R v Gillard
[2008] SASC 38
•22 February 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GILLARD
Criminal Trial by Judge Alone
[2008] SASC 38
Judgment of The Honourable Justice Nyland
22 February 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
Accused found guilty of two counts of murder and one count of attempted murder committed jointly with another person - conviction set aside on appeal - at retrial accused found unfit to stand trial by reason of mental impairment - trial thereafter of objective facts pursuant to s 269MB Criminal Law Consolidation Act - effect of amending legislation - trial proceeded in accordance with earlier provisions - co-offender responsible for firing shots which killed two of the victims - accused not present but remained outside in car - accused claimed that he was unaware of intention to kill - accused's belief that the purpose for attending premises was to commit a robbery irrelevant on trial of objective facts - objective facts of murder and attempted murder proved - supervision order made with limiting term fixed of life.
Criminal Law Consolidation Act 1935 ss 269A and 269MB, referred to.
R v T (1999) 75 SASR 235, applied.
Maxwell v Murphy [1956-57] 96 CLR 261; Question of Law Reserved (No 1 of 1997) 70 SASR 251; R v James [2002] SASC 311 (unreported), considered.
R v GILLARD
[2008] SASC 38NYLAND J:
Trial by Judge Alone:
By information dated 15 September 1997, the accused (Gillard), was jointly charged with Gerald David Preston (Preston) with having committed at Lonsdale on 15 August 1996:
1. the murder of Leslie Shane Knowles;
2. the murder of Timothy Lawrence Richards; and
3. the attempted murder of Robert King Traeger.
Background:
On 15 August 1996, Gillard and Preston drove to the car repair workshop of Knowles in a van stolen by Gillard at Preston’s request. When they arrived at the workshop, Gillard remained in the van while Preston went into the workshop and shot and killed Knowles and Richards, and wounded Traeger. The case against Preston at trial was that he was a hired killer, who had been contracted to kill Knowles. The case against Gillard was that he was a party to the plan to kill Knowles, and that he was aware of the intention with which Preston acted. Evidence was led that Gillard must have known that Preston went into the workshop with a loaded gun. Gillard did not give evidence, but had told police in an interview that he was unaware of Preston’s plan to kill anyone. It was his belief that they were there to commit a robbery.
The first Trial:
The prosecution contended at trial that in respect of Gillard, and on the robbery hypothesis, there was a case of manslaughter to be left to the jury, on the basis of a common purpose between Gillard and Preston of engaging in an act of criminal violence, which included the use of a loaded gun.
Counsel for Gillard maintained that the judge should not direct the jury as to a verdict of manslaughter, and that the direction should be confined to a conviction or acquittal on the murder charge. The judge agreed with that submission. He did not leave the alternative verdict of manslaughter for the jury’s consideration. He directed the jury that to convict Gillard of murder, the prosecution had to prove that Preston and Gillard shared a common purpose to kill Knowles and to exclude as a reasonable possibility that Gillard was acting with a purpose of participating in a robbery. Gillard and Preston were both found guilty of all three offences. Gillard subsequently appealed to the Full Court of the Supreme Court on the ground that manslaughter should have been left to the jury. That appeal was dismissed on the ground that there had been no error in not leaving manslaughter as a possible verdict, as the jury would not have been able to find an agreement or understanding between Gillard and Preston to satisfy the requirement of common criminal purpose.
High Court Appeal:
On 12 November 2003, the High Court allowed an appeal by Gillard and ordered that his convictions be quashed and made an order for a new trial. The High Court held[1] (at 2):
(1)That liability under the doctrine of common purpose did not depend on identity of purpose. The culpability of the secondary offender depended on the scope of the common design and on that offender’s foresight as to the possible incidents of the carrying out of the common design by the principal offender.
(2)That on the armed robbery hypothesis, there had been a viable case of manslaughter which should have been left to the jury. There would have been a common purpose of engaging in an act of criminal violence involving the hostile use of a loaded gun. The secondary offender would have been guilty of manslaughter if he had foreseen as a possibility that the principal offender might shoot but had not foreseen shooting with intent to kill or cause grievous bodily harm. Refusal to leave manslaughter to the jury was a wrong decision on a question of law.
(3)That if a jury was deprived of the opportunity to consider the intermediary position of manslaughter, it was not possible to say that no substantial miscarriage of justice had occurred because the jury had been properly instructed on the elements of murder and they had convicted of murder. (Citations omitted)
[1] Gillard v R [2003] 219 CLR 1
Finding of unfitness to stand trial:
On 15 September 2004, Gillard was re-arraigned in the Supreme Court and pleaded not guilty to all of the charges against him. Gillard subsequently filed an application pursuant to Rule 9 seeking various orders for the exclusion of evidence from the trial. The voir dire hearing with respect to those matters commenced on 1 February 2005. On 4 February 2005, the matter was stood over at the request of Gillard’s counsel due to problems encountered with respect to Gillard’s health. Investigations were subsequently made with respect to Gillard’s mental state, as a result of which, following an inquiry on 20 March 2006, I recorded a finding that Gillard was unfit to stand trial, that is, that he would not be able to respond rationally to the charge nor follow the evidence or the course of the proceedings. In those circumstances, it was necessary to continue the proceedings pursuant to the provisions of s 269MB(1) Criminal Law Consolidation Act 1935 and to hear evidence and representations put by the prosecution and the defence relevant to the question of whether a finding should be recorded that the objective elements of the offence of murder had been established.
