R v Gilham - [2007] NSWSC 231

No judgment structure available for this case.

CITATION: R v Gilham [2007] NSWSC 231

HEARING DATE(S): 09/10/2006, 10/10/2006,11/10/2006

JUDGMENT DATE :
21 March 2007

JUDGMENT OF: Howie J at 1

DECISION: The application for a stay of the indictment is refused.

CATCHWORDS: Criminal Law - Practice and Procedure - Ex officio indictment for two counts of murder - stay of proceedings as abuse of process - delay and loss of evidence - oppression from multiple proceedings - double jeopardy following plea of guilty to manslaughter - Sentencing - effect of sentencing remarks on agreed facts - inconsistent conduct by Crown - Double jeopardy - effect of plea of guilty to manslaughter on indictment for murder - subsequent proceedings for murder of different victims.

LEGISLATION CITED: Coroner's Act 1980 - s 19
Crimes Appeal and Review Act 2001 - s 102
Crimes Act 1900 - s 394A
Criminal Procedure Act 1986 - ss 153, 391
Evidence Act 1977 (Qld) - s 132C
Crimes Act (Vic) - s 391

CASES CITED: The Queen v Carroll (2002) 213 CLR 653
R v Adler (NSWCCA, unreported, 11 June 1992)
R v Goldburg (NSWCCA, unreported, 23 February 1993)
R v VPH (NSWCCA, unreported, 4 March 1994)
R v Tolmie (NSWCCA, unreported, 7 December 1994)
Jago v District Court (1989) 168 CLR 23
R v RWO [2002] NSWCCA 133
R v Helmling (NSWCCA, unreported, 11 November 1993)
R v Slattery [2002] NSWCCA 367
R v Griffin [2006] ACTSC 77
Holmden v Bitar (1987) 47 SASR 509
Duncombe-Wall v Police [1998] SASC 6754
R v Davis (1995) 57 FCR 512
Barton v The Queen (1980) 147 CLR 75
R v Garjee (English Court of Appeal, unreported, 20
September 1994)
Pearce v The Queen (1998) 194 CLR 610
Island Maritime Ltd v Filipowski (2006) 80 ALJR 1168
R v Maxwell (1994) 34 NSWLR 606
R v Naraindeen (1990) 75 OR (2d) 120
Mraz v The Queen (No. 2) (1956) 96 CLR 62
Maxwell v The Queen (1996) 184 CLR 501
Chow v DPP (1992) 28 NSWLR 593
R v Palu (2002) 134 A Crim R 174
Walton v Butler [2004] QCA 465, (2004) 150 A Crim R 341
R v K; Ex parte Attorney General (Qld) [2002] QCA 260; (2002) 132 A Crim R 108
Rogers v The Queen (1994) 181 CLR 251
Garrett v The Queen (1977) 139 CLR 437
R v Storey (1978) 140 CLR 364
R v Calcedo [1986] VR 499
R v Young [1998] 1 VR 402
R v Z [2000] 2 AC 483
R v Degnan [2001] 1 NZLR 280
R v VN [2006] VSCA 111
Walton v Gardner (1993) 177 CLR 378
Williams v Spautz (1992) 174 CLR 509
R v Swingler (1995) 80 A Crim R 471
R v Gagliardi and Filipidis (1987) 45 SASR 418
R v Bloomfield [1997] 1 Cr App R 135

PARTIES: Regina v Jeffrey Gilham

FILE NUMBER(S): SC 2006/468

COUNSEL: M. Tedeschi QC with K. Shead - Crown
P. Boulten SC with P. Lang - Accused

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

HOWIE J

WEDNESDAY 21 MARCH 2007

2006/468 Regina v Jeffrey GILHAM

JUDGMENT
Background

1 HIS HONOUR: On 28 August 1993 three persons were stabbed to death at domestic premises in Prince Edward Road, Woronora. One was Steven Gilham, another was his wife Helen Gilham and the third was one of their two sons, Christopher Gilham. Each had been killed by multiple stab wounds to the chest. A fire had been lit in the premises and the bodies of Mr and Mrs Gilham were partly burned.

2 On 29 August 1993 Police charged the remaining son, Jeffrey Gilham (the accused), with the murder of his brother Christopher. He was committed for trial to the Supreme Court. On 5 April 1995 the accused pleaded guilty to the manslaughter of his brother, which plea was accepted in full discharge of the indictment for murder. The basis of the plea of guilty was provocation arising from the killing by Christopher Gilham of his parents.

3 Mr Justice Abadee sentenced the accused on 7 April 1995. He deferred passing sentence on the accused upon his entering into a recognisance to be of good behaviour for five years and subject to certain conditions including overseas travel restrictions and psychiatric assistance.

4 On 21 February 2006 the Director of Public Prosecutions (the Director) filed an ex officio indictment in the Supreme Court alleging that the accused murdered his parents.

5 On 29 September 2006 by Notice of Motion the accused sought a permanent stay of proceedings.

6 The application raises three bases for the submission that it would be an abuse of process to permit the Crown to proceed on the charges of murder. The first ground is that it would be oppressive in the circumstances to subject the accused to a trial by reason of the delay in commencing the proceedings and its attendant prejudice to the accused. The second ground is that it is not open to the Crown to seek from the jury verdicts that would be inconsistent with the conviction of manslaughter following the plea of guilty to that offence in 1995. Although it is conceded that there is no patent inconsistency between a verdict of manslaughter of his brother and verdicts of murder of each of the parents, it is submitted that there must of necessity be a factual inconsistency between the verdicts and such, if allowed to stand, would bring the administration of justice into disrepute. The third ground is that it would be vexatious and oppressive to bring a further prosecution arising from the incidents of 28 August 1993.

7 As has been noted, the accused pleaded guilty in the Supreme Court to the offence of manslaughter in respect of his brother, Christopher, and the Crown accepted that plea in full satisfaction of the indictment for murder. The Crown Prosecutor at the outset of the proceedings announced that the plea of guilty to manslaughter was accepted on the basis of provocation. When the Judge asked what was the “matter of provocation relied upon”, the Crown Prosecutor answered:

8 A statement of facts was tendered on the sentencing proceedings. Those facts were as follows:

“About 4.50 am on Saturday, 28 August 1993, Police and Fire Brigade officers attended 117 Prince Edward Park Road Woronora, in response to calls to “000”. Upon arrival they discovered that the bedroom, loungeroom and kitchen areas, which comprise the upstairs portion of the house, were well alight.

After the fire was extinguished the charred bodies of Stephan John Gilham (58 old) and his wife, Helen Margaret Gilham (55 old) were respectively located in the main bedroom and loungeroom in those premises. Upon further examination the deceased body of Christopher John Gilham (25 old) was discovered in the downstairs room who had been stabbed a number of times. A post mortem examination revealed that Stephen Gilham had been stabbed 29 times, Helen Gilham 17 times and Christopher Gilham 17 times. The deceased persons were the mother, father and brother of the accused.

The accused was later arrested at his home after it became apparent, from his own admissions, that he was responsible for the death of his brother Christopher. He was subsequently conveyed to Sutherland Police Station where he was later electronically interviewed in relation to the matter.

The accused informed Police that he responded to a frantic intercom call from his mother after he was wakened from his dwelling, being a converted boatshed some 50-70 metres from the main house on the river line at the rear of the property. Upon entering the house the accused allegedly saw his brother Christopher standing beside their mother, who was lying on the floor, who the accused presumed was deceased. As the accused approached his brother he (the accused) alleged his brother stated, words to the effect, ‘I’ve killed Mum and Dad”, and with that saw a lit match in his brother’s hand. As the accused drew nearer, his brother placed that match onto their mother’s body which ignited immediately. The fire then spread rapidly to the main bedroom where the accused saw the presumed deceased [body] of his father lying on the floor. With that, the accused stated that he responded and grabbed a knife, which was allegedly on the floor near to where his brother was standing, picked it up and chased his brother down a spiral staircase to a downstairs room where he fatally stabbed his brother a number of times. The accused stated that he attempted to return upstairs but was unsuccessful due the to well developed fire and smoke in the upstairs portion of the house. He reported the incident to a neighbour shortly thereafter who notified ‘000’ about 4.35am.

The accused has given an account of events to Police which in their simplest form are a feasible account of what may have happened. The investigation to date has been unable to refute that scenario, despite a thorough scientific analysis and evaluation of the scene and available evidence.

9 In his sentencing remarks on 7 April 1995, the Judge referred to the statement of the prosecutor, set out above, and accepted it as reflecting a summary of the evidence before him. He described the offence as “manslaughter in circumstances of grave and, indeed, even extreme provocation”. Later his Honour said this:

10 Later, when recounting the circumstances of the manslaughter, the Judge adopted the facts of the killing as set out in the tendered Statement of Facts. His Honour also referred at length to the accused’s interview with police. He then went on:

11 There were psychiatric and psychological reports tendered in evidence before the Judge describing the reaction of the accused to the acts of his brother and his mental state at the time of the killing. It is unnecessary to refer further to that material but the views and opinions expressed in those reports were based on an acceptance of the facts as stated by the accused in his interview with police as to the circumstances of the killing. The reports referred to the effects of the trauma upon the accused and his prospects for rehabilitation. In addition there was a considerable body of lay evidence touching upon the relationship of the accused and the remaining members of his family including his grandmother. The evidence was to the effect that “the whole family is behind him”.

