R v Gillard - [2008] SASC 38

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 38
NYLAND 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…

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 Gillard

Details

AGLC: R v Gillard [2008] SASC 38
Case: [2008] SASC 38
Decision Date: 22 February 2008

CaseChat Overview and Summary

The case of R v Gillard involves an appeal against the accused's convictions for two counts of murder and one count of attempted murder, which he committed jointly with another individual, Gerald David Preston. The trial court found both Gillard and Preston guilty of these offences. Gillard subsequently appealed to the High Court, which allowed the appeal, quashed his convictions, and ordered a new trial. At the retrial, Gillard was found unfit to stand trial due to mental impairment. The trial proceeded on the objective facts pursuant to section 269MB of the Criminal Law Consolidation Act. Gillard was found guilty of the objective facts of murder and attempted murder, and a supervision order was made with a limiting term fixed for life.

The legal issues in this case revolve around the doctrine of common purpose in criminal law and the requirement to leave an alternative verdict of manslaughter to the jury. Gillard argued that the trial court erred in not directing the jury to consider manslaughter, particularly under the armed robbery hypothesis. Gillard claimed that he was unaware of Preston's intention to kill and believed they were there to commit a robbery. The High Court held that the trial court's refusal to leave manslaughter to the jury was a wrong decision on a question of law and that a substantial miscarriage of justice had occurred. The case also addresses the implications of amending legislation and the application of the trial of objective facts under section 269MB.

The High Court's reasoning in allowing the appeal and ordering a new trial was based on the scope of the common design and Gillard's foresight of the possible incidents of the carrying out of the common design by Preston. The court found that there was a viable case of manslaughter that should have been left to the jury. The culpability of the secondary offender, Gillard, depended on his foresight as to the possible incidents of the carrying out of the common design by the principal offender, Preston. The court concluded 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. Gillard's conviction was quashed, and a new trial was ordered. At the retrial, Gillard was found unfit to stand trial due to mental impairment, and the trial proceeded on the objective facts. Gillard was ultimately found guilty of the objective facts of murder and attempted murder, and a supervision order was made with a limiting term fixed for life.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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; and3. 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 1Finding of unfitness to stand trial:

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.