Trial of objective facts:
Before proceeding with the trial of objective facts, I considered it was necessary to complete the hearing of the voir dire application. I eventually ruled on those matters on 13 October 2006, although the written reasons were not published until 21 May 2007, that being the same day as the trial of objective facts was listed for hearing. On the trial of the objective facts, Mr Kimber appeared as counsel for the Director of Public Prosecutions and Mr Richards appeared for Gillard.
Gillard had earlier elected to be tried by judge alone. By the time of the trial of the objective facts, factual issues had to a large extent been resolved. It was therefore agreed that on the trial of the objective facts, the prosecution could proceed by way of tendering a set of admitted facts, together with statements of various witnesses and some exhibits, without being required to call the deponents to the various documents. As a result of that agreement, the only witness to give oral evidence at the trial was Mr Peter Lawrence, a ballistics expert, whose qualifications were not disputed by the defence. He was provided with Exhibit P13, that is, the Luger pistol which had been used by Preston to kill Knowles and Richards, and he demonstrated how a magazine would be loaded into it and the manner in which it would be fired.
Statement of agreed facts:
As a result of the agreement for the tendering of documents, a number of exhibits were admitted into evidence.
Exhibit P1 is the statement of admitted facts as at 21 May 2007, and I find in accordance with those admissions. I should add that some of the matters referred to therein are also referred to in my reasons for ruling on the voir dire[2] published on 21 May 2007. In order to understand the issues which arise for determination, it is appropriate to set out the admitted facts in full.
[2] R v Gillard [2007] SASC 182 (unreported)
INTRODUCTION
1. Gillard is charged with the Murders of Leslie Knowles and Timothy Richards (Counts 1 and 2) and the Attempted Murder of Kym Traeger (Count 3). Those charges are on an Information dated 15 September 1997 (“the Information”).
2. At about midday on 15 August 1996 Leslie Knowles (“Knowles”) and Timothy Richards (“Richards”) were shot and killed by Gerald Preston. The fatal injuries sustained by both Knowles and Richards are set out in the evidence of Dr Ross James. Those shootings took place in an office within a workshop known as “Les’ Auto Repairs”.
3. On the same day and at the same time Kym Traeger was shot at by Gerald Preston as Gerald Preston exited the workshop having shot both Knowles and Richards. The injuries sustained by Traeger are set out in his statement and the statement of Dr Pearce.
4. Gerald Preston had been driven to the workshop where the above shootings took place by Kevin Gillard. He had been driven there in (a) yellow Ford Econovan (“the Econovan”).
5. Observations of the van parked at the entry to the workshop where the shootings took place and of the sound of the shots fired in the workshop were made by the witness(es), Martin, Finch, House,Traeger and Leane.
BACKGROUND
6. As at 15 August 1996 Gerald Preston (“Preston”) lived with his de-facto wife, Vivienne Pitts, at 27 Salter Crescent, Christies Beach. He was unemployed. He was attending a job skills and training course in the city called “Comskil”. Kevin Gillard was a friend of Preston’s.
7. As at 15 August 1996 they had known one another for about ten years.
8. As at 15 August 1996 Kevin Gillard (“Gillard”) was boarding with a woman by the name of Linda Machin at 10 Marilyn Crescent, Christies (sic) Downs. He was unemployed.
THE SHOOTINGS
9. At about midday on Thursday 15 August 1996 Gillard drove Preston to the motor vehicle workshop of Knowles at Lonsdale. Gillard and Preston drove there in the Econovan. At the time of the shootings Preston’s face was covered in some way. Preston was armed with a 9mm Luger pistol. On arrival at the workshop, Gillard parked the van in front of an open roller door entrance to the workshop.
10. At the time that the Econovan pulled up at the workshop two motor mechanics, Leane and Traeger, were inside the main area of the workshop working on vehicles. Leane was underneath a vehicle and Traeger was standing either to the rear or to the side of a vehicle. The two deceased, Knowles and Richards, were in a small office inside the workshop. In order to get to that office it was necessary to walk through the workshop area where Leane and Traeger were.
11. When the Econovan arrived at the workshop, Gerald Preston alighted from the front passenger seat of the van and entered the workshop. Gillard remained in the driver’s seat of the van. Preston walked through the workshop and into the office and confronted Knowles and Richards. He asked the two men “Who is Les? Which one of you is Les?”, or said words to that effect. Both deceased stated that they were not Les Knowles. Preston then shot both Knowles and Richards in the head from close range.
12. Preston then exited the office and walked back through the workshop towards the Econovan. He saw Traeger and fired a single shot at him. The bullet grazed the inside of Traeger’s left forearm. Preston then exited the workshop and got back into the passenger side of the van. The van was then driven away by Gillard.
13. At the time of the shootings, Gerald Preston had a close connection to a man by the name of Terry Tognolini who was a member of an outlaw motorcycle group in Melbourne. Gerald Preston contacted him following the shootings and visited him in Melbourne on the weekend after the shootings.
14. Phone records establish that Preston’s mobile phone was on a train from Noarlunga to Adelaide at 1:32pm. A call was made to that phone at that time from a public phone at the Noarlunga Transport Interchange. That train had left Noarlunga at 1:13pm.