12 On 8 June 1995 an inquest was held touching the death of the accused’s parents before the Deputy State Coroner. The Officer in Charge of the investigation gave evidence at the inquest of the account given by the accused in a recorded interview as to the circumstances surrounding the killing of his brother describing it as “feasible”. He also noted that this version of events had not been refuted by evidence. The Coroner concluded, in effect, that the accused’s brother, Christopher, had killed his parents.

13 It appears that after 1995 the accused and members of his family fell out apparently over the administration of the parents’ estate. The family agitated for a further investigation into their deaths. This culminated in a television programme in 1997 raising the family’s concerns.

14 A second police investigation commenced in September 1999. Ultimately advice was sought from the Director and he recommended that the matter be referred to the Coroner.

15 On 10 April 2000 the Deputy State Coroner commenced a second inquest touching upon the death of the accused’s parents. On 28 April 2000 the inquest was terminated as the Coroner found that there was evidence capable of satisfying a jury that a known person had committed an indictable offence. The depositions of the inquest were forwarded to the Director pursuant to s 19 of the Coroner’s Act. In effect the Coroner found that the accused should stand trial for the murder of his parents.

16 However, the Director declined to prosecute the accused on the basis that there was no reasonable prospect of a conviction. The Director notified the accused of his decision on 21 July 2000.

17 On 10 May 2001 the accused’s uncle, Tony Gilham, commenced a private prosecution of the accused for the murder of his parents. On 6 June 2001 the prosecution was taken over by the Director and terminated. On that date the Director notified the accused of his decision. On 13 June 2001 the accused was discharged in the Local Court when the prosecutor offered no evidence upon the informations for murder.

18 There were questions raised about the failure to prosecute the accused for his parents’ murder in State Parliament. In September 2001 the Attorney General stated that he would not intervene in the matter, noting that he had received advice that a prosecution was unlikely to succeed. In November 2001 the Attorney General again stated in effect that he would not take any action in respect of the further investigation or prosecution of the accused.

19 On 22 July 2004 a review of the investigations previously conducted into the killings was undertaken. In October 2004 a re-investigation was commenced into the killing of the accused’s parents. A brief of evidence was sent to the Director on 22 November 2005 seeking advice as to whether there was sufficient evidence to charge the accused with the murder of both parents.

20 As has been noted, the Director filed an ex officio indictment in this Court on 21 February 2006.

21 The Crown tendered before me a detailed analysis of the evidence upon which it would rely in order to prove that the accused murdered his parents. In order to make out its case the Crown would have to prove beyond reasonable doubt the version given to the police by the accused was false or to put it another way must disprove that there was any real possibility that Christopher killed his parents. Further, in asking the jury to find the accused guilty of murdering his parents, the Crown must ask the jury to find facts consistent with the accused murdering Christopher and inconsistent with him killing his brother under the effects of provocation.

22 The prosecution case would of course be a circumstantial case. The Crown has listed eleven categories of evidence upon which it would rely to prove that the accused killed his parents. It has not been suggested by Mr Boulton that the Crown could not prove a case of murder against the accused: the stay of the indictment is not sought on the basis that the Crown case is foredoomed to failure. There was no submission made that there was little prospect of the prosecution succeeding. The only criticism raised as to the evidentiary basis of the Crown case against the accused was that the Crown had, or could have had, all of the evidence it is now relying upon when it decided to accept the plea to manslaughter. In effect it was submitted that the Crown is for all practical purposes in no better position to prove that the accused killed his parents at the present time than at any other time when it was considering whether charges should be laid against the accused for the murder of his parents.

23 In these circumstances it is unnecessary to consider the Crown’s evidence and arguments in any great detail. However, before considering the nature of the evidence that would be relied upon by the Crown if there were to be a trial, I should summarise very briefly the physical evidence seen at the house shortly after the killings and give a little more detail of the accused’s version of events.

The physical evidence

24 The accused resided in a converted boatshed at the rear of the main premises in which his parents and brother lived. The main house was of two storeys with the top storey at street level. An internal staircase connected the two storeys that led down to a multi-purpose room and Christopher’s bedroom.

25 After the fire was extinguished police and fire brigade officers found the bodies of the accused’s parents and brother. There was fire damage to the top storey of the house in the lounge room, main bedroom and kitchen areas. Mr Gilham was on his back on the floor of the main bedroom. Mrs Gilham was face down in the lounge room. Christopher was on his back in the lower floor billiard room. He was dressed only in a shave coat and his body was unaffected by fire.

26 A knife was located near the body of Christopher with the blade pointing to the ceiling and the handle tucked between the body and his left arm. In the laundry was a syringe filled with a paste made of paracetamol. There was a cup containing a similar paste and an empty blister pack. Two empty syringes were found in Christopher’s bedroom. There was an axe located on the floor of the main bedroom between the body of Mr Gilham and the bed. A “jerry can” was found outside the house next to the garden hose and near the garbage bins. The lid of the can was unlocked and a short length of hose was found in the carport.

27 The accused stated that he was sleeping when he received a call from his mother on the intercom. She was yelling and he could not understand her. He rushed to the house but locked the door of the shed as he left. He entered the house through the sliding kitchen doors. He could see his brother in the lounge room near the piano.

28 As the accused entered Christopher told him that he had killed their parents and proceeded to set fire to his mother. The accused could see his father in the bedroom. He did not attempt to put out the fire but picked up the knife that was lying on the lounge room floor. The fire spread fast from his mother to his father in the main bedroom. By the time he took up the knife and chased his brother downstairs, he could see that both his parents were on fire.

29 After he stabbed his brother he went upstairs and saw smoke. He left the house by the sliding doors to get help. He then went to a neighbour, Mr Warner, who rang 000.

30 The first of the circumstances to be relied upon by the Crown is the similarities in the stab wounds inflicted upon each of the three victims. Put shortly the Crown would ask the jury to conclude that they reveal that the same person killed all three victims. The Crown relies upon the total number of wounds inflicted upon each victim, the number of grouped stab wounds and the fact that the grouped wounds were all in the heart region. It argues that the nature and the number of the wounds indicate that the killer was acting in “extreme anger” and not just with an intention to kill the victim.

31 The Crown intends to call expert evidence as to the similarity of the wounds inflicted on each of the deceased although it concedes that those witnesses could not give evidence that it was the same person that killed each, as that would be an opinion outside the witness’s expertise.

(b) voices heard prior to 000 call

32 The Crown would rely upon evidence of voices heard at the Gilham property about half an hour before the 000 call was made at 4.34am. A witness would give evidence of raised female and male voices arguing for a period of about 5 minutes. The Crown will claim that the female voice was Mrs Gilham, the only female at the house. The Crown argues that, had Mr Gilham been alive at that time, there would have been evidence of defence wounds on his body, but the evidence indicates that he was killed while he slept in bed. The Crown contends that this must have been before the shouting. There was no further noise heard from the house before it was set alight at about 4.30am.

33 According to the Crown, the jury could conclude that the sounds heard were the killing of Mr and Mrs Gilham about half an hour before the 000 call and that this was inconsistent with the accused’s version of Mrs Gilham making a call for help on the intercom just prior to the 000 call. The Crown argues that it would, therefore, be open to the jury to find that the accused’s version is untrue.

(c) evidence concerning the boatshed, keys and folded clothes

34 The police found that the boatshed, where the accused lived, was locked and the keys were upstairs in the house. Police also found clothes, worn by the accused earlier that day, under the lounge in the house. They were affected by fire. The sliding door of the house, from which he exited, was closed.

35 The Crown argues that these facts are inconsistent with the version given by the accused. Why, asks the Crown, would the accused lock his premises and take his keys, if he were answering a distress call from his mother? Why would his clothes be found in the house, if, as he said, he left the house after watching television to go to the boatshed where he went to bed? Why would he close the sliding door, if the house were on fire? The Crown would submit to the jury that the evidence is inconsistent with the accused’s version and only consistent with him taking off his clothes in the house before killing his parents.

(d) the smell of accelerant on his breath

36 The neighbour, to whom, the accused raised the alarm, smelled kerosene and smoke on the breath of the accused. In what the Crown describes as “significant fresh evidence obtained”, one of the fire brigade officers, Mr Wright, says that he noticed the smell of petrol coming from the accused’s body as he sat on the curb. A “jerry can” with a very small amount of petrol and a piece of hose were found in the garden near the house.

37 Initially the accused could not explain to police why he smelled of kerosene but later told of an incident in which he and his father syphoned petrol for the family boat. However, there is evidence that the petrol in the can was not suitable for the boat. Mr Gilham’s brother says that it is inconceivable that he would have used wrong petrol for the boat.

