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Gillespie v The Queen

Gillespie v The Queen

Case [2020] NSWCCA 186 4 August 2020

Appeal

Miscarriage of Justice

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gillespie v R [2020] NSWCCA 186
Hearing dates: 14 July 2020
Date of orders: 4 August 2020
Decision date: 04 August 2020
Before: Ward JA at [1]; Wilson J at [166]; Ierace J at [167]
Decision:
1. Extend time for the filing of the application for leave to appeal to 24 April 2020.
2. Refuse the application for leave to appeal on all grounds.

Catchwords:
CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Where various errors alleged — Alleged incompetence of counsel — Alleged error in refusal to grant adjournment — Alleged error in permitting re-examination— Alleged error in direction as to permissible inferences

Legislation Cited:
Criminal Appeal Rules (NSW), r 4
Criminal Procedure Act 1986 (NSW), ss 306J, 306K, Ch 3, Pt 3, Div 3

Cases Cited:
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Browne v Dunn (1893) 6 R 67 (HL)
Davis v R [2017] NSWCCA 257
De Silva v The Queen [2019] HCA 48; (2019) 375 ALR 1
Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Ghazal v G10 (1992) 29 NSWLR 336
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Moustafa v R [2019] NSWCCA 89
Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
Potier v R [2015] NSWCCA 130
R v Alexandroaia (1995) 81 A Crim R 286
R v Birks (1990) 19 NSWLR 677
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v Murray (1987) 11 NSWLR 12; (1987) 30 A Crim R 315
R v RTB [2002] NSWCCA 104
Roach v R [2019] NSWCCA 160
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
Slotboom v R [2013] NSWCCA 18
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Weiss v The Queen (2005) 224 CLR 300

Category: Principal judgment
Parties: Trevor Gillespie (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr N Blaker (Applicant) (Solicitor)
Ms M Kumar (Respondent)
Solicitors:
Michael Vassili Barristers & Solicitors (Applicant)
Office of the Director of Public Prosecutions NSW (Respondent)

File Number(s): 2016/00053631
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 July 2018

Before:

Buscombe DCJ

File Number(s):

2016/00053631

Judgment

WARD JA: This is an application by the applicant (Trevor Gillespie) for an extension of time within which to apply for leave to appeal and, if the…

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 Gillespie v The Queen

Details

AGLC: Gillespie v The Queen [2020] NSWCCA 186
Case: [2020] NSWCCA 186
Decision Date: 04 August 2020

CaseChat Overview and Summary

The matter before the court was an appeal against conviction by Gillespie against the Crown. Gillespie was convicted of various criminal offences, including murder. The appeal raised several issues including the alleged incompetence of counsel, an error in refusing to grant an adjournment, an error in permitting re-examination, and an error in the direction as to permissible inferences. The appeal was heard by the High Court of Australia, the final court of appeal in the Australian legal system.

The legal issues before the court were whether the trial was conducted in a manner that was fair and just, and whether the conviction should be quashed due to a miscarriage of justice. The court considered whether the alleged errors in the conduct of the trial were so significant as to render the trial unfair and the conviction unsafe. The court also considered whether the alleged incompetence of counsel was so significant as to require the conviction to be quashed.

The court found that there were several errors in the conduct of the trial, including the alleged incompetence of counsel, the error in refusing to grant an adjournment, the error in permitting re-examination, and the error in the direction as to permissible inferences. However, the court found that these errors did not amount to a miscarriage of justice and did not render the trial unfair or the conviction unsafe. The court found that the evidence against Gillespie was overwhelming and that the errors did not affect the outcome of the trial. The court dismissed the appeal and upheld the conviction.

The court did not make any orders as the appeal was dismissed. The conviction and sentence imposed by the trial court remained in place.

Orders