R v Gilbert

[1998] QCA 12

IN THE COURT OF APPEAL	[1998] QCA 012
SUPREME COURT OF QUEENSLAND

C.A. No. 6 of 1996.

Brisbane

[R v. D Gilbert]

T H E Q U E E N

v.

DONALD BRUCE GILBERT

Appellant

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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, each concurring as to the
order made.

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APPEAL AGAINST CONVICTION DISMISSED.
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CATCHWORDS: Criminal Law - Murder - appeal against conviction - whether failure of trial judge to warn jury of danger of acting upon the testimony of a co-accused and failure to sum-up to jury with respect to s. 8 Criminal Code as stipulated in Barlow lost the appellant a chance which was fairly open to him of being acquitted - whether no substantial miscarriage of justice actually occurred.

Criminal Code s. 8

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

Counsel:	Mr A J Rafter for the appellant. Mrs L Clare for the respondent.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	15 August 1997.
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 17 February 1998

I agree that the appeal should be dismissed for the reasons given by Pincus J.A.

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.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 February 1998

This is an appeal from a conviction of murder. The appellant, together with Jason David Harding and William Lawrence Gilbert, was convicted after a joint trial of having murdered one Linsley on 14 July 1994. The Crown case against the appellant was extremely strong; he admitted to police that he killed Linsley; but Mr Rafter for the appellant says that his conviction should be set aside because the judge misdirected the jury. As finally put, the arguments were two only: that the judge failed to warn the jury of the danger of acting upon the testimony of the appellant's co-accused Harding, insofar as it implicated the appellant, and that the judge failed to sum-up to the jury with respect to s. 8 of the Criminal Code along the lines stipulated in Barlow (1997) 188 C.L.R. 1. It is clear that there was no such accomplice direction with respect to Harding's evidence as should have been given and that the judge did not sum-up, with respect to s. 8, in accordance with the High Court decision in Barlow. The judge summed-up 18 months before the High Court decision was given and his Honour applied the then ruling decision of Hind and Harwood (1995) 80 A Crim.R. 105.

The question then becomes whether the matters I have mentioned might have made a difference or, to put the point more precisely, whether the failure to direct the jury about Harding's evidence and to direct it in accordance with Barlow lost the appellant “a chance which was fairly open to him of being acquitted”: Mraz (1955) 93 C.L.R. 493 at 514. There is no question of the misdirections complained of having led to the trial being fundamentally flawed.

The Crown case was that Linsley was murdered in the evening of 14 July 1994. His corpse was found 12 days later and the day after that a post-mortem was done by a Dr Williams who was supplied, in addition to the body, with fragments of skull which had been found in the vicinity. The doctor said that the strength of Linsley's skull bones was

“probably between 80 and 90 per cent of normal”. The doctor attempted to reconstruct

the skull from the recovered parts, but some were missing. He was able, however, to say that there were likely to have been blows to the face and to the back of the head. The post-mortem findings appeared to accord with a description which the appellant gave to the police of how he dispatched Linsley:

“ . . . I belted him back with one and one just across the face and one
across the back of the head which, which killed him”.

“ . . . that's when I grabbed it [a piece of wood] off him and as I recall I hit him twice with it. And it wasn't really hard that I hit him. And the second one on the back of the head, which was just a normal swing at him, it was when I assumed that he died and I just frieked”

“ . . . when I actually hit the back of his head and I seen what damage it

done I like just freaked . . ."

”When ah, what injury did the second blow do to the head?-- It opened
right up.

And what do you mean by that?-- Um I'm sure that it cracked his skull open and that's the blow that killed him.”

These quotations are from tape and video recorded interviews. Their content is not in issue. It appears from the judge's summing-up that the principal points taken on behalf of the defence in the appellant's trial were that the jury could not be satisfied that the appellant had the necessary intent to constitute murder - i.e. an intention to kill or do grievous bodily harm - and secondly, self-defence. There was no evidence called by or on behalf of the appellant to contradict the admissions he made to the police.

In addition to those admissions, three witnesses who lived with or near the appellant gave evidence which supported the veracity of his confessions. Rebecca Ann McGrath who described her relations with the appellant as being “de facto”, but did not live with the appellant full-time, said that the appellant's two co-accused (Jason David Harding and William Lawrence Gilbert) arrived at her house on the morning of 14 July 1994, that being the date of the alleged murder. She said there was a conversation between the appellant and herself; William Gilbert and one Shane Brannigan were also present. When asked about the conversation she said she did not really remember it, was declared adverse, and cross-examined on statements she had made to the police. She admitted having made them. From those statements it appeared that the witness had told the police that the appellant had said “We're taking Whinter (sic) for a drive”. The victim's first name was Whintre. According to the statement the witness said,

“What to do?” and the appellant said something like “We're going to do some serious

damage” and “We're going to deal with him”. She said to the appellant words to the effect, “What, are you going to bash him?” and then said, “What, kill him?” to which the appellant replied quietly, moving his face close to the witness', “What do you think?”. In the Magistrates Court the witness had given evidence to the effect that “they” were taking Linsley for a drive and were going to do some serious damage.