38 The Crown would argue to the jury that this was evidence consistent with the accused having unsuccessfully tried to siphon petrol, perhaps from a motor vehicle, to start the fire. The accelerant used was not petrol but mineral turpentine. The Crown says the explanation given by the accused for his smelling of petrol at around 4.30am is untrue.

(e) absence of blood on the accused but wet hair

39 The accused had no blood on his shorts and only a spot on his foot from which no blood type could initially be ascertained because it was so diluted. It was later found to be consistent with that of his mother. His shorts, the only clothing he was wearing, were not scientifically tested for blood and now cannot be found.

40 The Crown argues that the absence of blood on the accused is consistent only with him having cleaned himself after the killings. This, the Crown contends, is inconsistent with his version of leaving the house straight after killing his brother. The Crown argues that, even had he stabbed only his brother, he would have had blood on him consistent with splatters in the house.

41 The Crown maintains that it has new evidence from two fire officers who claim to have noticed that the accused had wet hair, as though he had taken a shower. One of them believed at the time that the accused must have attempted to put out the fire with a hose. Further in a statement dated January 2005, a neighbour, Ted Warner, says that the accused’s hair appeared “semi wet”” and “groomed”. The Crown contends that this evidence is inconsistent with the account given by the accused that gave him no occasion or opportunity to take a shower after killing his brother.

(f) the seat of the fire

42 The Crown contends that evidence of the location of the seat of the fire is of “considerable importance in this case”. There are a number of expert witnesses both within and outside the Fire Brigade available to give evidence about this matter. The Crown contends that the evidence that would be given by one, or more, of these experts is inconsistent with the version given by the accused to police about the circumstances in which his brother started the fire. The Crown argues that the evidence points to the fire starting in the bedroom and that its spread was not consistent with the accused’s version.

43 The Crown would argue to the jury that, if the accused’s version is incorrect in this aspect, the only reasonable explanation open is that the accused lied about how the fire started because he was responsible for the fire, and hence the killing of his parents. The Crown would argue that the fire was set to eliminate evidence that was inconsistent with his account.

44 The Crown also would rely upon the absence of the remains of any container that might have been used by his brother to start the fire and yet, on the accused’s account, his brother would have had no time to have disposed of the container before the accused attacked him.

(g) absence of evidence of blood, fingerprints and glasses

45 There is considerable evidence as to water penetration into the room in which Christopher’s body was found. The water came down the stairs during attempts to put out or stem the fire in the upstairs part of the house. This may, on one view, be the explanation for the fact that none of his parent’s blood was found on Christopher and no blood at all or fingerprints were found on the knife used to kill him and his parents. However, the Crown would argue to the jury that no amount of water penetration could explain these facts. There is also expert evidence that the knife must have been washed.

46 The Crown would argue to the jury that the absence of a significant amount of blood on the shave coat worn by Christopher is inconsistent with him having inflicted the injuries upon his parents from which they died. There was no DNA testing done of any object, including the shave coat. Traditional blood typing tests showed that blood found on the shave coat could have been that of Christopher or his mother. The Crown would argue that the blood found on the coat was centred around the wounds on Christopher and not consistent with spray patterns expected if he had killed his parents. The Crown would also argue that it was strange that he would kill his parents in a shave coat.

47 The Crown sees relevance in the fact that Christopher’s glasses have never been found notwithstanding evidence that his night vision was poor and he needed glasses to move about safely. The Crown would argue that he would not have murdered his parents without wearing his glasses. Rather the Crown says that the absence of glasses suggests he was awoken by the killing of his parents and was then confronted by the accused.

(h) manifest absurdities in the accused’s account

48 Notwithstanding the evidence given by the police officer at the first coronial hearing and the statement in the facts tendered on sentence as to the feasibility of the applicant’s account, the Crown would contend before a jury that the account contained “manifest absurdities”. These include “the inherent unlikelihood” of the following facts: Christopher having time to kill his mother and lay the accelerant in the time the accused took to get to the house from the boatshed; Christopher admitting to having killed their parents when about to set fire to them and then setting the fire rather than attempting to kill the accused; the accused killing his brother rather than seeking to assist his parents who might not have been dead to his knowledge or to put out the fire; the absence of anger or any other motive of the accused to kill his brother offered to the police.

(i) other evidence

49 The Crown relies upon what it says are inconsistencies in accounts given by the accused. It also argues that there was a motive for the accused to kill his parents in order to obtain their estate. The Crown would also rely upon a tape recording, recently discovered but made many years before the killing, in which the accused is said to have made statements indicating dissatisfaction with, what he saw, as the favoured status of his brother in the eyes of his parents. There is also the paracetamol paste found in a syringe belonging to the accused that the Crown says was the preparation for a different method of killing his parents. There is some evidence that Mrs Gilham had expressed concerns about the accused shortly before her death.

50 From the combination of these circumstances the Crown contends that there are four matters that would be of significance to a jury in finding beyond reasonable doubt that the accused’s version of events could not be true: (i) that the accused washed himself prior to starting the fire; (ii) that the killings occurred half an hour before the accused raised the alarm; (iii) that the accused had hydrocarbon on his breath from an attempt to obtain accelerant for the fire; (iv) that the fire started in the bedroom near his father’s body. The Crown submits that it has fresh evidence of significance at least in regard to matters (i) and (iii).

51 Evidence was called before me as to the circumstances in which the further investigation of the death of the accused’s parents occurred. There was much debate between the parties as to the relevance and quality of, what has been referred to as, fresh evidence arising from the further investigation and tending, in the Crown’s view, to prove that the accused murdered both parents. This fresh evidence is put forward by way of justification for the Director commencing a prosecution of the accused for the murder of his parents even though he had refused to do so on an earlier occasion and had brought such a prosecution commenced by Mr Gilham’s brother to an end.

52 Strictly speaking there is no need for the Crown to justify its actions. There is no suggestion that it has acted in the past, or is now presently acting, mala fides in the way it has conducted proceedings arising from the deaths of the parents and Christopher. Although the Crown had indicated that it was not going to proceed against the accused for the murder of his parents, it is not precluded by any rule of law or practice from now doing so. But it is relevant to the question of whether these proceedings are oppressive that the Crown asserts that there has been a change in the available evidence that now makes proceedings against the accused for the murder of his parents appropriate. Although there were submissions about the strength or otherwise of the new evidence, I do not understand that a decision on that question was seen as decisive of the outcome of this application either by the accused or by the Crown.

53 Detective Rupp was called by the Crown to give evidence about the reinvestigation. He stated that it was commenced in response to an affidavit received in May 2004 from Mr Warner, a neighbour of the Gilham family at the time of the killings. The receipt of this document led the police to review the previous investigation and make inquiries as to the availability of exhibits. The result of those inquiries was that the exhibits could not be located and Detective Rupp gave the opinion that they had been destroyed “probably around ’95 shortly after the accused was sentenced for the manslaughter of his brother”. The missing exhibits included all the physical evidence obtained from the scene of the killings. Following the review of the earlier investigations, a decision was made to re-open the investigation.

The fresh evidence

54 The fresh evidence now available to the Crown includes both expert and lay evidence. The expert evidence largely relates to the injuries suffered by each of the deceased, the seat of the fire, analysis of blood splatters and DNA testing. Some of that evidence was received as late as June 2006 but much of it was available at the time of the second inquest in 2000. It seems to me that this evidence largely confirms evidence that was available at the time the applicant was prosecuted for the killing of his brother. Most, if not all, of it would have been available at the time of the first prosecution had it been sought by the investigators or the Director.

55 The Crown sees particular significance in evidence now available about the state of wetness of the accused’s hair when the fire brigade was in attendance. There are statements from two fire officers obtained in 2005 about this subject. Officer Wright states that the accused’s hair was “not dripping wet but definitely wet.” Officer Polson states that “his hair was still wet but not dripping”. Mr Warner, the neighbour, in a statement dated 2004, states:

“I do not recall his hair being wet but I could equally not say that his hair was dry. His hair was shiny. It was what it looks like when I have wet hair after a shower and I have towelled it to near dryness and brushed or combed it”.

56 The Crown would argue that the only explanation for the accused having wet hair was that he had showered before seeking help, which fact would also explain the absence of blood on him. There is no possible basis upon which the accused’s version of events could be true and yet he had the opportunity or occasion to shower before leaving the house to seek help.

57 There is fresh evidence attempting to rebut the accused’s account of syphoning petrol for the boat. There is a statement from the then girlfriend of the accused indicating that she has no recollection of the accused and his father syphoning petrol despite the accused stating that she was present when it occurred. The brother of Mr Gilham would give evidence that Mr Gilham would never have considered using petrol from a motor vehicle to place in the engine of his boat.

58 There are recent statements of friends and associates of Christopher commenting on his need for glasses. There is also the tape of the accused making comments about his family in light of a book he was studying.