THE YELLOW VAN
15. Approximately 10 or 15 minutes after the shootings the Econovan used by Gillard and Preston at the scene of the shootings was located behind a Spotlight store on Beach Road at Christies Beach. It had been driven there from Knowles’ workshop by Gillard. Once there Preston left the van while Gillard remained and burnt it. That location was about 900m from the home of Gerald Preston at 27 Salter Crescent, Christies Beach and about 2 kms from Marilyn Crescent, Christies Downs, where Gillard was living.
16. The van located behind Spotlight was set alight by the use of petrol.
17. After burning the van, Gillard returned home but later disposed of clothing and false number plates into a bin on Beach Road at Christies Beach.
18. The van used in the shootings had been stolen from North Terrace in Adelaide on Monday 12 August 1996 by Gillard at the request of Gerald Preston. The van belonged to a man by the name of Keith Dinsdale. Having stolen the van on Monday 12 August 1996 Gillard then drove it to the unit of Ron Preston at Unit 5, 14 Washington Street, Hilton. Ron Preston is the younger brother of Gerald Preston.
19. When Gillard left the van at that unit on 12 August 1996 he said words to Ron Preston to the effect of “Don’t touch it, it’s coming from your brother”. The van then remained there until the morning of 15 August 1996 when Ron Preston saw Gillard collect that van.
20. On or about 12 August 1996 and certainly before 15 August 1996, Michael Slabodian, an associate of Gerald Preston’s, made up a set of false number plates and delivered them to the unit of Ron Preston. He did that at the request of Gerald Preston. They were the false magnetic number plates which were used on the van on the day of the shootings.
21. On the morning of 15 August 1996 Kevin Gillard had collected that van from Ron Preston’s unit at the request of Gerald Preston. He then drove that van to the southern suburbs and to the Noarlunga Transport Interchange where he collected Gerald Preston at his request.
22. Having collected Gerald Preston, Gillard drove the van to locations around Knowles’ workshop before eventually driving the van to the open roller door entrance to the workshop and waiting while Preston entered the workshop.
23. Gillard stole the van from North Terrace on Monday 12 August 1996 by unplugging the ignition switch which was in the vehicle and plugging in a substitute ignition switch that Gillard had and for which he had a key. That “foreign” ignition switch was then removed from the van before it was set alight behind the Spotlight store on 15 August 1996.
OTHER EVENTS FOLLOWING SHOOTINGS
24. Gillard continued to associate with Gerald Preston following the shootings for a period of time. In particular, on Monday 19 August 1996 Gillard was present at the home of Gerald Preston. On this day, the weapon used in the shootings was placed in the car of Preston’s step-mother, Ivy Preston, to be taken to Moonta where she lived. Gerald Preston was not present at the house when his stepmother and father arrived. He arrived later. However, Gillard was present when Ivy Preston arrived. It is not the prosecution case that the gun was actually placed into the car by Gillard. Preston had arranged for Ivy Preston to come to his house on that day.
25. On the weekend of 14 September and 15 September 1996 Gillard looked after the home of Gerald Preston at 27 Salter Crescent, Christies Beach. He did that while Gerald Preston travelled to Victoria for the weekend.
26. Between 2 September 1996 and 7 November 1996 both the home and mobile phones of Preston were intercepted by police. On 29 September 1996 and 2 October 1996 Gillard made a number of phone calls to Gerald Preston. Those calls were recorded.
27. The firearm used to fire the fatal shots belonged to Gerald Preston. It was a 9mm luger pistol. On the evening of 2 November 1996 Gerald Preston contacted his father by telephone and requested that his father dispose of that firearm. On Sunday 3 November 1996 police attended at the home of Peter Preston and Ivy Preston at Moonta. In the boot of a motor vehicle at that house the police located 2 tins. Both contained wet cement. In one of the tins was the 9mm Luger pistol. In the other, among other items were two pistol magazines that fitted the Luger, a quantity of ammunition of the same type as that used on 15 August 1996, and an ignition switch and key that fitted that ignition switch.
28. Later, ballistic tests showed that the Luger pistol found at Moonta on 2 November 1996 had fired the shots at the workshop on 15 August 1996.
29. The ignition switch found on 3 November 1996 could be used to start an Econovan of the same type as that driven by Gillard on 15 August 1996. Further, Gillard later admitted to the police that was the ignition switch that he had used to steal the Econovan at the request of Gerald Preston.
30. Gerald Preston was arrested by the police on 3 November 1996. On 27 October 1998 Gerald Preston was convicted in the Supreme Court of Counts 1 - 3 inclusive on the Information.
GILLARD’S APPREHENSION IN QUEENSLAND
31. At some point, probably during the latter part of October 1996, Gillard left South Australia.
32. On 6 November 1996 a warrant for Gillard’s apprehension was issued by the Adelaide Magistrates Court. At around that time South Australian Police had information from Gillard’s ATM account he was conducting transactions in Brisbane.
33. On 9 December 1996 a number of Queensland Detectives located Gillard at a St Vincent De Paul Hostel in Brisbane. Gillard accompanied the police back to the Dutton Park Police Station.
34. Whilst back in the Dutton Park Police Station the police officer Lacey noticed that Gillard appeared agitated and there was a conversation between Lacey and Gillard during which Gillard expressed a fear that the bikies would cause him harm. Gillard refused to identify the bikies about whom he was speaking.
35. Gillard was spoken to on video by Detective Campbell and his partner, Benson, at about 10:30pm. That interview was videotaped. During that interview Gillard denied any knowledge of the shootings.
