R v Gillard

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.