arrangement or understanding, amounting to an agreement, to commit a crime.Was manslaughter an available verdict?

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, CALLINAN J, GUMMOW J, KIRBY J, HAYNE J

The suggestion that published legal analysis should be ignored because of criticism of a judicial decision by an author who was counsel in a case is one that I would reject. The analysis is either good or bad, useful or useless according to its terms. Authors do not own ideas once they are expressed. In the case note in question on this issue, the author disclosed his involvement as counsel and invited allowance for that fact[82]. What he wrote was published as editor of a journal on criminal law. The author's identity was irrelevant. His ideas happen to be useful. This Court is evaluating and expressing the law of a nation. It should not take a confined view of its sources. It follows that I cannot agree with what Hayne J has written. [82]Odgers, (1996) 20 Criminal Law Journal 43 at 44.Consideration of the proviso Relevant considerations: Having reached the foregoing opinion, that two errors have been shown on the part of the Full Court, the only remaining question is whether the appellant's convictions could be sustained on the basis of the proviso[83]. Setting aside the outcome of such a lengthy trial, on a ground which the appellant originally rejected, is extremely unpalatable. This is especially so because he was found guilty of two murders following judicial instruction on the law of murder which, so far as it went, was not criticised. Clearly, there was evidence to sustain the convictions of murder, depending upon the view that the jury took of that evidence.[83]Criminal Law Consolidation Act, s 353(1). However, if the availability of returning a verdict of guilty of manslaughter (and of not guilty of murder) should have been made known to the jury, it is impossible to say that such knowledge would have proved irrelevant in this case and that the verdicts of guilty of murder would inevitably have followed. Unlike Mr Preston, the appellant had a number of points to make in his defence. Depending on the view of the appellant's culpability taken by the jury, by reference to whether or not he foresaw that Mr Preston might possibly act with intent to kill or cause grievous bodily harm to the victims, the jury could have returned verdicts of guilty of manslaughter. In such circumstances it cannot be said that the appellant's convictions of murder were inevitable[84]. Those convictions are not insulated from appellate correction because the point was not taken at trial[85]. If the jury were deprived of the opportunity to consider verdicts of manslaughter, potentially more favourable to the appellant than those that they returned, the deprivation of that chance undermines the integrity of the trial[86]. At least it does so in this case where the convictions entered are of murder and carry the heaviest penalty known to the law[87].[84]See eg De Gruchy v The Queen (2002) 76 ALJR 1078 at 1088 [65]; 190 ALR 441 at 456; MFA v The Queen (2002) 77 ALJR 139; 193 ALR 184.[85]Conway v The Queen (2002) 209 CLR 203 at 233 [82]; Heron v The Queen (2003) 77 ALJR 908 at 915 [38]-[42]; 197 ALR 81 at 90-91 and cases there cited.[86]Gilbert v The Queen (2000) 201 CLR 414 at 422 [19]-[20], 441-442 [101]-[103].[87]Charlie v The Queen (1999) 199 CLR 387 at 399 [27].