R v Gillard - [2007] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v GILLARD
[2007] SASC 182
Reasons for Ruling of The Honourable Justice Nyland
21 May 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION - ISSUE AND VALIDITY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE
Accused jointly charged with Gerald Preston with two counts of murder and one count of attempted murder – application to exclude various records of interview – whether failure to comply with the requirements of order for extradition pursuant to Service and Execution of Process Act (Cth) 1992 – failure to comply with the provisions of s 74D of Summary Offences Act 1953 – Form 6 1921 used for warrant – whether valid warrant pursuant to s 103 Summary Procedure Act 1921 – no mandatory requirements as to form - details required by s 20 Summary Procedure Act 1921 included – warrant valid - no improper conduct on part of police – statements made by accused voluntary – non compliance with s 74D inadvertent - statements admissible pursuant to s 74E(1)(b) Summary Offences Act 1921.
Correctional Services Act 1982 s 28; Criminal Law Consolidation Act 1935 ss 11, 269MB(1); Magistrates Court Rules 1992 Rr 38.01, 38.03; Service and Execution of Process Act 1992 (Cth) ss 83, 83(1), 89(1); Summary Procedure Act 1921 ss 20, 58, 103; Summary Offences Act 1953 ss 74C, 74D, 74E, 74F, 74G, 78(3), referred to.

R v GILLARD
[2007] SASC 182
REASONS FOR RULING ON VOIR DIRE ON RULE 9 APPLICATION MADE ON 13 OCTOBER 2006.
NYLAND J:

Kevin Wayne Gillard (Gillard) was jointly charged with Gerald David Preston on an information dated 15 September 1997 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 Kym Traeger.
On 27 October 1998, both Gillard and Preston were found guilty of all three charges. Gillard was sentenced to be imprisoned for life and the non-parole period was fixed at 25 years. An appeal against those convictions was dismissed by the Court of Criminal Appeal on 21 December 2000.
On 12 November 2003, the High Court allowed an appeal by Gillard against the order of dismissal of the Court of Criminal Appeal. Gillard’s convictions were quashed and an order was made for a new trial.
Rule 9 Application:
On 15 September 2004, Gillard was re-arraigned in the Supreme Court and pleaded not guilty to all of the charges against him. On 1 December 2004, an application was filed pursuant to Rule 9 in which Gillard sought the making of the following orders:
1.An order excluding any evidence of conversations between the accused…

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 [2007] SASC 182
Case: [2007] SASC 182
Decision Date: 21 May 2007

CaseChat Overview and Summary

The case of R v Gillard involves a joint charge with Gerald Preston on two counts of murder and one count of attempted murder. Gillard’s application to exclude various records of interview was considered, as was whether there was a failure to comply with the requirements of the order for extradition under the Service and Execution of Process Act 1992, and a failure to comply with the provisions of section 74D of the Summary Offences Act 1953. Additionally, the court examined whether the Form 6 warrant used was a valid warrant under section 103 of the Summary Procedure Act 1921, and if the police conduct was improper and if the statements made by Gillard were voluntary. The admissibility of the statements in light of section 74E(1)(b) of the Summary Offences Act 1921 was also assessed.

The central legal issues before the court were whether the warrant used for Gillard’s apprehension was valid, whether the police had conducted themselves properly during Gillard’s apprehension and interview, and whether the statements obtained from Gillard were voluntary and admissible. Specifically, the court had to determine whether the failure to comply with the extradition order and section 74D of the Summary Offences Act 1953 rendered the statements inadmissible, and if the warrant was valid despite the use of a Form 6. Furthermore, the court needed to assess the propriety of police conduct during Gillard’s interrogation and whether the statements were made voluntarily.

The court found that the warrant used for Gillard’s apprehension was valid as it included all the necessary details required by section 20 of the Summary Procedure Act 1921, despite the use of a Form 6. The court also determined that there was no improper conduct on the part of the police and that Gillard’s statements were voluntary. The inadvertent non-compliance with section 74D did not affect the admissibility of the statements under section 74E(1)(b) of the Summary Offences Act 1921. Therefore, the statements were deemed admissible.

The court ordered that the statements made by Gillard during the police interviews be admitted as evidence in the trial.