McGrath gave evidence, before the jury, that the three co-accused and Linsley left her house about sunset. When she next saw the appellant some hours later it was, it appears, in the presence of his co-accused that the appellant told her that Whintre had gone to a shallow grave, that he had dragged Whintre out of the car and had bashed him a few times. According to the witness, the appellant said that Linsley had asked why and the appellant replied, “Just take it like a gentleman”; the appellant also said that Linsley had been lying about the metal plates in his skull and that his brains had splattered everywhere. The appellant told the witness that he had had a shower at the residence of Catherine Ford and Stephen Anderson. A little later Stephen Anderson came to McGrath's house and there was further conversation in which the appellant told Anderson “that he'd gotten rid of confirmed rock spider”. Catherine Ford gave evidence that she lived with Stephen Anderson, close by the house of Rebecca McGrath. Her evidence was to the effect that after 8 pm on the day in question the appellant arrived at her house and asked to have a shower, saying he had “had a blue”. She noticed there was blood on the appellant's face, hands and chest; there was also blood on his clothing, mainly in the chest area. She said the appellant's brother William Gilbert obtained a towel and some clothes for the appellant and brought them to the witness' house. William Gilbert asked for bleach and the witness supplied that; after the appellant had used the bathroom the witness smelt bleach in it. When the appellant had had his shower, Catherine Ford heard discussions among a group which she thought consisted of the three co-accused as well as Brannigan; someone said “he's dead”. Stephen Anderson said in evidence that he came home on 14 July 1994 at a time he estimated to be between 8 pm and 9 pm. Having been told something by Catherine Ford, he went to the residence of the appellant and Rebecca McGrath. He said to the appellant, “Is it true?” and the appellant said, “Yeah, I've - I done it. He's out at Boreen Point”. Anderson asked him why and the appellant said “he was a rock spider”.

None of this evidence was contradicted and, short of postulating a conspiracy between a group of people who were or had been friends of the appellant, it is difficult to imagine how a jury could have failed to accept that the appellant had, as he told the police, killed Linsley.

I have mentioned that the defence, it appears, raised issues of self-defence and lack of the requisite intent before the jury. The misdirections relied on had nothing to do with either of those issues. The failure to give a warning about acceptance of the evidence of Harding (no warning being asked for) was an omission which was not, perhaps, surprising. His sworn version of events was to the effect that although he travelled out in a car with Linsley, William Gilbert and the appellant, he had nothing to do with the attack on Linsley; he said in effect that his only connection with the affair was that at the appellant's request he gave some help to cover Linsley's body up. But, as appeared from further questioning, he had told the police quite different stories, including one to the effect that he was solely responsible for Linsley's death; he also admitted that he had at another time given the police a version to the effect that he had nothing whatever to do with the matter, having dropped Linsley off at a hotel. The Crown suggested in argument that there were still further versions, but it seems unnecessary to go into that. As it appears to me, the only possible basis a jury could have had to doubt the truth of the appellant's electronically recorded confessions to the police, supported by the evidence of the witnesses I have mentioned (McGrath, Ford and Anderson) was the fact that one of the stories which Harding had told the police was that he, Harding, had been solely responsible for Linsley's death.

As Mr Rafter pointed out, manslaughter was left to the jury as being a verdict which was open if the jury were not satisfied on the question of the appellant's intent, but the judge did not place before the jury the possibility of finding a verdict of manslaughter on a basis consistent with the decision in Barlow (above). According to the explanation of s. 8 of the Code at p. 10 of the report in 188 C.L.R., as applied to the present case, the judge might have told the jury that, if they did not accept that the appellant was guilty of murder under s. 7, they might consider whether he was guilty under s. 8 on one of two bases: first, that the appellant and others set out to assault Linsley, that in the prosecution of that unlawful purpose a murder was committed, that being a probable consequence of the prosecution of the purpose; secondly, that murder was not a probable consequence of the prosecution of that purpose, but unlawful killing was.

Section 8 required consideration only if the jury were not satisfied that the appellant himself killed Linsley. As I have pointed out the appellant said he did kill Linsley and three uncontradicted witnesses gave evidence which supported that. Harding also gave evidence against the appellant but was, as it seems to me, a witness whose testimony could hardly have influenced a jury much.

It is my opinion that neither of the misdirections relied on could have made any difference to the outcome. As to s. 8, that could have become relevant only if the jury entertained some fanciful scenario, not supported by 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. As to a warning about Harding, that could hardly have been necessary in view of the character of Harding's evidence and in any event it is clear that the jury did not accept Harding's final story.

In my opinion, unless the legislative provision that we may dismiss the appellant's appeal if we consider “that no substantial miscarriage of justice has actually occurred” (s. 668E(1A) Criminal Code) has become a dead letter, this must be a case in which that is the proper solution.

I would dismiss the appeal.