Gillard v The Queen [2003] HCA 64

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

KEVIN WAYNE GILLARD APPELLANT

AND

THE QUEEN RESPONDENT

Gillard v The Queen [2003] HCA 64

12 November 2003

A200/2002

ORDER

1. Appeal allowed. 2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 21 December 2000 dismissing the appellant's appeal and, in lieu thereof, order that: 3. the appellant's appeal to that Court be allowed; 4. the appellant's convictions be quashed; and 5. there be a new trial.

On appeal from the Supreme Court of South Australia

Representation:

D H Peek QC with J A Richards for the appellant (instructed by Lipson Street Chambers)

S A Millsteed QC with A P Kimber for the respondent (instructed by Director of Public Prosecutions (South Australia))

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

CATCHWORDS

Gillard v The Queen

Criminal law – Murder – Joint criminal enterprise – 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 failure to leave manslaughter to jury occasioned substantial miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA), s 353(1).

1. GLEESON CJ AND CALLINAN J. The appellant, and a co-accused Gerald David Preston, were convicted of the murder of two men and the attempted murder of another. The appellant contends that the trial judge failed to leave manslaughter to the jury as a possible verdict in relation to each of the two men who were killed, and that this constituted a wrong decision on a question of law. That contention (which was rejected by the Full Court of the Supreme Court of South Australia[1]) is supported by the respondent. The difference between the parties to the appeal is whether the case is a proper one for the application of the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The principal questions for decision are whether, on the facts, there was a viable case of manslaughter to be left to the jury and, as it was put in Gilbert v The Queen[2], whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder. Those two questions address the problem by reference to different stages of the proceeding, but they turn upon substantially the same considerations of law and fact. The trial judge left the case to the jury as murder (and attempted murder) or nothing. If there was no viable case of manslaughter to be considered, then there was no wrong decision on a question of law. If, on the other hand, there was such a case (as has been contended consistently by the prosecution) then the proviso will apply only if it is clear that a jury, properly instructed, would necessarily have convicted the appellant of murder (and attempted murder). 2. The essential facts may be summarised as follows. It is convenient (save for the purpose of dealing with one argument in relation to the proviso) to concentrate attention upon one only of the victims, Les Knowles. It is also convenient first to explain the case against Preston, who did the killing. 3. The prosecution case, accepted by the jury, was that Preston, a man of well-known violent propensities, was hired to kill Knowles. There was evidence that Knowles was the subject of police investigations in relation to drug dealing. He conducted a car repair workshop. There was evidence that he kept large amounts of cash there. The prosecution alleged that a man named Tognolini, and/or a group named the Hells Angels, wanted Knowles killed, and agreed to pay Preston to kill him. The appellant had a long association with Preston, but in a subservient role. The prosecutor put to Preston in cross-examination that the appellant was his "errand boy". There was evidence that the appellant had a history of psychological problems and alcoholism. Preston told the police that the appellant was "thick and simple". 4. At Preston's request, the appellant stole a van, and used it to drive Preston to the repair shop. Also at Preston's request, shortly before the pair arrived at the repair shop, the appellant made a telephone call to the shop to check that Knowles was there. Both men were disguised. Preston was armed with a loaded gun. He walked from the van into the repair shop, shot and killed Knowles and another man, and fired at a third. He then rejoined the appellant in the van and they drove off together. The appellant later destroyed the van. 5. The case against Preston was straightforward. So also was the case against the appellant, as it was left to the jury. The prosecution alleged that the appellant was a party to the plan to kill Knowles and that he was well aware of the intention with which Preston acted. In support of that case, the prosecution invited the jury to accept that the appellant must have known that Preston was armed with a loaded gun. There was evidence as to the process involved in loading and cocking the weapon, intended to show that it was very unlikely that Preston, who began shooting almost as soon as he entered the repair shop, could have put himself in a position to do that without the appellant's knowledge. 6. The appellant, who gave no evidence at the trial, made admissions to the police that he had stolen the van, driven Preston to and from the repair shop, made the telephone call to establish that Knowles was there, worn a hood to disguise his appearance, and later destroyed the van. He asserted, however, that he had no knowledge of Preston's intention to kill Knowles, and that he thought that what was involved was a robbery. He denied knowing that Preston was armed with a gun.