59 The accused submits that the fresh evidence is either not reliable or is insufficiently relevant to justify the commencement of further proceedings by the Director. In particular criticism is made of Mr Warner, the neighbour, and his recent statement made in relation to the state of the accused’s hair on the night of the killings. It is submitted that his most recent account is inconsistent with evidence he gave before the Coroner and to some extent with the statutory declaration he made in March 2004 that led to the rekindling of police interest in investigating the killings. The accused also points to the dramatic change in the attitude of Mr Warner from support for him at the time of sentencing to antipathy to him as a murderer in his declaration in December 2004.

60 The statements of the two fire brigade officers as to the state of the accused at the time they were fighting the fire are criticised on the basis that neither was asked to make a statement at the initial investigation. Their statements were taken in 2005, more than 11 years after the incident, and yet both now purport to give detailed evidence as to the state of the accused’s hair in somewhat similar terms.

61 It was submitted on the part of the accused that any fresh scientific evidence does not advance the prosecution case from that which it had at the time of charging the accused or at least by the time of the second coronial inquiry. It is also noted that no explanation is given for such evidence not being obtained at the time of the first investigation. It was submitted that these were attempts to bolster the prosecution case either to justify the further proceedings or to make the prosecution case appear more viable than it really is.

62 None of the witnesses to give fresh evidence were called before me. They will no doubt be subject to criticism at trial chiefly in relation to their reliability in light of the period of time that has elapsed since the events surrounding the killings and the making of their statements. At least Mr Warner and Mr Gilham’s uncle will be criticised on grounds of bias and the change in their attitude to the accused between the time of sentencing and the time of making the further statements.

63 In criticising the relevance of weight of the new evidence, my attention was taken by the accused to recent legislation permitting a further prosecution for an offence to be undertaken against a person who has been acquitted of that offence where there is “fresh and compelling evidence” that the person committed the offence. Section 102 of the Crimes Appeal and Review Act 2001 relevantly provides:

(1) This section applies for the purpose of determining under this Division whether there is fresh and compelling evidence against an acquitted person in relation to an offence.

64 The meaning to be attributed to the words “fresh” and “compelling” for the purposes of that Act do not seem to me to have any bearing on the resolution of the application before me. It is readily understandable that the fresh evidence that might trigger the Court of Criminal Appeal’s jurisdiction to order a re-trial under that legislation should have a very high degree of probative value and should not have been reasonably available at the time of the first trial. The legislation is concerned with permitting a re-trial after an acquittal of the charge to be re-tried. These are provisions that abrogate the law against double jeopardy at its very heart: the re-trial of a person who has been acquitted by a jury after a trial according to law.

65 Here, however, the question is whether it is oppressive for the Crown to commence proceedings against the accused for the murder of his parents in circumstances where the Crown has previously indicated that it had no present intention of proceedings against him for those crimes but rather had intervened to stop such a prosecution by his uncle. I accept that in considering the issue of oppression the existence or otherwise of cogent fresh evidence is a relevant consideration. But I doubt that, if there was a significant infringement of the rule against double jeopardy in the Crown proceedings with this prosecution, it would be a relevant consideration that there was fresh evidence now available to the Crown: The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 653 at [44] and [113].

66 I will consider further the question of the fresh evidence when considering whether the prosecution is so oppressive that it should be stayed.

67 The jurisdiction of this Court to stay a criminal trial by reason of delay in the commencement of proceedings cannot be doubted. The jurisprudence in respect of abuse of process caused by delay or otherwise is settled, although its application to any particular case can be problematic. It is unnecessary to set out the relevant principles in this judgment or to say any more about the power of this Court generally to protect itself from an abuse of its processes than the following brief observations.

68 The decision to grant a stay is often referred to as discretionary in that it requires a value judgment involving the weighing of different considerations that arise in the administration of criminal justice. In Carroll Gaudron and Gummow JJ said at [73]:

69 However, the ultimate question is one of determining whether it is in the public interest generally that the trial of the accused proceed or that the Crown be restrained from exercising its right to invoke the jurisdiction of this Court by the presentation of an indictment. The exercise of the Court’s power to restrain the Crown is an exceptional one and should only be exercised where the accused has proved to the Court that there is no other procedure open to cure the unfairness or prejudice said to arise from the delay in the commencement of proceedings.

70 The accused accepts that delay of itself will not generally be sufficient to warrant the court staying a prosecution even thought the length of delay is relevant to the issue of oppression. I have already noted that the accused does not assert impropriety on the part of the police or the Director. There is no suggestion that the initial investigation was incompetent, although the fresh evidence is criticised on the basis that it would have been available at the time of the initial investigation if the right questions had been asked of witnesses or had it been thought that further expert evidence was required. The submission was made that the Crown was little better off in terms of available evidence than it was at the time the decision was made to proceed only on the killing of Christopher.

The fresh evidence

71 The probative value of the fresh evidence relied upon by the Crown to justify the present proceeding is a relevant consideration in determining whether it would be so oppressive to the accused to put him to trial for the murder of his parents that the Court should not permit it to take place. So too is the fact, if it be the fact, that the evidence could reasonably have been available, when proceedings were originally commenced against the accused, had the matter been fully investigated. But in my opinion there is no basis for determining the issues raised by the application for a stay of the indictment simply on the basis that the evidence does not come up to the standard required under the provisions of the Crimes Appeal and Review Act.

72 In any event I am not persuaded that the fresh evidence is of little weight or importance so that it could not justify the decision of the Director now to commence proceedings against the accused. As I have made clear the Crown case is a circumstantial one, and, therefore, it is erroneous to consider each piece of fresh evidence alone and determine its probative value or significance without regard to the whole of the evidence now available to the prosecution. For example, the evidence as to the wetness of the accused’s hair may by itself seem trivial and of little evidentiary value. The accused submitted that it went only to a “subsidiary issue” and therefore was not substantial. I am not certain that in a circumstantial case any particular piece of evidence can be relegated to a “subsidiary issue” or be considered as being not substantial simply because it does not of itself prove the guilt of the accused.

73 The evidence as to the state of the accused’s hair is only one of a number of matters that the Crown relies upon to prove that the accused’s version in the recorded interview could not possibly be true. If used as one of a number of circumstances to prove the Crown’s case, it does not have to be proved beyond reasonable doubt, and, therefore, the reliability of the evidence is not as crucial as it might have been had the onus of proof been higher.

74 Similarly the evidence of the tape recording may not satisfy the criterion for fresh evidence under the Crimes Appeal and Review Act but I do not accept the submission that it has no probative value. On its face it goes generally to the relationship between the accused, his parents and his brother and is a piece of circumstantial evidence. Because it was made some years before the killings, it might not have high probative value but it does not mean that it should be discarded from consideration when determining whether the prosecutor was unjustified in commencing the present proceedings. I should make it clear that I am not deciding whether the evidence should be admitted at the trial, I am merely considering the fresh evidence as a whole in considering whether the commencement of the proceedings should be considered to be unjustified.

75 The fact that fresh evidence now relied upon by the Crown might have been obtained at the first investigation is relevant to the issue of oppression but again it is not, in my opinion, decisive, particularly in the absence of any suggestion that the original investigation was incompetent or that there is anything improper in the way that the police or the Director has proceeded to this point.

Lost evidence

76 The following is evidence that has been lost probably as a result of the Crown accepting the plea and the early determination of the first coronial inquest:

Primary

· The knife said to have been used in the killings.

· The bloodstained shave coat that the deceased, Christopher Gilham, was wearing at the time of his death.

· The clothing allegedly worn by Jeffrey Gilham at the time of the killings.

· The carpet samples from the living room of the house that were tested for accelerant.

· Swatches of textile removed from Christopher Gilham’s shave coat for forensic testing.

· Swabs that were forwarded to the Analytical Laboratories for analysis.

Secondary

· A washing basket (found in the room that Christopher Gilham was located in) which contained:

A knife;

· Panadol packet and Panadol tablets;

· Chemical residue found in the mug by police, which proved to be Panadol.

77 Further there was a lack of testing done on some items, mainly because at the time DNA testing was in its infancy. So the knife found near the body of the accused’s brother and said to be the murder weapon was never tested for DNA or blood. However, it appeared to be clean of blood and had no fingerprints. The shower cubicle and bathroom drains and basins were not tested for blood or DNA. No carpet samples were tested for blood.

78 Although some testing was carried out on Christopher Gilham’s shave coat, the blood group found was consistent with his and his mother’s blood but not with his father’s blood. The Crown would contend that the failure to further analyse the shave coat for DNA and the inability to do so now, is of little relevance. It is apparent from the photograph that the visible blood appears to be in the position proximate to the stab wounds to his body. It was submitted by the Crown that, if further testing located blood from the mother, this would not necessarily be inconsistent with a transfer of blood from the knife used to kill the mother. It was submitted that the jury could not speculate about the absence of the shave coat or the lack of further testing but that the absence of evidence could not advance the Crown case.

