R v Gilbert

[1998] QCA 13

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 7 of 1996.

Brisbane

[R v. W Gilbert]

T H E Q U E E N

v.

WILLIAM LAWRENCE GILBERT

Appellant

___________________________________________________________________

Davies J.A.
McPherson J.A.

Pincus J.A.

___________________________________________________________________________

Judgment delivered 17 February 1998

Separate reasons for judgment of each member of the Court; Davies and McPherson JJA.
concurring as to the order made, Pincus J.A. dissenting.

___________________________________________________________________________

APPEAL AGAINST CONVICTION DISMISSED.
___________________________________________________________________________

CATCHWORDS: Criminal Law - Murder - appeal against conviction - application of s. 8 Criminal Code - appellant did not strike deceased but drove vehicle to and from place where deceased was beaten to death - whether failure to leave manslaughter to jury, where it convicts of murder, constitutes an injustice.

Criminal Code s. 8

Barlow (1997) 188 C.L.R. 1

Counsel:	Mr R Greenwood Q.C. with him Mr P Feeney for the appellant. Mrs L Clare for the respondent.
Solicitors:	McInnes Wilson & Jensen for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	15 August 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 519 of 1995 C.A. No. 6 of 1996 C.A. No. 7 of 1996

Brisbane

Before Davies J.A.
McPherson J.A.
Pincus J.A.

[R. v. W.L. Gilbert]

T H E Q U E E N

v.

JASON DAVID HARDING
DONALD BRUCE GILBERT and

WILLIAM LAWRENCE GILBERT Appellants

R. v. WILLIAM LAWRENCE GILBERT

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 17 February 1998

I have had the advantage of reading the reasons for judgment of the other members of this

Court. Having done so, I have come to the conclusion that, for the reasons given by Davies J.A.,

the appeal should be dismissed.

In his summing up, the learned trial judge more than once directed the jury that, so far as

the appellant William Gilbert was concerned, the Crown case of murder against him was that he

had realised some time before they got to the scene of the killing that his co-accused Donald

Gilbert and Harding, or one of them, intended to kill Wintre Linsley or do him grievous bodily

harm, and, with that knowledge, he continued to drive the vehicle carrying all four of them to an

isolated area. It was, Mackenzie J. went on, submitted by the Crown at the trial that by doing so the accused William Gilbert had “done an act for the purpose of enabling or aiding Donald

Gilbert and/or Harding to commit the offence, a killing with intent to kill or do grievous bodily

harm”.

On appeal, no challenge was made to his Honour’s summing up on that aspect of the

case. Nor could it be. If the jury were satisfied beyond reasonable doubt of the matters specified,

the appellant was guilty of murder under s.7(b) or s.7(c) of the Criminal Code. On appeal the

point taken by the appellant was that in summing up his Honour had also said that a verdict of

manslaughter against the appellant was open only if the jury found neither of the other two

accused guilty of murder, but arrived at a verdict of manslaughter against both or one of them.

This, as the decision in The Queen v. Barlow (1997) 188 C.L.R. 1 has since established, was not

correct in law. A person may be convicted of manslaughter as a secondary offender under either

s.7 or s.8 even though the primary offender is guilty of murder. His Honour’s direction to that

effect accorded with binding authority prevailing at the time, which, however, was later overruled

by the High Court in the decision referred to.

At the trial there was no issue that the appellant had driven the others to the scene of the

killing. The only question for the jury was whether he had done so knowing that the intention

of either of his co-accused was to inflict death or grievous bodily harm on the victim. Of that,

the evidence against the appellant was of an unusually compelling kind. It is not often that the

prosecution has an explicit, or indeed any, direct admission from the accused himself about his

guilty state of mind at the relevant time. In that respect, the present case is exceptional..

The appellant participated in an interview with the police, which was tape-recorded. The

text is, so far as material, set out in detail in the reasons of Davies J.A. As can be seen, it

embodies clear admissions by the appellant that he knew (1) that his co-accused Donald Gilbert

intended to hurt the victim Wintre Linley; (2) that Donald Gilbert was drunk, and angry with the victim; (3) that when Donald Gilbert was in that condition he could not be stopped if he “got

started”; (4) that the appellant had a “feeling” that this was an occasion on which Donald Gilbert

was “going to start”.

It is true that at one stage of the interview the appellant also said that he did not know the

degree to which Donald Gilbert was going to hurt his victim. He said he knew he was “going

to hurt him but not all that bad ... shake him up, give him a couple of clips underneath the ear

hole and tell him to get his shit together ...”. By that, however, he explained that he meant

“punch him a couple of times”. That might be thought to detract from the weight of the

appellant’s incriminating admissions about his state of mind or knowledge at the time. But he

went on to add “I thought [Donald Gilbert] might have done major damage you know”. This

accorded with other admissions of the appellant, volunteered by him elsewhere in the interview,

that he knew Linsley had “chalky bones” or something like that; that all he had to do was to get

one hit on the jaw or in the head that could break his bones “so easy”; and further that: “Because I knew that [if] Don had of hurt him, with his chalky bones and that, the possibility of him crawling out to road ... you know he could die in the process”.

There was therefore ample evidence to sustain the verdict of murder against the appellant under

s.7(b) or s.7(c) of the Code as interpreted in The Queen v. Barlow. On his own admissions,

which were not the subject of any challenge at the trial, the appellant knew that physical violence

against Linsley was to be expected from Donald Gilbert, and also that Linsley was in fact

especially vulnerable to bone fractures if violence of that kind was used against him. As Parke

B. once said, what a party admits to be true may reasonably be presumed so. Even if it would

now be considered less a presumption of fact than a dictate of common sense, the statement to

that effect remains as true today as when his Lordship uttered it in Slatterie v. Pooley (1840) 6

M.& W. 665, 669; 151 E.R. 579, 581.