36. At the conclusion at the above video interview there was a conversation with the police which was not recorded on video tape. Notes were later made. In essence, Gillard indicated there was something that he wanted to tell the police but was too frightened to do so. He indicated that he was too frightened because of the person or persons involved. He refused to elaborate. Gillard was then taken to the Brisbane City Watch House where he was charged and placed in the cells.
37. At about 9:30am on Tuesday 10 December 1996 Gillard appeared before the Brisbane Magistrates Court and was remanded in custody until 9:30am on Thursday 12 December 1996 when his extradition hearing was to take place.
38. Later that same day, Detectives Campbell and Benson attended at the City Watch House and spoke to Gillard. During this conversation, Gillard expressed concern about being returned to South Australia because of who was involved. Again, he declined to elaborate on to whom he was referring.
39. On Wednesday 11 December 1996, Detectives Sherry and Roy from the Major Crime Task Force in South Australia flew to Brisbane. They saw Gillard at the Brisbane City Watch House. They had a brief conversation with him, no admissions were made.
40. Gillard appeared in the Brisbane Magistrates Court on Thursday 12 December 1996 and an order was made that he be returned to South Australia in the custody of Sherry.
41. Following the extradition hearing, Detectives Sherry and Roy spoke to Gillard in a room at the Brisbane City Watch House. Parts of this conversation were recorded on audiotape. Gillard made admissions with respect to his actions on 15 August 1996 and his involvement with the Econovan before that date.
GILLARD’S RETURN TO ADELAIDE - 13 DECEMBER 1996
42. On Friday 13 December 1996 Sherry and Roy flew back to Adelaide with Mr Gillard in their custody. They arrived in Adelaide at about 3:30pm.
GILLARD’S ADMISSIONS - 13 DECEMBER 1996 - WITH THE MAJOR CRIME OFFICE AND VARIOUS LOCATIONS
43. At about 4:20pm Gillard was taken to the Major Crime office where a videotaped interview commenced about 10 minutes later. He was interviewed on videotape by both Sherry and Roy.
44. During the interview at the Major Crime Taskforce on 13 December 1996 Gillard repeated and elaborated on the admissions that he had made in Brisbane on 12 December 1996. At the conclusion of that interview he agreed to take Detectives to the various locations which were relevant to the shootings. At about 5:45pm he left the Major Crime office in the company of Detective(s) Sherry, Roy, Jeffrey and Harding.
45. Having left the Major Crime Taskforce Gillard went with the police to a number of locations relevant to the events of 15 August 1996. At each of those locations he had a conversation with the police about the events surrounding his stealing of the van on 12 August 1996 and the events of 15 August 1996. All of these conversations were videotaped.
GILLARD’S FINAL INTERVIEW - 17 DECEMBER 1996
46. On 17 December 1996, Detectives Sherry and Roy removed Gillard from the Yatala Labour Prison for the purpose of him being conveyed to the Holden Hill Police Station. Once at the Holden Hill Police Station both Sherry and Roy conducted a further videotaped interview with Gillard.
47. The primary purpose of that interview was to show Gillard the ignition switch that police had located at Moonta and to ascertain how that switch had been used to steal the Ford Econovan. Gillard said that the ignition switch he was shown was the one that he used to steal the van and explained how that had been done.
(Footnotes omitted)
Statements tendered by consent:
The other significant exhibit is Exhibit P2 which is a folder of statements containing the following:
· Statement of Brian Kay, dated 27 August 1996. Mr Kay is a police officer attached to the criminal drafting section. A copy of his plan of the area of the workshop where the shootings took place is attached to his statement.
· Two statements of Paul Burnside, dated 10 December 1996 and 11 May 2007 respectively. Mr Burnside is a crime scene officer and he attended the scene of the shootings and provided photographs of it (Exhibit P3).
· Two statements of Ian Fisher, dated 3 December 1996 and 13 May 1998 respectively. Mr Fisher is a police officer attached to the fire investigation branch. He took photographs (Exhibit P4) at the rear of the Spotlight store where the van used by Gillard and Preston was burnt by Gillard.
· Statement of Andrew Pearce, a medical practitioner. He treated the victim, Robert Traeger, at the Flinders Medical Centre on 15 August 1996. Mr Traeger had an injury to his left arm which was consistent with a bullet wound.
· Evidence of Dr Ross James from the first trial consisting of transcript pages 2029 to 2042 from that trial. Dr James is the forensic pathologist who examined the bodies of Les Knowles and Timothy Richards.
· Statement of Stephen Leane, a mechanic. He was in the workshop working on a vehicle with Mr Traeger at the time of the shooting.
· Statement of Robert Traeger, dated 30 August 1996, the victim with respect to Count 3.
· Statement of Heils Martin, dated 6 September 1996. Mr Martin was in a washing machine repair shop opposite the workshop at the time of the shootings. He heard shots coming from that area and saw a man (Preston), getting into the vehicle after the shootings.
· Statement of Barbara House, dated 8 December 1996. Ms House was with Mr Martin at the relevant time.
· Two statements of Walter Finch, dated 20 December 1996 and 18 August 1996. Mr Finch was the man who ran the washing machine repair shop across the road from the workshop.
· Statement of David Machin, dated 21 November 1996. Gillard was residing with Mr Machin at Christie Downs at the time of the shootings.