79 It is clear that a trial can be rendered unfair and hence the prosecution an abuse of process where evidence has been lost by reason of delay or otherwise. A number of cases were referred to on behalf of the accused in various jurisdictions where stays of proceedings have been granted on this basis. There was no case placed before me of a stay having been granted in this State on the basis of lost evidence. There are decisions that have held that the loss of a potential witness does not necessarily justify a stay: R v Adler (NSWCCA, unreported, 11 June 1992) the loss of defence witness corroborating the accused, R v Goldburg (NSWCCA, unreported, 23 February 1993) where an alibi witness was unavailable; R v VPH (NSWCCA, unreported, 4 March 1994) where the accused’s wife had died and thus could not give evidence of domestic arrangements at the relevant time; R v Tolmie (NSWCCA, unreported, 7 December 1994) where there was the loss of two prosecution witnesses.

80 A stay of an indictment is an extraordinary step that is to be exercised sparingly and with the utmost caution. It is the last resort to be taken by a court to protect an individual. This was made clear in Jago v District Court, see at 31 per Mason CJ and at 76 per Gaudron J. Whether a stay is the only available remedy depends upon a consideration of the significance of the lost evidence in the particular case and whether any direction can be given to a jury or any other power could be exercised by the trial judge to overcome such prejudice: R v RWO [2002] NSWCCA 133 at [68]. The accused has submitted that no direction could be given that would cure the unfairness derived from the loss of the evidence but I am not satisfied that this is so.

81 The courts in general are now familiar with lengthy delays and the resultant loss of evidence in child sexual assault cases. The loss of relevant evidence can in some cases be shown to be very significant. For example, the delay can mean that the accused is no longer able to ascertain whether he or she might have had available an alibi. Witnesses who might have been able to give relevant evidence might no longer have any or sufficient memory of events or might have died. Because of the delay there will have been no examination of the child and no opportunity to secure forensic evidence that might have been relevant to support or deny the child’s version of events. Prejudice has generally been presumed by delay even though the accused cannot show what the prejudice might have been.

82 But unfairness that might have been occasioned by delay including the loss of evidence has never to my knowledge resulted in a stay of proceedings of a child sexual case as an abuse of process. The courts have acted on the basis that a direction, known generally as a Longman direction, can sufficiently ensure a fair trial for the accused by informing the jury of the effects of delay and the consequence of it upon the accused’s ability to defend the charge. The court warns the jury of the need for caution to be applied when assessing the Crown case and before they convict the accused. In some cases it might be necessary to warn the jury that it may be dangerous to convict the accused by reason of the delay and its prejudicial effect.

83 I have some difficulty in appreciating why it would be that such a direction can be sufficient to address the loss of evidence in a sexual assault case but not in a case for some other offence and particularly where the accused is able with more certainty to indicate the exact evidence that has been lost and the specific unfairness that has been occasioned as a result. I can see nothing about the nature of a child sexual assault prosecution that intrinsically would suggest that the loss of evidence in such a case has less impact than in a prosecution of any other serious offence. Quite the contrary. In such a case it is almost inevitably the word of the complainant against that of the accused and evidence going to the credibility or reliability of the complainant would be crucial.

84 As I have already noted, the intended prosecution of the accused is a circumstantial case and the Crown is not relying upon the reliability of any particular witness to prove the charges against the accused beyond reasonable doubt. Rather the prosecution would be attempting to prove that the account of the accused given at the time of the killings, or very shortly thereafter, could not possibly be true. To this extent the loss of evidence seems to me to have less impact than it might have. True it is that the defence might have used an exhibit now missing or tests carried out on those exhibits to bolster an inference that the accused’s account is true. But the Crown could not rely upon the absence of those exhibits or the lack of testing to support an inference that the accused account was false. This is where I believe that directions or warnings to a jury might be more effective than would be the case where, for example, a complainant in a sexual assault prosecution is an apparently credible and compelling witness. In such a case the jury might more easily be able to dismiss the significance of the lack of evidence in the face of a witness that they feel should be believed.

85 The accused complains that the Crown will rely upon evidence of experts who might, because of their expertise, be considered favourably by the jury and yet the accused will not be able to cross-examine them effectively because the exhibits upon which they will express opinions have been lost. The accused is not now in a position to have the exhibits tested by his own experts. But I am not satisfied that this is a matter that cannot be addressed by suitable directions emphasising the lost opportunity of the accused to test the evidence. In any event it appears to me that what the accused has lost is a chance that he might have been able to present evidence that would weigh against the Crown case that his version of the events was false. He has lost an avenue of inquiry, or avenues of inquiry, that may have had a beneficial impact upon his defence: R v Helmling (NCWCCA, unreported, 11 November 1993). That is a matter that appears to me to be appropriately dealt with by directions from the trial judge.

86 In R v Slattery [2002] NSWCCA 367 the rifle used in the commission of a shooting offence had been destroyed before defence experts could examine it. The Court of Criminal Appeal set aside the verdict because of a failure of the trial judge to give an adequate warning to the jury, drawing their attention to the possible prejudice to the accused by the inability of the defence to examine the weapon. But there is nothing in the judgment to suggest that, had such a warning been given, the trial would necessarily have been unfair such that the verdict would have been quashed.

87 What this decision highlights is the benefit of being able to see with clarity the prejudice to the accused having regard to the evidence actually given at the trial and how, if possible, that might be addressed in light of submissions made to the jury. Otherwise the court in deciding whether there would be such unfairness as to render a trial an abuse of process is left to speculate about the evidence to be led at the trial and to make decisions based upon assertions that might not prove accurate when the issues in the trial are clearly established. This emphasises in my mind the exceptional step of granting a stay on the basis of lost evidence.

88 Crispin J in the Supreme Court of the ACT was somewhat dismissive of Slattery in R v Griffin [2006] ACTSC 77 and, with respect, was in my view too willing to assume that a direction or warning to a jury could not address the prejudice suffered by the accused from the loss of physical evidence before examination by a defence expert. But in any event that was a factual decision based upon facts different to those in the present case. Further it was a decision made by a single judge on an issue upon which minds might reasonably differ. In that case the police lost the evidence while the prosecution was on foot and while it was in their custody. That was a matter that was seen to be of relevance to the decision even though it was not asserted that it had been lost deliberately. In that case, unlike this, no expert had examined the missing object.

89 None of the individual cases relied upon by the applicant establish any principle that might guide me in determining the question whether the proposed trial of the accused would be so unfair by reason of the loss of the exhibits that a stay of the prosecution is warranted. They each depend to a very large extent upon their own facts. For example in Holmden v Bitar (1987) 47 SASR 509 the defendant had the onus of proof in a quarantine offence where the items imported had been destroyed. In Duncombe –Wall v Police [1998] SASC 6754 there was a major issue as to credibility of the prosecution witnesses and the missing evidence might have been crucial to resolve that issue. In R v Davis (1995) 57 FCR 512 the evidence lost was contemporaneous notes made by the accused of medical examinations of the complainants in a sexual assault case without which it was impossible for him to remember the particular consultation about which the complaint was made.

90 However, what the cases emphasise is that it is for the accused to prove that the trial would be so unfair as to require a stay and that such an onus is not easily satisfied given the exceptional nature of the remedy.

91 It has been made clear that a fair trial does not mean a trial that is as fair as it could possibly be. The question is whether the trial would be rendered unfair when judged by “acceptable standards of justice” Barton v The Queen (1980) 147 CLR 75 at 97. In Jago v The District Court (1989) 168 CLR 23 at 33 Mason CJ said:

92 It is not difficult to conjure up examples of trials where, even without delay, a witness or a particular piece of evidence is for some reason no longer available and yet the trial would not be relevantly unfair such that it should be stayed. Of course the situation might be different if the prosecution had recklessly destroyed evidence even though they were aware that there was to be a defended hearing, they were put on notice of the importance of the evidence and where that evidence might have assisted the accused: see Duncombe – Wall. But there is no such allegation here.

93 To some extent the accused is in a better position than many accused who face trial after long delay or where evidence has become unavailable. His version of events has been preserved and is accessible in a recorded interview. As I have indicated, the Crown will have to prove beyond reasonable doubt that the version he gave shortly after the incident is not true. To that extent the accused is less prejudiced by the passage of time even if he has tried to put the events of the night from his memory.

94 Further, it should be borne in mind that the result of a refusal to grant a stay does not mean that the accused is without a remedy, if the trial proves to be unfair notwithstanding steps taken by the trial judge to remove that unfairness. It is not unknown for a trial judge to make a decision based upon a forecast of what might occur during a trial or based upon facts and circumstances as they appear to be at the time the decision is made, and yet that forecast proves to have been based upon a false assumption or that the facts or circumstances change significantly during the course of the trial. The trial judge can revisit decisions, such as the refusal to order a separate trial, on the basis of what occurs through the trial. The Court of Criminal Appeal can review such a decision made at the start of the trial if it proves that a miscarriage of justice has ultimately eventuated. This is what occurred in one of the authorities relied upon by the accused, R v Garjee an unreported decision of the English Court of Appeal dated 20 September 1994.

