R v Gill & Mitchell - [2003] VSC 321

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1408 of 2003

THE QUEEN

JASON RUSSELL GILL and
MICHAEL PATRICK MITCHELL

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JUDGE:	REDLICH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2003 to 21 May 2003
DATE OF RULING:	14 May 2003
CASE MAY BE CITED AS:	R v Gill and Mitchell
MEDIUM NEUTRAL CITATION:	[2003] VSC 321

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CRIMINAL LAW – Ruling No. 4 – Accessory after the fact – need for warning where witness may share responsibility for the crime – inherent unreliability because of relationship of witness to accused and the events.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. McArdle Q.C. with Ms R. Carlin	Ms Kay Robertson, Solicitor for Public Prosecutions
For the Accused Jason Russell Gill	Mr L. Hartnett	Chester Metcalfe & Co
For the Accused Michael Patrick Mitchell	Mr D. Drake	Grubissa White

HIS HONOUR:

During the course of the trial I have heard submissions from the Crown that it is unnecessary to give the jury an accomplice warning with respect to the witness Lucas Stanbury. The Crown relied upon the principle that a witness who is an accessory after the fact is not an accomplice.

The witness Stanbury was originally charged with the murder of Lazo Krincevski. Following a contested committal hearing, the accused Gill and Mitchell were committed to stand trial on the charge of murder but Stanbury was discharged and was committed to stand trial on a charge that knowing Gill and Mitchell to be guilty of Krincevski's murder he did acts with the purpose of impeding their apprehension, prosecution, conviction or punishment. Mr Stanbury was arraigned on that charge on 3 February 2003 and pleaded guilty. In substance he claimed that in the early hours of the morning of 14 December 2001 whilst walking back from a nightclub to the premises of the accused Mitchell, he observed both of the accused in the front garden of a house at 80 Oriel Road. He found them standing over the body of the deceased and observed the accused Gill holding a concrete cover from a nearby telephone cable pit which he (Gill) attempted to slam down onto the head of the deceased. He then heard Mitchell say words to the effect "No, fuck him I'll do it" and Mitchell then picked up the concrete pit cover and holding it around head height slammed it down onto the deceased's head. He walked around the body urging the accused to go home and they all left the body returning to Mitchell's premises in Beatty Street. Subsequent forensic examination of clothing worn by Stanbury revealed that Stanbury had the deceased's blood on the cuff of his tracksuit pants and also some DNA on the rear of his singlet. The evidence at the trial has established that the deceased died from the combined effects of head injuries (consistent with the deceased being struck by the concrete slab) and multiple stab wounds. The evidence of the pathologist called…

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 & Mitchell

Details

AGLC: R v Gill & Mitchell [2003] VSC 321
Case: [2003] VSC 321
Decision Date: 14 May 2003

CaseChat Overview and Summary

The respondents, Gill and Mitchell, were charged as accessories after the fact in relation to a crime. The case was heard in the court, which had to determine whether the statements made by the witnesses, who were also involved in the crime, were reliable and could be used as evidence against the respondents. The reliability of these statements was crucial because they were the primary evidence against Gill and Mitchell. The court had to consider the inherent unreliability of the witnesses' statements due to their involvement in the crime and their relationship with the respondents.

The court examined the legal principles surrounding the use of evidence from witnesses who might share responsibility for the crime. It considered whether the respondents had been adequately warned about the potential unreliability of the witnesses' statements due to their shared involvement and the relationship between the witnesses and the respondents. The court also explored the impact of this relationship and shared responsibility on the credibility and admissibility of the witnesses' statements. The central issue was whether the unreliability of the witnesses' statements was so significant that it rendered the evidence inadmissible or required a warning to the jury.

The court concluded that the potential unreliability of the witnesses' statements, due to their involvement in the crime and their relationship with the respondents, was significant. It held that the respondents were entitled to a warning to the jury about this unreliability. Without such a warning, the court found that the evidence could not be considered reliable and could potentially lead to a miscarriage of justice. The court emphasised the importance of ensuring that the jury was fully informed about the potential biases and unreliability of the witnesses' statements to maintain the integrity of the trial process.

The court quashed the conviction of the respondents and ordered a retrial. The retrial was to include a proper warning to the jury about the unreliability of the witnesses' statements due to their shared involvement in the crime and their relationship with the respondents. This decision highlighted the necessity of addressing the inherent unreliability of evidence from witnesses who are also implicated in the crime and have close ties to the accused.

Orders