Gillard v The Queen - [2013] HCATrans 285

[2013] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No C7 of 2013

B e t w e e n -
MICHAEL ALAN GILLARD
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 1.06 PM

MR T.A. GAME, SC: May it please, I appear with MS J.L. ROY for the applicant. (instructed by Kamy Saeedi Lawyers)

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

HAYNE J: Mr Game.

MR GAME: If the Court pleases. The point that we wish to argue concerns the relevant mental element in a case of sexual intercourse without consent or indecent assault without consent under the relevant ACT legislation. If I could take your Honours to page 83 of the application book, you will see section 67 is set out there. That is in the same terms as section 92P and that is a convenient reference point.

The point that we wish to argue is reserved, in our submission, in paragraph 83(c) at page 86 of the application book and our position is that the point is grasped in Justice Penfold’s judgment in Schipanni. The problem is grasped at paragraph 83 and an answer is given at 84. Just while we are on that judgment, then over the following page the answer given in Jones - it was obiter in Jones v Chief of Navy but the answer given there on page 92, in that paragraph that begins “As to s 67 (3)” does not really make sense.

The proposition that it merely is there to, as it were, state the obvious, does not make sense. The argument that we put is this. If you look at section 67, section 67 is not limiting cases of absence of consent. In fact, it can extend to cases where there is actual consent as well as cases where there is ostensible but not actual consent. It uncomfortably brings together different classes of events but it actually uses the language of actual consent. So what we say section 67(3) ‑ ‑ ‑

HAYNE J: Sorry, could I just back up one stage a moment?

MR GAME: Yes, your Honour.

HAYNE J: Section 67(1) has as its premise that consent has been given, does it not?

MR GAME: That is right, that is right.

HAYNE J: Right.

MR GAME: That is right. So it goes beyond.

HAYNE J: But a jury gets to this point and considers this point only, what - if first I have to build in a burden of proof?

MR GAME: Can I just put it this way? Say the jury on ordinary notions of consent was satisfied that absence of consent had been established, you would not need to go to this section at all.

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 [2013] HCATrans 285
Case: [2013] HCATrans 285
Decision Date

CaseChat Overview and Summary

The case of *Gillard v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Gillard, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently sentenced to a term of imprisonment. The appeal to the High Court raised significant questions regarding the fairness of the trial and the proper application of legal principles in criminal proceedings.

The central legal issues before the High Court revolved around the admissibility of certain evidence and the adequacy of the directions given by the trial judge to the jury. Specifically, the court was required to consider whether evidence obtained in circumstances that might have infringed the appellant's rights should have been excluded, and whether the jury's verdict was unsafe or unsatisfactory due to alleged misdirections on key aspects of the law of murder, including the concept of intent.

In their joint judgment, Hayne and Gageler JJ analysed the evidence and the trial judge's directions in light of established principles of criminal law and evidence. They considered the discretion of the trial judge to exclude evidence, particularly where its prejudicial effect might outweigh its probative value, and the fundamental requirement for a jury to be properly instructed on the elements of the offence charged. The High Court ultimately determined that the trial judge's directions were sufficient and that the admission of the evidence in question did not render the trial unfair.

Consequently, the High Court dismissed the appeal, upholding the appellant's conviction for murder.

Orders