Orders

Orders of the court

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Background

Background to the litigation

The evidence at the voir dire was primarily confined to the evidence of the various police officers who were involved in Gillard’s apprehension in Queensland, his subsequent return to Adelaide and the interviews conducted with Gillard at various times. The defence did not call any evidence on the voir dire. Before turning to a discussion of the evidence I indicate that I thought that each of the police officers gave a truthful evidence and did the best he could to give accurate and reliable evidence about these matters, notwithstanding difficulties in recalling events which occurred approximately 10 years ago.Background – the prosecution case: At the commencement of the voir dire hearing, Mr Kimber provided the court with a document setting out the broad outline of the prosecution case on the understanding that the document was for use solely on the voir dire. That document contains some reference to the evidence of witnesses from the first trial who are now deceased and it was accepted that there might need to be some argument as to the admissibility of that evidence. In addition, Mr Kimber indicated that not all factual matters set out on the document were necessarily found in the statements filed, as some of the facts referred to in the document were extracted from oral evidence of witnesses given at the first trial or from matters that were agreed at the first trial. Bearing in mind those limitations I have to some extent relied upon that document to provide a background as to the issues which now arise for determination on the voir dire. The deceased, Knowles, conducted a motor vehicle repair business in a workshop at Lonsdale. The deceased, Richards, was a friend of Knowles and worked for him. Knowles also employed two motor mechanics, one of whom was the victim, Traeger. The prosecution case against Gillard with respect to the murders of Knowles and Richards and the attempted murder of Traeger is that the crimes were committed as part of a joint enterprise with Gerald Preston. Gillard and Preston were close friends and at the time of the alleged offences had known one another for about ten years. It is the prosecution case that at about midday on Thursday, 15 August 1996, Gillard drove Preston to Knowles’ workshop at Lonsdale in a stolen yellow Ford Econovan. Gillard parked the van in front of an open roller door entrance to Knowles’ workshop. At that time, Traeger and another mechanic Leane were inside the workshop working on vehicles. Knowles and Richards were in a small office inside the entrance to the workshop. In order to get to the office it was necessary to walk through the workshop area. The prosecution allege that Preston alighted from the van and entered the workshop. He was masked and armed with a 9 mm Luger pistol. Gillard, however, remained outside in the driver’s seat of the van. Preston walked through the workshop into the office and confronted Knowles and Richards. He asked which one of them was “Les”. Both denied being “Les”, following which it is alleged that Preston shot Knowles and Richards in the head from close range. Preston then went to leave the office but to do so he had to walk through the workshop. He noticed Traeger there and fired a shot at him. The bullet grazed the inside of Traeger’s left forearm but did not cause any serious injury. Preston then got back into the passenger side of the van which was driven away by Gillard.

Evidence

Evidence Before The Court

The poster indicated that Gillard was wanted for a double murder at Lonsdale South Australia and extradition was considered. The poster included the statement:Has been known to carry a concealable firearm. APPROACH WITH CAUTION POSSIBLY ARMED AND DANGEROUS.The evidence of Richard Lacey: Lacey’s recollection was that when he saw Gillard he was wearing only a towel. Lacey approached him and said (Tr 36-37):A.Okay. I approached him.I said ‘Kevin, is it?’I said ‘I’m Richard Lacey and this is Steve Hatton. We’re from the Dutton Park CIB’.He said ‘Yes’.I said ‘We want to speak to you about an incident which occurred in South Australia’.He said ‘So I suppose I’m coming with you’.I said ‘That’s what we would like. I would rather talk about this at the office’.He said ‘No worries’.Hatton said ‘Do you want to know what this is about?’He made no reply. We then returned to the office of the Dutton Park CIB. Lacey said that before they left St Vincent de Paul they collected a green army style duffle bag belonging to Gillard. Lacey said that Gillard was not handcuffed whilst in his presence and he did not consider that Gillard was under arrest. Lacey said that they arrived back at Dutton Park at about 6.40 pm. They took Gillard to the CIB office where Gillard was given a seat in the day room. Lacey said that he had a further conversation with Gillard in that area in the following terms (Tr 40-41):A.Yes. I said ‘Kevin, are you from South Australia?’He said ‘Yeah’.Detective Hatton then said ‘When did you get to Queensland?’He said ‘A couple of months ago’.Hatton then said ‘Why did you come here?’He said ‘For a holiday and to see my brother’.I said ‘We’ve received information that you may be involved in a murder in South Australia. Do you know anything about this?’He said ‘No’.I said ‘There is some other detectives who want to talk to you about this. They have all the details. Are you prepared to wait a little while with us until they get here?’He said ‘Yeah’.Q. What happened then.A.At this stage, the defendant – sorry, the accused – placed his head in his hands and crouched over (INDICATES).I said to him ‘What’s up?’He said ‘This is going to get me killed’.I said ‘What do you mean?’He said ‘They’ll fucking kill me’.Hatton said ‘Who is “they”?’He said ‘The bikies, mate’.Hatton said ‘Which bikies?’He said ‘I can’t tell you’.‘You will have to wait until the other detectives get here’.He said ‘Yeah’ Lacey said that he subsequently contacted Detective Campbell, who had been looking after the matter in Queensland, as well as Mick Sherry of the South Australian police. Lacey said he also contacted Sergeant Plant of the Queensland police, as officer in charge, to obtain permission to call Detective Campbell out on overtime to attend to the matter. Lacey said that whilst they waited for Campbell, Gillard continued to be seated in the day room. He was given a local paper to read and supplied with a meal from McDonalds. Lacey said that during that time there was no further conversation about the Lonsdale shootings. The only conversation related to enquiries about having a drink or going to the toilet and the like. During this period he described Gillard as (Tr 45):… like a quiet person, he was resigned, seemed a little bit weary, he wasn’t a very talkative person and that’s possibly by nature. I didn’t draw any inference from that personally, but very quiet, resigned type of person.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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