· Two statements of Michael Slobodian, dated 1 June 1998, and 29 June 1998. Mr Slobodian at the request of Mr Preston made a set of false number plates which were delivered to the home of Preston’s brother, Ron, at some time before the day of the shooting.
· Statement of Ron Preston, dated 11 May 1998. He is the brother of Gerald Preston, and it was at his unit that the van was stored for a period of three days.
· Two statements of Ivy Preston, dated 10 May 1998 and 10 July 1998. She is the stepmother of Gerald Preston and prior to the shootings had custody of the gun. She brought it down to Adelaide at the request of Preston in advance of the shootings, along with bullets and magazines. On the Monday following the shootings, that is, 19 August 1996, she went to Preston’s house at Christies Beach where a number of items were packed into her car and into the trailer. She discovered on returning to Moonta that the gun and other items had been packed into her car. There was no direct evidence that that was done by Gillard, although he was present on that day. Within the same packages was an ignition lock and key which Gillard later admitted belonged to him and which was the one that he used to steal and drive the van on the day in question.
· Statement of Vicki Preston, dated 29 May 1998. Vicki Preston was the ex-wife of Preston.
Other Exhibits:
In addition, I was provided with Exhibit P5 which is a plan of the southern suburbs on which the following relevant locations are marked:
1.The location of the Lonsdale workshop.
2.The location of a public phone box on O’Sullivan Beach Road.
3.Not relevant.
4.Location where the van was driven to and burnt by Gillard at the rear of the Spotlight store.
5.The approximate location of the Salvation Army store where Gillard disposed of clothing and other items.
6.Approximate location of 27 Salter Crescent, which was the residence of Gerald Preston at the relevant time.
7.The location of the transport interchange, being the location from which Gillard said he had collected Preston on 15 August 1996, before going to Lonsdale.
8.The place at which Gillard was residing at the relevant time.
Exhibit P6 consists of the evidence taken on the voir dire hearing. Exhibits P7, P8, P9, P10, P11 and P12, include video taped interviews with Gillard at various times, together with a booklet of transcripts of those interviews, all of which were the subject of my ruling delivered on 21 May 2007 (supra).
Exhibit P13, is the Luger weapon and two magazines. It was agreed that this was the Luger referred to in the statements of Vicki Preston and Ivy Preston, as well as in paras 24, 27 and 28 of the admitted facts, and that it was the weapon used on the occasion of the shooting on 15 August 1996 which was found by the police on 13 November 1996 at the home of Ivy Preston at Moonta.
Exhibit P14 is the ignition switch and Exhibit P15 is the key which Gillard admitted belonged to him.
Exhibits P16 and P17 consist of telephone intercept recordings and transcripts of them.
Part 8A Criminal Law Consolidation Act 1935:
In view of my finding that Gillard is unfit to stand trial, the provisions of Part 8A Criminal Law Consolidation Act 1935 apply to the trial of the objective facts. Part 8A was assented to on 7 December 1995 and came into operation on 2 March 1996. Knowles and Richards were killed by Preston on 15 August 1996, but the finding of unfitness was not made until 20 March 2006. Part 8A was, however, amended by the Criminal Law Consolidation (Amendment) Act 2000 which received assent on 13 July 2000 and came into operation on 29 October 2000.
Section 2 of the Schedule to the Criminal Law Consolidation (Mental Impairment)Amendment Act said:
The principal Act, as amended by this Act, applies to all trials commencing after the commencement of this Act (whether the offence is alleged to have been committed before or after the commencement of this Act).
Section 269MB sets out the procedure to be followed as to the trial of the objective elements of the offence where the court proceeds first with the trial of a defendant’s mental fitness to stand trial. As at 15 August 1996, s 269MB was in the following terms:
(1) If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
(2) If the court is satisfied that -
(a) the objective elements of the offence are established beyond reasonable doubt; and
(b) there is, on the evidence before the court, no defence to the charge that could be established on the assumption that the defendant’s mental faculties were not impaired at the time of the alleged offence,
the court must record a finding that the objective elements of the offence are established and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
Section 269A (which is the definition section) did not contain any definition of “defence”, but inter alia defined “an objective element” as being “an element of an offence that is not a subjective element”. A “subjective element” was defined as “voluntariness, intention, knowledge or some other mental state that is an element of the offence”.
Subsequent to the amendment, s 269MB is in the following terms:
(1)If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
(2)If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(3)On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.
The Amendment Act does not contain any transitional provisions notwithstanding that there are some new provisions. Section 269A now includes a definition of “defence” as follows:
A defence exists if, even though the objective elements of an offence are found to exist, the defendant is entitled to the benefit of an exclusion, limitation or a reduction of criminal liability at common law or by statute.
Section 269MB(3) of the amended Act is also a new provision which requires the court on the trial of the objective elements of an offence to exclude any question of whether the defendant’s conduct is “defensible”. “Defensible conduct” is defined in s269A as follows:
A defendant’s conduct is to be regarded as defensible in proceedings under this Part if, on the trial of the offence to which the proceedings relate, a defence might be found to exist.
Due to the lapse of time between the events which took place on 15 August 1996 and the declaration of unfitness to stand trial on 20 March 2006 it is necessary to consider which version of s 269MB applies to these proceedings. In order to determine that matter, it is necessary to consider whether the amendments made to s 269MB in the year 2000 have retrospective effect.
