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R v Gilham

R v Gilham

Case [2007] NSWSC 231 21 March 2007

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gilham

Details

AGLC: R v Gilham [2007] NSWSC 231
Case: [2007] NSWSC 231
Decision Date: 21 March 2007

CaseChat Overview and Summary

In the matter of R v Gilham, the respondent faced trial for two counts of murder in the Supreme Court of Victoria. The case revolved around the death of two individuals, and Gilham had already pleaded guilty to manslaughter in relation to one of the victims. The legal issues before the court included whether the proceedings should be stayed due to an abuse of process, the effect of the delay and loss of evidence on the trial, and whether the multiple proceedings amounted to oppression. Additionally, the court had to consider the principle of double jeopardy in light of the guilty plea to manslaughter and the subsequent indictment for murder.

The court examined the principles of double jeopardy and the concept of abuse of process, determining that the plea of guilty to manslaughter did not bar the subsequent prosecution for murder of a different victim. The court recognised the importance of ensuring that justice is not thwarted by procedural irregularities. In relation to the delay and loss of evidence, the court found that while there had been some delays and evidence loss, these did not reach the threshold of oppression that would warrant a stay of proceedings. The court also considered the impact of the inconsistent conduct by the Crown and the effect of sentencing remarks on the agreed facts.

Ultimately, the court ruled that the proceedings should not be stayed as an abuse of process. The court held that the plea of guilty to manslaughter did not preclude a subsequent prosecution for the murder of a different victim. The court emphasised the need to balance the rights of the accused with the pursuit of justice for the victims and their families. The court did not find the delay and loss of evidence to be oppressive and dismissed the claim of double jeopardy. The case concluded with the court confirming the legal principles regarding abuse of process, double jeopardy, and the impact of prior pleas on subsequent charges.

Orders