95 In the present case I suggested that the prosecutor might indicate what submission the Crown might make to the jury at any trial in light of the missing exhibits so that a more realistic appraisal might be made of the claim of prejudice by the accused. Ultimately that did not transpire. But it seems to me at this stage that the trial judge can deal with the issue of lost evidence by warnings or directions depending upon how the case develops before the jury and what submissions the Crown ultimately makes. Certainly I am not presently persuaded that the trial judge, by appropriate warnings or directions, rulings on admissibility or other orders, cannot cure any prejudice suffered by the accused, particularly having regard to the fact that it is a circumstantial case and that the Crown must prove that the accused’s version cannot reasonably be true.

96 A significant issue that arose on the hearing of this application is the question of double jeopardy arising from the fact that the accused was indicted for the murder of his brother but convicted, after a plea of guilty, of the offence of manslaughter. There are a number of aspects in which double jeopardy can impact upon the decision whether to stay the present indictment. As was pointed out in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [9] the term “double jeopardy” has shades of meaning and impacts in various ways upon the prosecution of accused persons. In the joint judgment of McHugh, Hayne and Callinan JJ it was stated (footnotes omitted):

97 In Island Maritime Ltd v Filipowski [2006] HCA 30;(2006) 80 ALJR 1168 Gummow and Hayne JJ stated at [41] (footnotes not reproduced):

98 It has been held that the principle of double jeopardy has four major rationales: the imbalance of power between the prosecution and the accused; the seriousness of conviction; the avoidance of oppression of the individual by the power of the executive; and to ensure finality of proceedings. And yet those considerations must be balanced against the recognition that those who are guilty of criminal behaviour should be prosecuted for it: Carroll per Gleeson CJ and Hayne J at [23]. It was acknowledged by their Honours that there may be cases where the competing interests pull in different directions and a balance needs to be struck between them.

99 Some of the aspects of double jeopardy will be considered on the issue of whether the proceedings would be oppressive by reason of multiple prosecutions. But before considering the issue of double jeopardy as a legal impediment to the further prosecution of the accused, it is necessary firstly to consider the legal consequence of what occurred before Mr Justice Abadee when the plea to manslaughter was accepted in full discharge of the indictment and the accused was sentenced for that offence.

The legal consequence of accepting the plea

100 At the time of the plea, the relevant provision concerned with the acceptance of a plea to an alternative count not charged in the indictment was s 394A of the Crimes Act. The section has been repealed and replaced by s 153 of the Criminal Procedure Act. At the relevant time s 394A was in the following terms:

101 The consequence of the procedure adopted under s 394A was considered in R v Maxwell (1994) 34 NSWLR 606. That was a case concerned with the power of a judge to reject a plea of manslaughter accepted by the Crown on an indictment for murder. There a judge had rejected a plea of guilty to manslaughter, by what was then known as diminished responsibility, accepted by the Crown in discharge of an indictment for murder on the basis that the evidence tendered did not support the defence of diminished responsibility. The accused appealed to the Court of Criminal Appeal against the rejection of the plea, arguing that the trial judge had no power to take that course. In dismissing the appeal Gleason CJ, with whom Hunt CJ at CL and Badgery-Parker J agreed, stated (at 614) (my underlining):

What is involved is not only a conviction of the lesser charge but also an acquittal of the more serious charge

102 The reference to R v Naraindeen is a reference to a decision of the Court of Appeal for Ontario at (1990) 75 OR (2d) 120. That case was concerned with s 606(4) of the Canadian Criminal Code, a section similar to s 394A but in these terms:

103 Notwithstanding the fact that this provision expressly required the court, on accepting the plea, to both convict of the lesser offence and acquit of the more serious charge, Gleeson CJ interpreted s 394A to the same effect, that is that the acceptance of the plea to the less serious charge carried with it both a conviction on that charge and an acquittal on the more serious charge. It was the resultant acquittal that, in the Chief Justice’s opinion, supported the existence of a discretion in the trial judge to reject the plea of guilty if the evidence proffered in support of the less serious charge was inconsistent with an acquittal of the more serious charge.

104 Counsel for the accused before me relied heavily upon the sentence underlined in the first passage that I have quoted in support of the application for a stay on the basis that the accused was, by reason of the acceptance of the plea of guilty to manslaughter, taken to have been acquitted of the murder of his brother. It was argued, relying upon a line of authority commencing with Mraz v The Queen (No 2) (1956) 96 CLR 62, that the Crown could not conduct a prosecution of any charge that called into question this acquittal. It was submitted that on a trial for the murder of the accused’s parents the jury would have to be directed that they were to give full effect to the acquittal of the charge of murdering his brother but, on the facts in this case, that could only mean that they must acquit the accused of the murder of his parents.

105 Further, it was argued that any verdict of guilty of murder of the parents must be factually inconsistent with a verdict of acquittal of the murder of his brother, because as a matter of logic it must follow from a finding that the accused murdered his parents that he also murdered his brother. It was submitted that such inconsistent verdicts would bring the system of justice into disrepute and give rise to an abuse of the Court’s process.

106 At the hearing of the application and without having been taken to the actual decision of the Court of Criminal Appeal, I expressed some surprise at the notion that the accused had been acquitted of the charge of murder in respect of his brother. I pointed out to counsel that there was no formal entry of an acquittal on the Court record, that is on the indictment presented before Mr Justice Abadee, and I thought that the decision of the Crown was akin to a nolle prosequi on the charge of murder. However, in response it was submitted that I was bound by the view of the Court of Criminal Appeal as it was part of the ratio of that decision and, further, that certain judges in the High Court had adopted a similar view in determining an appeal from the decision in R v Maxwell.

107 In Maxwell v The Queen [1995] HCA 62; (1996) 184 CLR 501 the accused appealed against the Court of Criminal Appeal’s determination that the trial judge had power to reject the plea of guilty against the wishes of the parties. The Court, by majority, allowed the appeal and held that the trial judge did not have that power. The four majority judges had cause to consider the effect of s 394A.

108 Justices McHugh and Dawson wrote (at 511-512) (my underlining):

The practical effect of the prosecutor's acceptance of the plea of guilty to manslaughter was that he led no evidence upon the charge of murder in the indictment

109 Justices Gaudron and Gummow also considered the operation of the provision. At p 529 under the heading “Was the appellant convicted of manslaughter?” they stated (my underlining):

A conviction for a lesser offence than that contained in an indictment, as permitted by s394A of the Act, necessarily involves an acquittal on the offence charged in that indictment

110 They later wrote (at 534) (my underlining):

A decision by a prosecutor to accept a plea to a lesser charge, as permitted by s394A of the Act, is a decision not to proceed, or, more precisely, not to present evidence on the more serious charge in the indictment and, at the same time, a decision as to the charge which is to proceed

111 It seems to me, and contrary to the submission made on behalf of the accused, that a majority of the High Court did not hold that the acceptance of the plea of guilty resulted in an acquittal of the accused of the more serious offence. However, in light of the views expressed in the Court of Criminal Appeal and by Justices Gaudron and Gummow, I should find that the acceptance of the plea to manslaughter resulted in a decision by the Crown not to lead evidence on the charge of murder and, as a consequence, there was in effect an acquittal of the charge of murder.

112 It will be noted from the facts as tendered that the basis of the plea of guilty was not that the Crown was asserting that the accused was provoked into killing his brother, but rather that the Crown was unable to prove that he was not provoked. It is trite that, where there is evidence of provocation fit to go to a jury, the Crown must prove to the jury beyond reasonable doubt that the accused person was not provoked into killing the deceased before the jury can convict of murder. In the present case the statement of facts placed before the Judge displayed a clear acknowledgment of the onus and standard of proof. It contained an opinion of the police officer that the accused’s version, that he was provoked by the killing of his parents by his brother, was feasible and that there was no evidence available to refute it. The statement of the prosecutor, which I set out earlier in this judgment, was not an assertion of the facts accepted by the Crown but rather an answer to the Judge’s enquiry as to the basis upon which the plea to manslaughter was being accepted. In my opinion the acceptance of the plea was merely an acknowledgment by the Crown that it could not prove that the accused did not kill his brother under provocation.

113 Of course the Judge sentenced the accused on the basis that he was provoked according to his version of events. But that does not mean that the Judge found that version to be the true facts. A sentencing judge is obliged to sentence in accordance with material placed before the court, and, if there had been a jury verdict, in accordance with that verdict notwithstanding that the judge may not agree with it. In Maxwell v The Queen (at 514) McHugh and Dawson JJ said this about sentencing after the acceptance of a plea to manslaughter on an indictment for murder (footnotes not included):

‘This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict. However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.’

114 Where there has been a trial by jury, the trial judge is required to find facts in accordance with the jury verdict and consistent with the offence of which the accused has been convicted. But apart from these limitations, the trial judge is completely at liberty to find all facts in accordance with the evidence and to the relevant standard of proof: facts adverse to the accused must be found beyond reasonable doubt: Chow v DPP (1992) 28 NSWLR 593. But the finding of facts after a plea of guilty will usually be restricted by the material placed before the court, often being merely an agreed statement of facts: see R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174.