Mr Kimber submitted that the amendments to s 269MB were not retrospective as they impacted upon the substantive rights of Gillard. They exclude from consideration any possible defence, and affect the manner in which the prosecution is required to prove the objective elements of an offence against a defendant. Further, the result of a finding that the objective elements are established against Gillard would result in him being declared liable to supervision. Otherwise he would be found not guilty and discharged. Those are matters that would impact upon his substantive rights (although that is the position with respect to both versions of s 269MB). Mr Kimber submitted that in the circumstances I should determine the matter in accordance with the earlier version of s 269MB and Mr Richards expressed a similar view.
This is not an easy matter to resolve. The amending legislation does not contain any transitional provisions, nor any statement to suggest that the amendment was intended to have retrospective effect. In Maxwell v Murphy[3], Dixon CJ summarised the position as follows:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
[3] [1956-57] 96 CLR 261 at 267
In this case, I am required to determine Gillard’s liability with respect to acts which took place before the amending legislation, although his unfitness arose and the trial of the objective facts took place thereafter. The amendments to s 269MB are more than just procedural and have potentially significant consequences for Gillard, as they may affect the extent to which he is able to establish a “defence” to the charge. Accordingly his substantive rights are affected. I therefore propose to proceed with the determination of this matter in accordance with the provisions of the earlier version of s 269MB.
In Question of Law Reserved (No 1 of 1997)[4] the Court of Criminal Appeal considered the earlier provisions of Part 8A of the Act following the reservation to it of questions arising out of the trial of a person found mentally incompetent to commit the offence of murder who in ordinary circumstances would have been able to avail himself of the defence of self-defence. Duggan J (with whom Matheson J and I agreed)[5] pointed out that in the case of murder or manslaughter the objective elements were the same. The court found that Part 8A did not provide for alternative verdicts. Accordingly only the elements of murder were to be considered and alternative verdicts such as manslaughter, which would be open at common law, were not available to the defendant. The court considered the state of mind which would attract the defence of self-defence was a subjective element of the offence for the purposes of Part 8A and accordingly was excluded.
[4] 70 SASR 251.
[5] ibid at 264
In this case, the prosecution accept that Gillard did not fire the shots which killed Knowles and Richards and wounded Traeger. Mr Kimber argued, however, that s 269MB should be read as to include those who at trial would have been prosecuted on the basis of being part of a common purpose or on the basis of aiding and abetting, and that the wording of the section was not capable of being read to exclude those in the position of Gillard.
The prosecution argued that Parliament could not have intended that someone who performed overt acts with another, which resulted in the death of a person, although not performing the act which actually causes the death, should escape the provisions of Part 8A of the Act. Were that the case, any person who was part of a joint enterprise, but who did not commit every physical act necessary for the commission of the offence, would not come within the provisions of s 269MB. Consistent with that argument, Mr Kimber submitted that it was sufficient in this case to establish beyond reasonable doubt:
(a) that the shots the subject of each count were fired;
(b) that the death or injury were caused as a result of those shots;
(c) that Gillard committed acts that showed that he “took part” in that he acted with or aided and abetted Preston, and that Preston committed (a) and then (b) resulted.
There appears to be a paucity of authority to assist in resolving this issue, although Mr Kimber relied on some dicta in R v James[6] to support his contention that it was enough to prove that Gillard had “taken part” in the offences committed by Preston. In James the defendant was charged with a number of offences including attempted murder and causing grievous bodily harm with intent to do grievous bodily harm. The charges arose out of an assault by a number of defendants on a victim in his unit. The prosecution case at trial was that the defendant was involved in a joint assault upon the victim. The defendant was found mentally incompetent to commit the offences charged, but the trial judge found that the objective elements of each of them had been established, and that the defendant was therefore liable to supervision.
[6] [2002] SASC 311 (unreported)
The appeal against the judge’s finding that the objective elements of the offence had been established was, however, allowed on the basis that the evidence fell short of proof of the defendant’s involvement. The case against the defendant was circumstantial and Lander J (at [41]) expressed the view that the inference drawn by the trial judge that the defendant must have been involved in the beating was not the only rational inference that could be drawn from the evidence. In particular, there was no evidence that the defendant was inside the unit at the time the victim suffered his injuries and there was no evidence that the victim suffered his injuries outside the unit. Mr Kimber submitted however that notwithstanding that conclusion, Lander J appeared to accept that the charges could have been proved against the defendant if there had been acceptable evidence that the defendant had “taken part” in the assault on the victim or had been “involved” in the beating.
I agree with the prosecution submission that in a situation in which two men are charged with murder with evidence of both being present and delivering blows to the deceased, it would be illogical to interpret s 269MB so as to exculpate and discharge the defendant who was subsequently found to be unfit, just because the prosecution was unable to prove which of the two inflicted the fatal blow. The situation in this case, however, is not quite so straightforward. In this case it is common ground that Gillard was not present in the workshop at the time that the shots were fired by Preston and he claims to have been unaware of Preston’s intentions. The prosecution argue however that Gillard was involved in illegal activity with Preston for a considerable period of time both before and after the commission of these crimes and that activity was closely related to the offences committed by Preston. In other words, Gillard’s actions were essential for the commission of the crimes by Preston.