It is of course necessary to recall that in Slatterie v. Pooley Parke B. was careful to add

that the “weight and value of such testimony is quite another question. That will vary accordingly

to the circumstances, and it may be quite unsatisfactory to the jury”. Accepting that perhaps

self-evident qualification, the question here is whether there was any reason why the jury in this

case should have rejected or doubted the reliability of the damaging admissions made by the

appellant in his record of interview. The weight to be given to those admissions was a matter for

them, and the verdict and conviction can be sustained only if, despite the misdirection

complained of, the verdict of guilty can be seen as inevitable: Wilde v. The Queen (1988) 164

C.L.R. 365, 373; or, to express it another way, this Court can safely eliminate the possibility that

the accused has thereby lost a real chance of acquittal that was fairly open to him: K.B.T. v. The

Queen (1997) (H.Ct. unrep. Dec.9, 1997), citing Mraz v. The Queen (1955) 93 C.L.R. 493, 514.

For my part, I can discover no rational ground on which a jury of 12 reasonable members

of the community would have discounted the critical admissions in the recorded interview. The

interview was conducted on 29 July 1994, which was little more than a fortnight after the date

on which the killing was alleged to have occurred and at a time when the appellant might be

supposed to have had a good recollection of the matters about which he was speaking including

his state of mind at the time. The appellant did not give evidence, and no question of divergence

between any oral testimony at the trial and his statements in the record of interview therefore

arises. The material on which the Crown case was based comes before this Court in the same

form as it was presented to the jury at the trial. The detailed knowledge disclosed in those

statements of the personal idiosyncrasies of both his co-accused and the victim is not of a kind

that one would reasonably expect an accused person to possess, or admit to having had, if it was

not both reliable and true. There is no discernible basis on which a jury of reasonable persons,

properly instructed, could rationally have rejected the admissions made by the appellant in the course of the interview. No such basis was advanced in the course of submissions before us. For

the jury to have discounted the appellant’s own admissions of his actual knowledge of Wintre

Linsley’s susceptibility to serious physical injury and of his brother Donald Gilbert’s probable

action against him would in the circumstances have been perverse. The Court should not ascribe

such a conclusion to the jury in this case without having some perceptible reason for doing so.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 7 of 1996.

Brisbane

Before Davies J.A.

McPherson J.A.

Pincus J.A.

[R v. W Gilbert]

T H E Q U E E N

v.

WILLIAM LAWRENCE GILBERT

Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 February 1998

This is an appeal by William Lawrence Gilbert, who was convicted with Jason David

Harding and Donald Bruce Gilbert of the murder of one Linsley. I have dealt with the evidence

which was adduced at the trial in my reasons dealing with the other two appellants, delivered

today. For present purposes it is enough to say that the appellant William Gilbert drove Harding

and Donald Gilbert from a house at Tewantin in a car which contained Linsley and that the

appellant returned to the house driving a car from which Linsley, who had been beaten to death

in the bush, was absent. There was no evidence that William Gilbert actually participated in

striking Linsley. A basis on which he might have been held guilty of murder, as he was, was by

application of the construction of s. 8 of the Code laid down in Hind and Harwood (1995) 80

A.Crim.R. 105. It is now clear, since the High Court's decision in Barlow (1997) 188 C.L.R. 1,

that the jury should have been told that if one or both of Donald Gilbert or Harding murdered Linsley, William Gilbert might be held guilty of murder under s. 8, or of manslaughter only,

under the same section. As Mr R F Greenwood Q.C., who led Mr Feeney for the appellant,

pointed out, the jury asked the judge whether if either Harding or Donald Gilbert was convicted

of murder William Gilbert could be convicted of manslaughter and the answer given was in

accordance with Hind and Harwood.

The only argument which has been advanced by the Crown against what seems to be a

necessity for a new trial is a principle said to be derived from a series of decisions beginning with

Ross (1922) 30 C.L.R. 246. I have discussed these cases in Donald, Jeffrey and Pascoe (C.A.

No. 309 of 1996, C.A. No. 154 of 1997, C.A. No. 242 of 1997, 19 December 1997). It is not

correct, in my view, that a failure to leave manslaughter to the jury, in a case where it convicts

of murder, must always be held not to constitute an injustice. If there were decisions to the

contrary, I would not follow them; I refer particularly, in this connection, to the passage from

Evans and Lewis [1969] V.R. 858 at 871, applied in Iannazzone [1983] 1 V.R. 649 at 653, 654.

I would add only that the decision in Spratt (1982) 8 A.Crim.R. 361 does not adopt, as a

universal proposition, that the fact of conviction of a greater offence is always a good answer to

a complaint of failure to direct the jury that a verdict of a lesser offence is available: see p. 362.9.

I have had the advantage of reading the reasons of Davies JA and those of McPherson JA.

I have considered the admissions made by this appellant which have led their Honours to the

conclusion that a conviction of murder under s. 7 of the Code was inevitable. While I appreciate

that the evidence of the admissions would have made it difficult, perhaps, for the jury to arrive

at any other conclusion, I am in the end unable to agree with their Honours’ view. It appears to

me that a rational jury could have failed to be satisfied, to the requisite standard, that this appellant intentionally participated in the murder: Giorgianni (1985) 156 C.L.R. 473 at 506,

Yorke v. Lucas (1985) 158 C.L.R. 661, 666, 667.

I would have allowed the appeal, set aside the conviction of murder and ordered a new

trial.