Gilbert v The Queen [2000] HCA 15

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

WILLIAM LAWRENCE GILBERT APPELLANT

AND

THE QUEEN RESPONDENT

Gilbert v The Queen [2000] HCA 15

23 March 2000

B47/1999

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of Queensland made on 17 February 1998 and in place thereof order that:

(a) the appeal to that Court be allowed;

(b) the conviction be set aside; and

(c) there be a new trial.

On appeal from the Supreme Court of Queensland

Representation:

A J Glynn SC with A J Rafter for the appellant (instructed by Legal Aid Office (Queensland))

M J Byrne QC with C W Heaton for the respondent (instructed by Director of Public Prosecutions (Queensland))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Gilbert v The Queen

Criminal law – Murder – Appeal against conviction – Misdirection by trial judge – Failure to leave manslaughter to jury – Whether jury properly instructed would necessarily have returned verdict of guilty of murder – Whether no substantial miscarriage of justice actually occurred – Whether failure to leave manslaughter to jury constitutes substantial miscarriage of justice where jury's verdict of guilty of murder consistent only with satisfaction of elements of offence of murder.

Criminal Code (Q), ss 7(1), 8, 668E(1), 668E(1A).

1. GLEESON CJ AND GUMMOW J. Following a trial in the Supreme Court of Queensland, before Mackenzie J and a jury, the appellant was convicted of murder. He appealed against his conviction[1]. It was common ground in the Court of Appeal of Queensland, and in this Court, that there had been a wrong decision on a question of law, within the meaning of s 668E(1) of the Criminal Code (Q) ("the Code"), and a consequent misdirection of the jury. The question was whether the case was a proper one for the application of s 668E(1A), which provides that, notwithstanding such an error, an appeal may be dismissed if the Court of Appeal considers that no substantial miscarriage of justice has actually occurred. This is commonly referred to as the proviso. By majority, (Davies and McPherson JJA; Pincus JA dissenting), the Court of Appeal answered the question in the affirmative. 2. The erroneous decision on a question of law, and misdirection, concerned the possibility that, on the view of the facts for which the defence contended, the appellant could be found guilty of manslaughter. This was the subject of a question asked by the jury. In conformity with the law as understood in Queensland at the time of the trial[2], the trial judge instructed the jury that there was no such possibility. Later, this Court gave its decision in R v Barlow[3]. It was common ground, in the Court of Appeal and in this Court that, consistently with Barlow, manslaughter should have been left to the jury as a possible verdict. 3. In their joint judgment in Barlow, Brennan CJ, Dawson and Toohey JJ referred to ss 289-291, 293, 300, 302 and 303 of the Code and said[4]: