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R v Gilham

R v Gilham

Case [2007] NSWCCA 323 26 November 2007

Double Jeopardy

Abuse of Process

Criminal Law

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Reported Decision: 178 A Crim R 72

New South Wales

Court of Criminal Appeal

CITATION: GILHAM v REGINA [2007] NSWCCA 323
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 August 2007

JUDGMENT DATE:
26 November 2007

JUDGMENT OF: Spigelman CJ at 1; McClellan CJ at CL at 135; Hulme J at 224; Hidden J at 274; Latham J at 275

DECISION: 1. Leave to appeal on Grounds 1 and 2 granted ; 2. Leave to appeal otherwise refused ; 3. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Pleas at bar not available – Principle of Incontrovertibility – “manifestly inconsistent” test – Extension of principle of incontrovertibility to convictions – Whether prosecution inconsistent with previous acquittal and conviction - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – s 394A of the Crimes Act 1900 – Guilty plea to manslaughter results in acquittal for murder – Whether an acquittal also indicates the accused was in jeopardy - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Point of commencement of trial – Whether arraignment or empanelment of jury point of commencement of trial - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Absence of acquittal on the merits – Whether evidence was capable of supporting conviction or disproving provocation case - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Whether findings by sentencing judge subject to incontrovertibility principle - CRIMINAL LAW – Jurisdiction, Practice and Procedure – Stay of Proceedings – Abuse of Process – Whether subsequent prosecution was an abuse of process given prior acquittal and conviction – Where the accused found to be in jeopardy but no abuse of process found

LEGISLATION CITED: Crimes Act 1900, s23, 394A, 395
Criminal Appeal Act 1912, s5F
Criminal Procedure Act, s 153, 154, 157
Criminal Code (Canada), s606(4)
Evidence Act 1995, s4(2)
Marine Pollution Act 1987
Road Traffic Act 1972 (UK), s 5

CASES CITED: AJS v The Queen (2007) 81 ALJR 1208
Barnes v Gougousis [1969] VR 1019
Broome v Chenoweth (1946) 73 CLR 583
Connelly v Director of Public Prosecutions [1964] AC 1254
Director of Public Prosecutions (SA) v B (1998) 194 CLR 566
Director of Public Prosecutions v Porthouse [1989] RTR 177
Donaldson v Western Australia (2005) 31 WAR 122
Garrett v The Queen (1977) 139 CLR 437
Hackwill v Kay [1960] VR 632
Haynes v Davis [1915] KB 332
Island Maritime Limited v Filipowski (2006) 226 CLR 328
Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401
Korczynski v Quik Foods Pty Ltd (1985) 7 FCR 201
Maxwell v The Queen (1996) 184 CLR 501
Mraz v The Queen [No 2] (1956) 96 CLR 62
Norbis v Norbis (1986) 161 CLR 513
Pearce v The Queen (1998) 194 CLR 610
Perpetual Trustee Company…

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: Gilham v the Queen [2007] NSWCCA 323
Case: [2007] NSWCCA 323
Decision Date: 26 November 2007

CaseChat Overview and Summary

The case of R v Gilham involved the accused, Gilham, who had previously been acquitted of murder and convicted of manslaughter in relation to a single incident. Gilham was subsequently prosecuted again for murder in relation to the same incident. The High Court of Australia was tasked with determining whether the principle of double jeopardy applied in this instance, and if the subsequent prosecution constituted an abuse of process. The central legal issue was whether Gilham had been in jeopardy for the murder charge in the initial trial, given his acquittal and manslaughter conviction.

The High Court examined the principle of double jeopardy, considering whether Gilham had been in jeopardy for the murder charge during the initial trial. The court found that despite the acquittal and conviction, Gilham had indeed been in jeopardy for murder. The court applied the "manifestly inconsistent" test, assessing whether the acquittal and conviction were so inconsistent as to preclude the possibility that Gilham could have been acquitted of murder. The court held that the manslaughter conviction did not indicate that Gilham had been acquitted of murder on the merits, as the evidence could still support a murder conviction.

The court also considered whether the subsequent prosecution for murder was an abuse of process. The court determined that the prosecution did not constitute an abuse of process, as the principle of double jeopardy was not absolute and could be overridden by public interest considerations. The court found that the initial acquittal and conviction did not bar the subsequent prosecution for murder, as the principle of incontrovertibility did not apply in this case.

The court concluded that the principle of double jeopardy did not apply, and the subsequent prosecution for murder was not an abuse of process. The decision underscored the importance of the "manifestly inconsistent" test in determining whether a previous acquittal or conviction precludes a subsequent prosecution, and the limited circumstances under which the principle of double jeopardy applies.

Orders