To support the submission that Gillard took part in Preston’s crimes, the prosecution rely on a number of key facts, namely:
1. Gillard stole a yellow Ford Econovan (the van) from North Terrace, Adelaide on Monday, 12 August 1996.
2. Gillard stole the van at the request of Preston using the foreign ignition switch and key (Exhibits P14 and P15).
3. Having stolen the van, Gillard drove it to a block of units at 14 Washington Street, Hilton, and left the van in a car park assigned to the unit of Gerald Preston’s brother Ron, and that he did that at Gerald Preston’s request.
4. Having stolen the van, Gillard rang Preston and told him what he had done, and told him to leave the van there until it was to be used.
5. On the morning of 15 August 1996, at Preston’s request, Gillard collected the van from the unit at which he had left it. There were false numberplates in the van and Gillard placed them onto it.
6. Gillard then drove the van to the southern suburbs and collected Preston from the Noarlunga transport interchange.
7. Having collected Preston, Gillard drove the van from the Noarlunga transport interchange to Lonsdale.
8. While at Lonsdale, Gillard drove into Donegal Road and made a note of the telephone number of “Les’s Auto Repairs”.
9. Gillard then drove a short distance away to a public phone box on O’Sullivan(s) Beach Road, Lonsdale, and used the telephone number he had obtained to make a telephone call from a public phone box on O’Sullivan(s) Beach Road. When the call was answered, Gillard asked whether Les Knowles was present. Gillard was told that he was and Gillard then hung up without speaking to Knowles.
10. Having established that Les Knowles was present, Gillard advised Preston of that fact. He then drove to Donegal Road at Lonsdale with Preston and parked the van a short distance from Les’s Auto Repairs.
11. While in Donegal Road, Gillard and Preston took steps to conceal their appearances. Gillard placed a hood over his head. Preston covered his face. Preston was also wearing gloves.
12. Gillard then drove to the workshop at Les’s Auto Repairs and parked at the roller door entry to that workshop. Preston then exited the front passenger seat of the van carrying the firearm (Exhibit P13). Gillard remained in the car but kept the engine of the van running.
13. Preston shot and killed Les Knowles and Timothy Richards at close range in the office area of Les’s Auto Repairs.
14. Preston subsequently shot and injured Kym Traeger in the workshop area of Les’s Auto Repairs.
15. Preston then returned to the passenger seat of the van and Gillard then drove away with him from the workshop.
16. Gillard drove the van into the area of a rear car park of the Spotlight store on Beach Road at Christies Beach where he had decided earlier in the day to take it.
17. In the car park of the Spotlight store, Preston exited the van leaving Gillard with it.
18. Gillard then set fire to the van using petrol as he considered that his fingerprints would have been on the van from when it was stolen. Gillard also removed the false numberplates from the van.
19. Gillard then left the scene of the van and returned home to Marilyn Avenue, Christies (sic) Downs where he had a shower and changed as he had petrol on him.
20. Gillard retained the foreign ignition switch and key that he had used to drive and steal the van, but gave it to Preston a couple of days later.
21. Later on 15 August 1996, Gillard returned to Beach Road, Christies Beach and disposed of the false numberplates which had earlier been on the van, and also clothing that he had worn earlier that day. Before disposing of the false numberplates he cut them up into a number of pieces.
22. Gillard continued to associate with Preston up until at least 2 October 1996. For example, on 19 August 1996, he was present alone at the home of Preston before Preston arrived home and met his father and stepmother. He was also present at Preston’s house on 7 September 1996, and looked after Preston’s house on the weekend of 14 and 15 September 1996, while Preston was in Melbourne.
It can be seen from this summary of events that Gillard was an active and willing participant in Preston’s activities on the day in question, notwithstanding he was not present in the workshop when the shots were fired. In my opinion, it is of particular significance that Gillard made the phone call to the workshop to establish Knowles’ presence before the two men travelled there. There is no doubt that there was a common purpose to perform some illegal activity that day but the issue arising from the original trial related to the scope of that purpose. Gillard claimed to the police in the course of his interview on 13 December 1996, that at the time that Preston walked into the workshop, that he, that is, Gillard, thought someone was going to be robbed. He said that he “don’t have nothing to do with the crime and guns and I don’t do armed robberies, I don’t shoot people, I did my best not to be involved with things like that”. He also told the police that he did not see a gun nor weapon at any time[7].
[7] R v Gillard [2007] SASC 182 (unreported) at [87]-[88]
This was the aspect of the evidence which led to Gillard’s conviction for murder being quashed by the High Court on the basis that the jury had been deprived of the opportunity of considering the intermediary position of manslaughter on the basis that Gillard had foreseen as a possibility that Preston might shoot but had not foreseen a shooting with intent to kill or cause grievous bodily harm.
The prosecution does not accept that Gillard’s statements to the police as to his state of mind were truthful, but as a result of my ultimate conclusion it is unnecessary to resolve that aspect of the matter. The statements made by Gillard to the police in his interview relate to his state of mind. That is, he claims an absence of knowledge of what Preston was about to do. “Knowledge” is, however, one of the matters referred to in s 269A as being a subjective element. It is therefore excluded from consideration on a trial of objective facts. It cannot therefore provide a defence under s 269MB(2)(b).