135 These decisions have in common the fact that there is a verdict or ruling made on the merits. They apply, or are consistent with, the classical statement of the incontrovertibility of an acquittal by Lord MacDermott in Sambasivan v Public Prosecutor, Federation of Malaya [1950] AC 458. His Lordship stated at 479 (my underlining):

pronounced by a competent court on a lawful charge and after a lawful trial

136 The effect of this statement and its applicability to a situation where the verdict of acquittal was not entered after a trial has been considered in two decisions in Victoria. In R v Calcedo [1986] VR 499 the accused was arraigned on a charge of malicious wounding and armed robbery arising from the one incident. He pleaded guilty to the robbery and the Crown led no evidence on the wounding charge. In accordance with s 391 of the Crimes Act (Vic) the judge directed a verdict of not guilty be entered on that charge. Later the accused was permitted to change his plea on the robbery charge. At the trial evidence was given of the wounding to the victim in reply to questions in cross-examination as to the complainant’s physical state. It was held that the evidence was not rendered inadmissible by the acquittal and nor was the trial judge required to bring the acquittal to the attention of the jury. It was noted that there was no trial and held that the earlier decisions to which I have referred were predicated on acquittal or conviction after trial by jury; see at 504.

137 Calcedo was considered in R v Young [1998] 1 VR 402. In that case there was a trial of the accused for indecent acts with young boys. The prosecution chose not to lead evidence on three counts and the accused was acquitted under s 391. However evidence of those incidents was led on the basis that such assaults had in fact occurred and upon which the jury could conclude that the accused had a “guilty passion” for the boy. On appeal the accused argued that the evidence on those counts should not have been admitted and the jury should have been directed as to the significance of the fact that the accused had been acquitted of charges relating to those incidents.

138 The Court held that the only purpose of leading the evidence was to challenge the acquittal in order to show that the accused had been indecently assaulting the child otherwise the evidence was irrelevant. In respect of the decision in Calcedo the Court stated (at 418):

Calcedo

139 It should be noted that there is no section such as s 391 in the Criminal Procedure Act of this State. Nor is there any procedure followed in our courts, such as that section lays down, of the Crown indicating before the jury panel that it does not intend to lead evidence on a particular charge on the indictment. It can be seen that the purposes of the legislation was to accord the accused the full benefit of an acquittal before the trial took place and, therefore, the decision in Young is understandable having regard to the terms of the section. The decision in Young held that the principle that full effect must be given to an acquittal is not limited only to a trial at which evidence was in fact adduced but extended to the situation covered by s 391.

140 In my opinion the incontrovertibility that has been accorded a verdict of acquittal after trial by jury, or a determination of fact made after a hearing on the merits, or by the terms of a particular statutory provision should not be applied to a situation where the acquittal arose incidentally by the Crown accepting a plea of guilty to a lesser offence. I do not see that any of the policy considerations, even giving the double jeopardy principle its widest scope, require that a verdict of acquittal to murder, arising from the acceptance of a plea to manslaughter, be given the status of incontrovertibility so that it is immune from further consideration by a jury at other proceedings. The real verdict recorded by the Court was a conviction of manslaughter. That was the only finding that the Judge was required to make. If the verdict of acquittal of murder is recorded at all, it can only be in the recording of the acceptance of the plea of guilty to the manslaughter charge.

141 But more significantly there was no positive finding by a tribunal of fact, whether it be by judge or jury, that the accused was not guilty of the charge of murder. Nor was there any statutory provision to give it that effect. To the extent that the issue arising from the charge of murder was joined between the parties on the accused pleading not guilty on arraignment, the issue was concluded when the Crown accepted the plea of guilty in discharge of the indictment. On the authorities the acceptance of the plea resulted in a decision not to lead evidence on the murder charge so that an acquittal resulted. But that was an automatic result following upon the acceptance of the plea and there was no decision on the merits of the allegation of murder. There was no finding made by the Court other than that the accused was guilty of manslaughter. There was nothing that gave the verdict of acquittal the status of a verdict delivered after a trial by jury in accordance with the principle in Sambasivan.

142 It was in my view at most a technical acquittal that gave rise to a plea of autrefois acquit on the charge of murdering his brother. There can be no question that such a result should follow the acceptance by the Crown of the plea of guilty to manslaughter. But I do not understand why the acquittal of murder should be accorded more substance than that. I doubt that the accused, the Crown or the Judge understood that the accused had been acquitted of the charge of murder by the adoption of that procedure. In those circumstances I do not see why fairness to the accused or the preservation of the Court’s determination should require that the Crown now be precluded from prosecuting the accused with murdering his parents on the basis that the acquittal of murdering his brother prevents a jury from considering the circumstances in which that killing arose. The acceptance of the plea of guilty was on the basis that the Crown could not at that time negative that the accused acted in provocation. The acquittal means no more than that. In my opinion there would be no manifest inconsistency between a conviction of manslaughter of his brother and convictions of murder of his parents that would bring the courts into disrepute or undermine the principle of incontrovertibility of verdicts after trial.

143 The plea of guilty to manslaughter accepted that all the elements of murder had been made out. The accused, however, relied upon the reduction of murder to manslaughter by the operation of s 23 of the Crimes Act on the basis that the act causing death was committed under a loss of self-control induced by the conduct of his brother. The Crown accepted that it could not on the evidence then in its possession prove the absence of provocation beyond reasonable doubt. Yet as I have indicated above, there was no finding by the Court that the accused had acted under provocation or that his brother had killed his parents. What then was the effect of the acquittal of murder other than to ensure that the accused could not be prosecuted again for murdering his brother? What facts had the acquittal determined against the Crown? How would a jury give full effect to it on the trial of the murder of the parents if there is no clear understanding of what it meant factually?

144 If the accused’s submission be correct and the prosecution cannot proceed because to do so must inevitably challenge the acquittal, the accused could not be prosecuted even in the face of the most damning evidence of his guilt of murdering his parents that came to light since the sentencing proceedings for the manslaughter of his brother. And this only because at the time of taking the plea the Crown could not negative that the accused was acting under provocation. I do not believe that the principle of double jeopardy goes so far as to protect the accused from prosecution for the crime of murdering his parents simply because he pleaded guilty to the manslaughter of his brother and, as an incident of the acceptance of the plea, was acquitted of the murder of his brother.

145 In the passage quoted above from Carroll Gleeson CJ and Hayne J left open the limits of the principle of incontrovertibility. I would limit it, at least in the absence of any statutory provision to the contrary, to a decision following a hearing on the merits by the tribunal of fact. That would include a case where there was a jury verdict for whatever reason, including where the Crown offered no evidence on, or there was no evidence of, a particular count in the indictment. This seems to me to be consistent with the authorities that have examined and applied the principle.

146 In Storey at 387 Gibbs J stated that, where evidence is admitted that may tend to show that an accused was guilty of an offence for which he had been acquitted, it would sometimes be necessary to give the jury a direction to accord the acquittal full weight. But his Honour seems to have left open the possibility that there would be occasions where no such direction was necessary. Calcedo was a case where no direction was required. So in my opinion would be the trial of the accused for the murder of his parents. I do not believe that the acquittal on the charge of murder should be accorded such significance in this particular prosecution. There were no facts determined by the acquittal that should legally disentitle the Crown from asking the jury to find that the accused murdered his parents.

147 In my opinion there is nothing in Carroll that suggests that the proposed prosecution is in breach of the formal aspects of double jeopardy that I am here considering: that is there is nothing that legally prevents the Crown from seeking to have the accused convicted of murdering his parents. It may be that the evidence led by the prosecution would give rise to an inference that the accused was wrongly convicted of manslaughter and should have been convicted of murder, but the further prosecution does not seek to negative, substitute, or relitigate that verdict: cf Carroll at [103]. I know of no decision that has held that a later prosecution cannot call into question, at least incidentally, a previous conviction. There are cases that have held in effect that a later prosecution might incidentally call into question an earlier acquittal provided it does not seek to controvert it: see R v Z [2000] 2 AC 483; R v Degnan [2001] 1 NZLR 280; Carroll at [50] and [94]; and R v VN [2006] VSCA 111.

148 The conviction of manslaughter proves that the accused unlawfully killed his brother. That is not an issue that is in dispute at the proposed trial. The proposed prosecution does not put that verdict in jeopardy in any sense. A verdict that the accused murdered his parents is not necessarily inconsistent with an allegation that he unlawfully killed his brother, even if the jury might think that the conviction should have been for murder rather than manslaughter. The Crown is not bound by its acceptance of the plea to manslaughter on the basis of provocation and there is no fact decided by the sentence imposed upon the accused by Abadee J. There is in my opinion no breach of the principle against double jeopardy by the further prosecution of the accused.

Oppression by multiple proceedings

149 A prosecution can be stayed as an abuse of process where it is oppressive or vexatious because it seeks to relitigate issues that have already been decided. In Walton v Gardner (1993) 177 CLR 378 at 393 it was stated:

150 A determination whether to stay proceedings on this basis involves an exercise of balancing various factors including:

Walton v Gardner

151 When considering whether to grant a stay by reason of oppression for whatever reason, it is not necessary for the court to be satisfied that the trial would necessarily be unfair but it is necessary for the court to be satisfied that the interests of justice demand that a party be refused the jurisdiction of the court that it has otherwise properly invoked: Williams v Spautz (1992) 174 CLR 509 at 519.

