MICHAEL ALAN GILLARD v THE QUEEN
[2013] ACTCA 17 (18 April 2013)
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether verdict was unsafe – multiple amendments of dates of charges in an indictment – no availability of new alibi evidence – appeal dismissed
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – irregularity of trial process – general prejudice – prejudice suffered not particularised – appeal dismissed
APPEAL AND NEW TRIAL – APPEAL – appeal against sentence – whether sentence was manifestly excessive – whether non-parole period was particularly high – whether non-parole period was so low as to suggest trial judge’s realisation that head sentence was excessive – non-parole period neither particularly high nor particularly low – whether some sentences inappropriately accumulated – no error found in either length or accumulation of sentence – appeal dismissed
CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – sexual offences – consent negated under s 67(1)(h) of the Crimes Act – need for separate or explicit abuse of authority or trust – not needed – appeal dismissed
CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – sexual offences – consent – recklessness under s 67 of the Crimes Act
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – direction as to consent – whether direction was adequate – direction was adequate – appeal dismissed
Crimes Act1900 (ACT), ss 54(1), 55(2), 60(1), 61(2), 65, 67, 264(1)
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Code 2002 (ACT), s 44(1)
Supreme Court Act 1933 (ACT), s 37O
Ayles v The Queen (2008) 232 CLR 410
Director of Public Prosecutions v Walker [2011] ACTCA 1
Evans v The Queen (2007) 235 CLR 521
Fleming v The Queen (1998) 197 CLR 250
M v The Queen (1994) 181 CLR 487
R v Radley (1973) 58 Cr App R 394
R v Schippani [2012] ACTSC 108
R v Tolmie (1995) 37 NSWLR 660
Ryan v The Queen (2001) 206 CLR 267
S v The Queen (1989) 168 CLR 266
Sims v Drewson (2008) 188 A Crim R 445
ACT Law Reform Commission, Report on the Laws Relating to Sexual Assault, Report No 18 (2001)
W.A.N. Wells, Evidence and Advocacy (Butterworths, 1988)
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 61 – 2011
No. SCC 254A of 2009
Judges: Refshauge, Penfold, North JJ
Supreme Court of the ACT
Date: 18 April 2013
IN THE COURT OF APPEAL OF THE ) No. ACTCA 61 – 2011
) No. SCC 254A of 2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
MICHAEL ALAN GILLARD Appellant
AND:
THE QUEEN Respondent
ORDER
Judges: Refshauge, Penfold, North JJ
Date: 18 April 2013
Place: Canberra
THE COURT ORDERS THAT:
(a)The appeal is dismissed.
IN THE COURT OF APPEAL OF THE ) No. ACTCA 61 – 2011
) No. SCC 254A of 2009
AUSTRALIAN CAPITAL TERRITORY
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- AGLC
- Gillard v The Queen [2013] ACTCA 17
- Case
- [2013] ACTCA 17
- Decision Date
CaseChat Overview and Summary
The appeal raised several legal issues. These included whether the verdict was unsafe due to multiple amendments of the dates of charges in the indictment and the alleged unavailability of new alibi evidence. The court also considered whether irregularities in the trial process caused general prejudice to the appellant, and whether the sentence imposed was manifestly excessive, including the length of the non-parole period and the accumulation of sentences. Further issues concerned the interpretation of consent under section 67(1)(h) of the *Crimes Act*, specifically whether a separate or explicit abuse of authority or trust was required, and the adequacy of the trial judge's directions to the jury regarding consent and recklessness under section 67 of the *Crimes Act*.
The court dismissed the appeal on all grounds. It found that the amendments to the indictment did not render the verdict unsafe, nor was the prejudice suffered by the appellant particularised or substantial enough to warrant a new trial. The court held that the sentence was neither manifestly excessive nor inappropriately accumulated, and that the non-parole period was not unduly high or low. Regarding the sexual offences, the court determined that an explicit abuse of authority or trust was not a necessary element for consent to be negated under section 67(1)(h) of the *Crimes Act*. Furthermore, the directions given to the jury concerning consent and recklessness were found to be adequate.
Orders
Orders of the court
1. On 12 September 2011, Michael Alan Gillard (the appellant) was arraigned before the Chief Justice (the trial judge) on an indictment dated 7 April 2010. This original indictment charged 19 counts involving two complainants, DD (born 14 May 1981) and her sister JL (born 26 December 1982), being:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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