In R v T[8], the Court of Criminal Appeal considered an appeal by a defendant who was found mentally unfit to stand trial on four counts of endangering life. The sentencing judge found the objective elements of each of the offences was established beyond reasonable doubt and that no defence to the charge could be established. On appeal the Court held that s 269MB did not require proof of the mental element in question. Doyle CJ said[9]:
… In my opinion the provision cannot be read as requiring proof of the mental element of the offence in question. To so read the provision would be to require the Court, in effect, to make a finding like a finding of guilt. If one thing is clear about the provision, it is that it is not intended to require proof of intention or other mental elements. … the provision does not require the Court to be satisfied that the intent necessary to establish guilt of the offence in question must be established before the relevant finding can be made.
… the fact that the provision refers to a defence, and the fact that it refers to a defence to be established, presumably … (means to be established by) the defendant. … I am satisfied that it does not include proof of intent.
[8] (1999) 75 SASR 235
[9] ibid at paras [34]-[38]
Bearing in mind those comments, it is difficult to see what defence would be available to a defendant in accordance with the provisions of s 269MB(2)(b) although the prosecution suggest that it would be limited to the establishment of an affirmative defence. As Doyle CJ further said with respect to this section in R v T[10]:
I accept the submission made by Mr Gray that the application of s 269MB(2)(b) gives rise to some difficulty. The difficulty is inherent in the concept of a defence in the criminal law. The concepts utilised by the criminal law, coupled with the obligation on the prosecution to prove guilt beyond reasonable doubt, combine to make it difficult to speak with any precision of defences in the criminal law. Nevertheless, that is often done. As Mr Gray pointed out, there is no simple answer to the issues raised by this provision. Even some of the so-called defences such as provocation and self defence raise mental elements. It is no answer to say that the provision must refer to defences like these defences, on the basis that they involve no consideration of mental elements, and that it is the absence of an issue relating to a mental element that identifies the defences to be considered under the provision.
This is not the occasion to sort out all of the problems that arise under this provision. It suffices to say that I am satisfied that the provision does not require the Court to be satisfied that the intent necessary to establish guilt of the offence in question must be established before the relevant finding can be made. I have already referred to some of the matters that lead me to that conclusion. I would add to them the fact that the provision refers to a defence, and the fact that it refers to a defence to be established, presumably referring to something to be established by the defendant. Whatever the precise meaning of all this may be, I am satisfied that it does not include proof of intent.
[10] ibid at paras [37]-[38]
In Question of Law Reserved (No 1 of 1997) (supra) Duggan J pointed out that the exclusion of subjective elements from the matters to be proved before making orders for the supervision was based on a policy decision made by the legislature. Accordingly s 269MB precludes an accused from being found not guilty on the basis that he/she acted involuntarily without intention or without some other mental state that in normal circumstances would be required for guilt. In this case, the exclusion from consideration of Gillard’s knowledge of what Preston was intending to do in the workshop is consistent with the exclusion of a defendant’s claim that he or she acted involuntarily or without the necessary intention or mental state. I am therefore satisfied that the evidence relating to Gillard’s state of mind or knowledge is irrelevant to the determination to be made on the trial on the objective facts.
The present provisions of s 269MB:
In the event that I am wrong in determining this matter in accordance with earlier provisions of Part 8A , I should make some comment about the provisions which now apply. I have earlier referred to the new section s 269MB(3) which excludes from the trial of the objective facts any question of whether the defendant’s conduct is defensible.
There is no specific explanation in the second reading speech as to the terms of defence and defensible in the amending sections, but I agree with the submission put by the prosecution that even if the present provisions of s 269MB apply to this case they would not preclude a finding that the objective elements have been established against Gillard. The definition of a subjective element in s 269A is unaffected by the amendment and continues to exclude “voluntariness, intention knowledge or some other mental state” from consideration on the trial of the objective facts.
As Gillard’s knowledge or belief as to what Preston intended to do in the workshop is excluded from my consideration, it is necessary simply to consider whether the objective facts proved by the prosecution establish the crimes of murder and attempted murder against Gillard. I agree with the prosecution that the legislature could not have intended to exclude from culpability for a crime those persons who participated in a criminal activity who would otherwise have been found guilty on the basis of being part of a common purpose, although not committing the specific act which constituted the crime. In James (supra), the evidence fell short of proving the participation of the defendant in the crime. In this case, however, there is a substantial body of evidence to establish that Gillard was an active and willing partner in Preston’s activities both before and after Preston shot the men in the workshop. As mentioned earlier, I consider it to be of particular significance that Gillard made the phone call to the workshop to establish Knowles’ presence before the two men continued on to the workshop where Preston carried out the killings. Gillard’s participation with Preston in his illegal activities did not end there but continued thereafter and included such overt acts as the destruction of the van.
I am therefore satisfied beyond reasonable doubt that the crimes of the murder of Leslie Shane Knowles and Timothy Lawrence Richards, and the attempted murder of Robert King Traeger were committed by Preston. Having excluded from consideration matters relevant to Gillard’s state of mind, I am satisfied that Gillard was an active participant with Preston in the commission of those crimes, and that he does not have a defence to those charges.
I therefore find that the objective facts of the crimes of murder and attempted murder are proved with respect to Gillard and I record a finding to that effect. I therefore declare that Gillard is liable to supervision pursuant to the provisions of Part 8A of the Act. I therefore make a supervision order and make a further order committing Gillard to detention. Having made those findings, I am obliged to fix a limiting term which is equivalent to the period of imprisonment that would have been appropriate if he had been convicted of the offence of which the objective elements have been established. As the objective facts established two crimes of murder, it is mandatory that I fix a limiting term of life.
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