R v Gilbert

[2001] QCA 18

[2001] QCA 18

COURT OF APPEAL

McPHERSON JA
THOMAS JA

MULLINS J

CA No 236 of 2000
THE QUEEN
v.

DONALD GILBERT

BRISBANE
..DATE 07/02/2001

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McPHERSON JA: This is an application by Donald Gilbert for
leave to appeal against the conviction for the murder of
Whintre Linsley committed on 28 July 1994. He was convicted on
9 December 1995 after a trial before Mackenzie J. and a jury in
the Supreme Court at Brisbane.

An appeal against that conviction has already been dismissed by this Court on 17 February 1996. See Queen v. Donald Bruce Gilbert (CA No 6 of 1996). The applicant, Donald Gilbert, was jointly tried with two other men. They were his brother William, or Bill, Gilbert and another man named Harding. All three were found guilty of murder which was count 1 in the indictment and an appeal by Harding has also been dismissed by this Court.

The essence of the Crown case at the trial was that Bill Gilbert had driven all four men, including himself, out to the bush and that it was the applicant, Donald Gilbert, who had perpetrated the actual killing by striking the blow, or blows, that shattered the victim's skull.

To establish this case against Donald Gilbert and consequently his guilt of murder, it was necessary for the Crown to prove that he struck the victim with intent to kill or to do him grievous bodily harm. The prosecution evidence against him was strong. It included a police record of interview in which Donald Gilbert admitted that he had struck Linsley at least twice, on the second occasion so hard that the victim's head "opened right up" after which Linsley appeared to stop

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breathing.

The evidence against the applicant also included the testimony of a woman named Rebecca McGrath who spoke to the applicant just before the four of them left on the fatal drive to the bush. In response to some questions from her the applicant told her that they were going to do the victim "some serious damage". When asked by Rebecca "What, kill him?", he responded, "What do you think."

If the jury accepted this evidence, as they evidently did, the
relevant intention on the part of the applicant would have been
established to their satisfaction beyond reasonable doubt.
They would have been entitled to find him guilty of murder, as
in fact they did.

On the other hand, if they were left with a reasonable doubt about the proof of intent it would have been open to them to find him guilty of manslaughter. The learned trial Judge directed the jury accordingly. In the course of his summing-up he said:

"I should just remind you, as I did before, the count of
manslaughter is live on the basis that there is an issue
raised as to whether he had an intent to kill or do
grievous bodily harm when he struck the blow that he
believed killed Whintre Linsley. So, if you do not find
Don Gilbert guilty of murder you would have to go on to

consider the question of manslaughter."

In respect of that matter, therefore, he properly directed the
jury both on the murder issue and the manslaughter issue.
Donald Gilbert's application now before us seems to have been
prompted by the success of his brother Bill's appeal, which was

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recently allowed by the High Court in Gilbert v. Queen (2000)

74 ALJR 676.

It is a misconception to suppose that the two matters are the
same. The two cases that were respectively mounted against
them by the Crown at the trial, and the nature of their
individual criminal responsibilities for the death of Linsley,
are different. Both were charged and convicted of murder; but
Bill Gilbert's part in the offence was based simply on his
having driven the other men to the scene where the killing took
place. In that way, he was alleged to have assisted the
killing. It was not alleged that he took an active part in

inflicting the fatal blows.

To establish his guilt of murder it was therefore necessary for
the Crown to have recourse under s.7 or s.8 of the Code and
prove that Bill Gilbert assisted Don Gilbert, or both Don
Gilbert and Harding, knowing that lethal force was intended to
be inflicted; or else that, on what Bill Gilbert did know, such
force was likely to be inflicted or to ensue.
That states it broadly but, for present purposes, not, I think,

inaccurately, in a legal sense.

The learned Judge deliberately refrained from directing the
jury that it was open to them to find Bill Gilbert guilty of
manslaughter. The reason he did so was that, at that time,
there was a decision of this Court in Hine & Harwood (1995) 80
A.Crim.R. 105, to the effect that, in circumstances like these,
a person criminally responsible as a secondary offender under

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s.7 or under s.8 could be convicted only of murder and not in
the alternative of manslaughter. It would therefore, at that
time, have been wrong in law for Mackenzie J. at the trial of
Bill Gilbert in 1995 to have directed the jury on the
alternative verdict of manslaughter in his case, which is why

his Honour did not do so.

Afterwards, in Barlow v. Queen (1997) 188 CLR 1 the High Court
overruled the decision in Hine & Harwood on that point. That
took the law back again to where it had been, or thought to
have been, for a long time before 1995, when it was possible in
law for one participant in a joint killing to be found guilty
of murder and for another, who assisted him, to be found guilty
only of manslaughter under s.7, or in consequence of either s.7

or s.8 of the Code. See Queen v. Jervis [1993] 1 Qd.R. 643.

It had, however, the consequence that as regards Bill Gilbert,
Mackenzie J. had, or so it was held by the High Court, been
incorrect at the trial in following Hine & Harwood (1995) in
preference to the earlier line of authority exemplified in
Queen v. Jervis (1993).

The result was that, in failing to direct the jury to consider manslaughter in the case against Bill Gilbert in 1995, his Honour was held to have erred and so deprived Bill Gilbert of an opportunity of acquittal. The position of the present applicant is quite different.

The applicant here was not charged with having merely assisted

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a killing that was carried out by someone else, but with having
himself struck the blows that killed Linsley and with having
done so with the requisite intention to constitute murder.
That that is so is apparent from what was said by Pincus J.A.
in dismissing the present applicant's appeal in 1998 in the
matter to which I have already referred. In the course of his

reasons his Honour said there:

"As to s.8, that could have become relevant only if the
jury entertained some fanciful scenario, not supported by
the evidence from any of the witnesses, to the effect that
the appellant neither killed nor helped to kill Linsley
but was a party to a plan to assault him, which plan,
contrary to all reasonable expectation, led to Linsley's

death."

It is plain that nothing like that arose at the trial and, even
if some such "scenario" had been suggested, the Judge could
not, without adequate supporting evidence, properly have put it
to the jury.

On the summing-up as it was presented to the jury, it was open in law for them to find Donald Gilbert not guilty of murder but guilty of manslaughter. The learned Judge specifically directed them to that effect in the passage from the summing-up that I have quoted. They returned a verdict of murder.

Unlike his brother the applicant has not been deprived of any opportunity of acquittal of the lesser charge of manslaughter, and he has no cause for complaint about his conviction for murder.

The applicant has now attempted to rely on the matter of his

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intoxication as a ground for a new trial or to set aside the
conviction. The issue of intoxication was raised in evidence
and submissions at the trial and was the subject of appropriate
directions by the Judge to the jury, which stressed that it
went to the presence or otherwise of the relevant intention on
the part of the accused to kill or do grievous bodily harm to
his victim. He has no sustainable argument now for reviving
that point which, so far as I can see, does not seem to have

been taken on the occasion of his previous appeal.

An appeal against conviction cannot be sustained in this case.

The application to extend the time for pursuing such an appeal

must therefore be refused.

THOMAS JA: I agree.

MULLINS J: I agree.

McPHERSON JA: The application for an extension of time within which to appeal against the conviction is dismissed.

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