R v Gill - [2005] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 305 of 2003

THE QUEEN
	v.
HAEMON GILL

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	GEELONG
DATE OF HEARING:	8 March 2005
DATE OF JUDGMENT:	6 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 70

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CRIMINAL LAW – Murder – Child killed by head injuries caused by blows of severe force – Possibility of lucid interval after head injury – Adjournment of trial for seven days – Whether discharge of jury necessary – Causation – Direction as to reliability of witness – Propensity – Whether guilty verdict unreasonable – Sentence of 19 years and non-parole period of 14 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms R. Orr	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C.	Browne & Co.

WINNEKE, P.:

For the reasons given by Charles, J.A., which I have read in draft form, I agree that the applications for leave to appeal against conviction and sentence should be dismissed.

CHARLES, J.A.:

On 25 February 2003, the applicant, who was born on 9 September 1973, pleaded not guilty in the Supreme Court at Melbourne to the charge that he murdered Lewis Blackley. The trial was interrupted, in circumstances to which I shall turn shortly, by an adjournment effectively from Tuesday 4 March to Tuesday 11 March. On 14 March the jury returned a verdict of guilty on the charge of murder. After a plea, on 15 October 2003 the judge sentenced the applicant to imprisonment for 19 years and fixed a non-parole period of 14 years.

The applicant now seeks leave to appeal against both conviction and sentence.

The Crown case

Lewis Blackley (“Lewis”), the victim, was two years old at the time of his death on 11 November 2001. He was the son of Daisy de Los Reyes (“Daisy”), with whom the applicant had established a relationship some three months earlier. The applicant was not living with Daisy at her house at 22 Robin Avenue, Norlane, but would stay there two or three days a week. Lewis usually slept on a lounge room couch, where it seems he slept better than in his own bedroom. The evidence suggested that Lewis was generally a happy, healthy child, and his mother, despite suffering from schizophrenia, was a good caring parent.

Lewis, however, was easily frustrated, was prone to cry and would from time to time throw tantrums which could include banging his head against walls or the ground. His mother coped with this by putting him in the lounge or into his cot, telling him to calm down, and leaving him for a while, a strategy which had been suggested by a child care nurse. There was evidence that the applicant and Lewis played together and got on well. But the environment at Robin Avenue had the capacity to irritate the applicant who, according to one witness, said, a week before Lewis’s death…

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 Gill

Details

AGLC: R v Gill [2005] VSCA 70
Case: [2005] VSCA 70
Decision Date: 6 April 2005

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Gill involved a trial concerning the death of a young child. The defendant was charged with murder, arising from the severe head injuries that ultimately led to the child's death. The prosecution argued that the defendant had inflicted the fatal blows, while the defence contended that the injuries could have been caused by an accidental fall. The court was tasked with determining whether the defendant was guilty of murder and, if so, what the appropriate sentence would be.

The primary legal issues in this case revolved around the causation of the child's death, the reliability of the witnesses, and the appropriate sentence in the event of a guilty verdict. The court had to consider whether the injuries were inflicted by the defendant, and if so, whether the injuries were inflicted with the requisite intent for murder. Additionally, the court had to assess the reliability of the witnesses' testimonies, particularly in light of the possibility of a lucid interval following the head injury, which could have affected the child's ability to recall the events leading up to the incident.

The court found that the evidence was sufficient to establish that the defendant had caused the child's death, and that the injuries were inflicted with the requisite intent for murder. The court also determined that the witnesses' testimonies were reliable and that there was no necessity to discharge the jury following the seven-day adjournment of the trial. The court further concluded that the sentence of 19 years with a non-parole period of 14 years was not manifestly excessive, taking into account the gravity of the offence and the defendant's background.

The final orders of the court were that the defendant was found guilty of murder and was sentenced to 19 years imprisonment, with a non-parole period of 14 years. The court's decision was based on the evidence presented and the applicable legal principles, which established the defendant's guilt and the appropriate sentence for the crime committed.

Orders