Regina v Gosling - [2002] NSWCCA 351

CITATION: REGINA v GOSLING [2002] NSWCCA 351

FILE NUMBER(S): CCA 60683/01

HEARING DATE(S): 26 July 2002

JUDGMENT DATE:
29 August 2002

PARTIES :

Regina
v
Amos Gosling

JUDGMENT OF: Heydon JA at 40; Levine J at 45; Adams J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 70201/01

LOWER COURT JUDICIAL
OFFICER : Howie J

COUNSEL : R A Hulme (Crown)
D G Dalton (Appellant)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Appellant)

CATCHWORDS: Murder - conviction appeal - adequacy of directions - defence case of intoxication and mental disturbance - whether risk that jury only considered intoxication - appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Mental Health (Criminal Procedure) Act 1990
Criminal Appeal Rules

CASES CITED:
Murray v The Queen [2002] HCA 26

DECISION: Appeal dismissed

68603/01

HEYDON JA
LEVINE J
ADAMS J
Thursday 29 August 2002

REGINA v Amos GOSLING

Judgment

1 ADAMS J: This appeal arises out of the killing of one Graham Withington at Banora Point on 15 November 1999 by a shotgun blast in the back. It was the prosecution case that the gun was fired by the appellant, Gosling, who was present at the time with Scott John Denton, Paul David Singleton and Adrian Luke Stelfox. Stelfox had pleaded guilty to manslaughter and was a witness for the prosecution. Gosling, Denton and Singleton were charged with Withington’s murder. In the result, Gosling was convicted of that murder but Denton and Singleton were convicted only of his manslaughter. The trial commenced on 18 July 2001, at which time the appellant pleaded not guilty to the indictment. However, on 26 July 2001, the trial having gone for some days, the applicant was re-arraigned on his own application and pleaded not guilty to murder but guilty to manslaughter. Amongst other things, it followed from the plea that Gosling admitted that the act of firing the shotgun was voluntary and not accidental (cf Murray v The Queen [2002] HCA 26) as distinct, of course, from the issue whether he intended to kill or cause grievous bodily harm. The plea was not accepted by the prosecution in discharge of the indictment and the trial proceeded. Following his conviction, the appellant was sentenced to imprisonment for sixteen years with a non-parole period of twelve years.

2 A significant amount of the evidence at trial was not in dispute. Matthew Denton, the elder brother of the accused Scott Denton, had received a sum of money by way of compensation for injuries he suffered in an accident some time in 1998. He used this money to purchase a house and moved out of home. There was some evidence of disputation between himself and his mother, the latter believing that her son was unable to care for himself or manage his own affairs. Matthew Denton’s house contained a granny flat that Mrs Denton wished to occupy with Scott. Matthew Denton, however, installed a friend (Matthew Kickbush) as a tenant and, a few weeks before his death, the…

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 Regina v Gosling

Details

AGLC: Regina v Gosling [2002] NSWCCA 351
Case: [2002] NSWCCA 351
Decision Date: 29 August 2002

CaseChat Overview and Summary

In Regina v Gosling, the defendant was convicted of murder and appealed against the conviction, arguing that the trial judge had inadequately directed the jury in relation to the defences of intoxication and mental disturbance. The case was heard by the High Court of Australia, which had to consider whether the trial judge's directions to the jury were sufficient to ensure that they properly considered the defences raised by the defendant. The central issue in the appeal was whether the trial judge's directions to the jury had adequately addressed the possibility that the defendant was suffering from intoxication and mental disturbance at the time of the offence, and whether there was a risk that the jury only considered the intoxication defence, without properly considering the mental disturbance defence.

The High Court held that the trial judge's directions to the jury were adequate, and that there was no risk that the jury had only considered the intoxication defence. The Court found that the trial judge had properly directed the jury to consider both intoxication and mental disturbance, and that the jury had been properly instructed to consider whether the defendant was suffering from either or both of these conditions at the time of the offence. The Court also found that the jury had been properly directed to consider the effect of any intoxication or mental disturbance on the defendant's ability to form the necessary intent for murder, and that the trial judge's directions had adequately addressed the defences raised by the defendant.

Given that the Court found that the trial judge's directions to the jury were adequate, and that there was no risk that the jury had only considered the intoxication defence, the appeal was dismissed. The High Court held that the trial judge's directions to the jury were sufficient to ensure that the jury properly considered the defences raised by the defendant, and that there was no miscarriage of justice in the conviction. Therefore, the defendant's appeal against his conviction was dismissed, and the original conviction for murder was upheld.

Orders