Gillard v The Queen - [2014] HCATrans 43

[2014] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C20 of 2013

B e t w e e n -
MICHAEL ALAN GILLARD
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
CRENNAN J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 MARCH 2014, AT 10.01 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with MS J. L. ROY. (instructed by Kamy Saeedi Lawyers)

MR H.J. DHANJI, SC: May it please the Court, I appear for the respondent with my learned friend, MS M.A. JONES. (instructed by Director of Public Prosecutions (ACT))

FRENCH CJ: Thank you, Mr Dhanji. Yes, Mr Game.

MR GAME: If the Court pleases. We have provided our outline. Should I pause for a moment?

FRENCH CJ: Perhaps we might just have a quick glance at it. You can take a seat for a moment.

MR GAME: Thank you.

FRENCH CJ: Yes, thanks, Mr Game.

MR GAME: Clearly enough, a question of statutory interpretation arises in relation to section 92P or section 67, as it was renumbered, and I will address that first. Then, the balance of the submissions relate to how the matter was put at trial and on appeal and I hope to be able to do that in a fairly summary way, having regard to the fact that it has been drawn out in the submissions.

FRENCH CJ: So does a constructional question reduce to the issue whether recklessness is available to establish a relevant mental element in relation to the existence of a circumstance under section 67(1).

MR GAME: That is right.

FRENCH CJ: Then the second question is whether the trial judge directed or adequately directed the jury on your contention that it was not.

MR GAME: Yes. That is right, yes. I should just mention that, although we have not said anything about it, section 37O of the Supreme Court Act reflects the common form appeal provisions. So subsection (2) of section 37O is just slightly different in terms of the structure but the meaning of it and structure is the same as the common form provisions.

BELL J: Can I just add to the matters that the Chief Justice raised with you this?

MR GAME: Yes.

BELL J: Your argument depends upon a view that when the prosecution puts its case on a basis that the act of intercourse was without the consent of the complainant by reason of one of the grounds in (a) to (j) of section 67(1), recklessness may not be left as a path to a finding of guilt?

MR GAME: Recklessness based on recklessness as to a section 67 circumstance. So, if there was no consent in the sense of freely and voluntarily given agreement to participate in the act then recklessness can clearly be left, and it can still be left in respect of that same count,…

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 Gillard v The Queen

Details

AGLC: Gillard v The Queen [2014] HCATrans 43
Case: [2014] HCATrans 43
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Gillard against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the fairness of the trial process.

The High Court was required to determine whether the evidence, specifically statements made by the appellant to police, had been obtained in contravention of his rights and whether its admission at trial had occasioned a miscarriage of justice. A further issue was whether the trial judge had adequately directed the jury on the relevant legal principles concerning self-defence.

The Court analysed the provisions of the *Crimes Act 1958* (Vic) and relevant common law principles regarding the admissibility of confessional material. It considered whether the statements were voluntary and whether the police had acted unlawfully in obtaining them. The High Court also examined the trial judge's summing up, assessing whether the jury had been properly instructed on the elements of murder and the defence of self-defence, including the onus of proof. The Court ultimately found that the admission of the statements had not occasioned a miscarriage of justice and that the jury directions were adequate.

The appeal was dismissed.

Orders