152 The power of a court to stay an indictment on the basis of oppression arising from the repeated prosecution of charges arising from the one incident is a reflection of the principle of double jeopardy. The circumstances where the court might exercise the power usually arise because there is none of the more formal remedies against double jeopardy, such as a plea of autrefois or a plea in bar, available. But unlike the situation where there is a likelihood of inconsistent verdicts arising or where there is a complaint that a verdict of acquittal will be undermined by the proposed prosecution, the concern is not so much with the possibility that the system of justice will be brought into disrepute by the outcome of the proceedings. Rather the concern is with the apparent abuse of power of the state, exercised through the prosecutor, against an individual. The tension is between the right of the prosecutor to bring multiple prosecutions in order to comprehend the total criminality arising from a particular event or transaction as against the vexation and harassment that arises from repeated prosecutions based upon the same conduct of the accused person.

153 There is little doubt that the accused had a reasonable expectation that the investigation and further prosecution arising from the incidents that occurred on 28 August 1993 were concluded by the acceptance of his plea of guilty to manslaughter. That expectation would have been confirmed by the result of the first coronial inquiry. Thereafter there were occasions when he was in danger of having that expectation frustrated by the findings of the second coronial inquiry or the proceedings commenced by his uncle. However, on each occasion the Director or the Attorney General indicated that a prosecution would not be commenced at that time.

154 True it is that the Director has not indicated that a prosecution would never be commenced, but it can be accepted that with the passage of time the accused would have become more confident that no further prosecution was going to occur and gone on with his life in the belief that this part of his past was for all practical purposes over. Of course it is easy to assume his guilt and picture the accused believing that he had escaped punishment for the murder of his parents. But this is where it is important to keep in mind that the court acts upon the presumption of innocence, however strong a prosecution case might appear against an accused person.

155 The simple fact that the Director decides to proceed with a prosecution even after he has made a determination at an earlier stage not to proceed does not itself give rise to an abuse of process notwithstanding that the expectations of the accused may have been frustrated by the later decision: R v Swingler (1995) 80 A Crim R 471. This is because the decision not to prosecute taken at any particular occasion does not promise or represent that there will be no prosecution in the future: Swingler at 479. The prosecution discretion cannot be fettered by a general rule that the Director cannot revisit an earlier decision and pursue a different course. The court will only intervene in the rare case where it can be shown that the further proceeding “would be unacceptably oppressive, or unfair to an accused or an affront to the public conscious to permit the prosecution to proceed”: R v Gagliardi and Fillipidis (1987) 45 SASR 418 at 433.

156 However, what is involved is again a balancing exercise considering various public interests not the least being the public interest in the prosecution of persons alleged to have committed serious criminal activity. It is trite to observe that the more serious the offence charged the more heavily will the oppression weigh upon the accused to be further prosecuted but, on the other hand, the more significant will be the public interest in the prosecution continuing. It must be obvious that there is a considerable public interest in the prosecution of an accused person for the murder of two persons, regardless of the relationship of the deceased persons to the accused.

157 It is not unreasonable to conclude that the Crown could have prosecuted the accused with all three killings in 1995 on the basis of the supposed similarities in the killings and what other evidence was available to indicate that the accused might have been responsible for all three. At least it could have asked the jury whether there was any reasonable possibility, given the three killings and that the accused admitted to one of them, that he was not responsible for all three. But this is to second-guess the Director. He was entitled to form the view that, even if the case was put on that basis, there was no reasonable prospect of a conviction of the accused for the murder of the parents. If that were the case, then it would arguably have been an abuse of process to put him on trial for the death of his parents.

158 It cannot be an abuse of process for the Director to dutifully exercise his functions according to his assessment of the evidence at particular points of time, but ultimately form a different view because he believes that further evidence now makes a prosecution appropriate. I am unable to conclude that it is unreasonable for the Director now to have made the decision to prosecute the accused as the evidence now stands. Although the accused relies upon decisions where a change of the prosecution’s intention has resulted in an abuse of process, those are decisions on their own facts. There is no sense in this case of the prosecution treating the courts “as if they were at its beck and call”; see R v Bloomfield [1997] 1 Cr App R 135. It is not a case of the prosecution abusing its power by making repeated attempts to convict the accused of a particular offence such as was the situation in Carroll. It seems to me to be rather a case of the prosecution determining to resist any attempt by any person to prosecute the accused for murdering his parents while the Director was of the view that there was no reasonable prospect of a conviction.

159 I am not persuaded that the further prosecution of the accused is detrimental to the public interest notwithstanding the delay and the fact that the accused’s reasonable expectations will be disappointed. It must be said that this is principally because of the seriousness of the allegations and the public interest in them being resolved by a jury in the exercise of the jurisdiction of this Court rather than in its jurisdiction being denied to the Crown. But I also take into account the lack of any suggestion of improper behaviour by the Director or investigating police. While minds might differ as to the quality of the fresh evidence, I am not prepared to hold that it was insufficient to justify the Director’s change of opinion as to the appropriateness of a prosecution of the accused. I am not persuaded to the necessary degree that the exceptional course of staying the proceedings is warranted.

160 The application for a stay of the indictment is refused.

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Citations

R v Gilham [2007] NSWSC 231

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9

Stephens v The Queen [2022] HCA 31

R v Pacitti [2022] SASCA 108

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30

Statutory Material Cited

6

R v Carroll [2002] HCA 55

R v RWO [2002] NSWCCA 133

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CITATION:	R v Gilham [2007] NSWSC 231
HEARING DATE(S):	09/10/2006, 10/10/2006,11/10/2006
JUDGMENT DATE :	21 March 2007
JUDGMENT OF:	Howie J at 1
DECISION:	The application for a stay of the indictment is refused.
CATCHWORDS:	Criminal Law - Practice and Procedure - Ex officio indictment for two counts of murder - stay of proceedings as abuse of process - delay and loss of evidence - oppression from multiple proceedings - double jeopardy following plea of guilty to manslaughter - Sentencing - effect of sentencing remarks on agreed facts - inconsistent conduct by Crown - Double jeopardy - effect of plea of guilty to manslaughter on indictment for murder - subsequent proceedings for murder of different victims.
LEGISLATION CITED:	Coroner's Act 1980 - s 19 Crimes Appeal and Review Act 2001 - s 102 Crimes Act 1900 - s 394A Criminal Procedure Act 1986 - ss 153, 391 Evidence Act 1977 (Qld) - s 132C Crimes Act (Vic) - s 391
CASES CITED:	The Queen v Carroll (2002) 213 CLR 653 R v Adler (NSWCCA, unreported, 11 June 1992) R v Goldburg (NSWCCA, unreported, 23 February 1993) R v VPH (NSWCCA, unreported, 4 March 1994) R v Tolmie (NSWCCA, unreported, 7 December 1994) Jago v District Court (1989) 168 CLR 23 R v RWO [2002] NSWCCA 133 R v Helmling (NSWCCA, unreported, 11 November 1993) R v Slattery [2002] NSWCCA 367 R v Griffin [2006] ACTSC 77 Holmden v Bitar (1987) 47 SASR 509 Duncombe-Wall v Police [1998] SASC 6754 R v Davis (1995) 57 FCR 512 Barton v The Queen (1980) 147 CLR 75 R v Garjee (English Court of Appeal, unreported, 20 September 1994) Pearce v The Queen (1998) 194 CLR 610 Island Maritime Ltd v Filipowski (2006) 80 ALJR 1168 R v Maxwell (1994) 34 NSWLR 606 R v Naraindeen (1990) 75 OR (2d) 120 Mraz v The Queen (No. 2) (1956) 96 CLR 62 Maxwell v The Queen (1996) 184 CLR 501 Chow v DPP (1992) 28 NSWLR 593 R v Palu (2002) 134 A Crim R 174 Walton v Butler [2004] QCA 465, (2004) 150 A Crim R 341 R v K; Ex parte Attorney General (Qld) [2002] QCA 260; (2002) 132 A Crim R 108 Rogers v The Queen (1994) 181 CLR 251 Garrett v The Queen (1977) 139 CLR 437 R v Storey (1978) 140 CLR 364 R v Calcedo [1986] VR 499 R v Young [1998] 1 VR 402 R v Z [2000] 2 AC 483 R v Degnan [2001] 1 NZLR 280 R v VN [2006] VSCA 111 Walton v Gardner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 R v Swingler (1995) 80 A Crim R 471 R v Gagliardi and Filipidis (1987) 45 SASR 418 R v Bloomfield [1997] 1 Cr App R 135
PARTIES:	Regina v Jeffrey Gilham
FILE NUMBER(S):	SC 2006/468
COUNSEL:	M. Tedeschi QC with K. Shead - Crown P. Boulten SC with P. Lang - Accused
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Accused