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

WILLIAM LAWRENCE GILBERT

Appellant

___________________________________________________________________

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

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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

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…

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 Gilbert

Details

AGLC: R v Gilbert [1998] QCA 13
Case: [1998] QCA 13
Decision Date: 17/02/1998

CaseChat Overview and Summary

William Lawrence Gilbert, along with co-accused Jason David Harding and Donald Bruce Gilbert, was convicted of the murder of Linsley. Gilbert appealed against his conviction, arguing that the trial judge's direction to the jury regarding the availability of a manslaughter verdict was incorrect. The central legal issue was whether the trial judge's direction, which did not allow for a manslaughter conviction if the jury convicted the appellant of murder, constituted a miscarriage of justice.

The Court of Appeal considered the evidence against Gilbert, including his admissions during a police interview that he knew his co-accused intended to harm Linsley and that Linsley was vulnerable to serious injury. Despite this, Pincus J.A. dissented, arguing that a rational jury could still have reasonably acquitted Gilbert of murder, finding instead that he was guilty of manslaughter. Davies and McPherson JJ.A. concluded that the overwhelming admissions by Gilbert rendered a murder conviction inevitable, and thus the appeal was dismissed.

The Court of Appeal, with Pincus J.A. dissenting, upheld the conviction of William Lawrence Gilbert for the murder of Linsley, finding that the overwhelming evidence of his admissions rendered any other verdict highly improbable.

Orders