R v Gemmill - [2004] VSCA 72

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 12 of 2004

THE QUEEN
	v.
NOEL LAURENCE GEMMILL

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JUDGES:	WINNEKE, P., ORMISTON and EAMES, JJ.A.
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	23 March 2004
DATE OF JUDGMENT:	3 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 72

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CRIMINAL LAW – Murder – Mental impairment - Evidence – Expert evidence – Conflicting opinions of expert witnesses – Directions as to consideration by jury of conflicting expert evidence – Application of common sense by jury – Whether defence case put adequately to jury – What constitutes “mental impairment” – Whether verdict unreasonable and unsupported by evidence - Crimes (Mental Impairment & Unfitness to be Tried) Act 1997, ss.20, 21, 25.

CRIMINAL LAW – Murder – Sentence – Offender suffering depression but not mentally impaired – Brutal murder of wife after separation and dispute about property - Sentence 18 years’ imprisonment with 14 years’ non-parole period, not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Coghlan, Q.C. Ms S. Pullen	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G. Thomas, S.C.	J.G. Thompson

WINNEKE, P.:

I agree, for the reasons given by Eames, J.A., that the applications for leave to appeal against conviction and sentence should be dismissed.

ORMISTON, J.A.:

I agree that each of the applications should be dismissed, for the reasons stated by Eames, J.A.

EAMES, J.A.:

On 17 November 2003 a jury sitting in the Supreme Court at Shepparton found the applicant guilty of the murder of his wife. On 23 January 2004 the applicant was sentenced to 18 years’ imprisonment with a non-parole period fixed of 14 years. A declaration was made that the applicant had served 879 days pre-sentence detention. The applicant now seeks leave to appeal against conviction and sentence.

The applicant and his wife, Robyn, were married in April 1975 and had two sons. There had been disagreements from time to time during the marriage, with respect to finances, and they separated for a few months in 1995 but then reconciled and together purchased a home at 25 Federation Street, Nathalia. In April 2001 Robyn Gemmill commenced a relationship via the Internet with a man whom she sometimes met on weekends. The man was unaware that Mrs Gemmill was married but was confronted by the applicant when he had telephoned Mrs Gemmill at her home and the phone had been answered by the applicant. In the telephone conversation the applicant accused the man of “rooting his wife”, and the applicant threatened to kill him. Soon after, the deceased moved out of the family home, leaving a note for the applicant announcing that she was separating and would live

with the other man.

In consequence of these events the applicant was admitted to the mental health facility at the Goulburn Valley Health Service from 9 June 2001 to 11 June 2001. He was further admitted to the Nathalia District Hospital from 19 to 21 June 2001. As emerged in the evidence,…

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 R v Gemmill

Details

AGLC: R v Gemmill [2004] VSCA 72
Case: [2004] VSCA 72
Decision Date: 3 May 2004

CaseChat Overview and Summary

In the case of R v Gemmill, the respondent stood accused of murdering his wife, with the trial taking place in the Supreme Court of Victoria. The primary issue in the appeal was whether the trial judge had adequately directed the jury regarding the consideration of conflicting expert evidence about the respondent's mental impairment, and if the verdict was unreasonable and unsupported by the evidence. The court also needed to determine the appropriate sentence for the brutal murder, considering the respondent's depression and the absence of a mental impairment.

The court examined whether the trial judge had sufficiently guided the jury on how to assess conflicting expert opinions regarding the respondent's mental state. It considered the statutory definition of "mental impairment" under the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 and whether the jury was appropriately directed to apply common sense in evaluating the evidence. The court also scrutinised whether the defence case was adequately presented to the jury, ensuring that all relevant considerations were made in reaching a verdict.

Upon review, the court concluded that the trial judge had adequately directed the jury on how to consider the conflicting expert evidence. The jury was instructed to apply common sense in evaluating the evidence, and the court found that the verdict was reasonable and supported by the evidence. The court further determined that the sentence of 18 years’ imprisonment with a non-parole period of 14 years was not manifestly excessive, taking into account the brutality of the crime and the respondent's depression, which did not amount to a mental impairment.

The court upheld the conviction and the sentence, confirming the jury's verdict and the trial judge's sentencing decision.

Orders