GILHAM v REGINA [2007] NSWCCA 323

Reported Decision: 178 A Crim R 72

New South Wales Court of Criminal Appeal

CITATION: GILHAM v REGINA [2007] NSWCCA 323 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 August 2007

JUDGMENT DATE: 26 November 2007

JUDGMENT OF: Spigelman CJ at 1; McClellan CJ at CL at 135; Hulme J at 224; Hidden J at 274; Latham J at 275

DECISION: 1. Leave to appeal on Grounds 1 and 2 granted ; 2. Leave to appeal otherwise refused ; 3. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Pleas at bar not available – Principle of Incontrovertibility – "manifestly inconsistent" test – Extension of principle of incontrovertibility to convictions – Whether prosecution inconsistent with previous acquittal and conviction - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – s 394A of the Crimes Act 1900 – Guilty plea to manslaughter results in acquittal for murder – Whether an acquittal also indicates the accused was in jeopardy - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Point of commencement of trial – Whether arraignment or empanelment of jury point of commencement of trial - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Absence of acquittal on the merits – Whether evidence was capable of supporting conviction or disproving provocation case - CRIMINAL LAW - General matters - Criminal liability and capacity – Double Jeopardy – Whether findings by sentencing judge subject to incontrovertibility principle - CRIMINAL LAW – Jurisdiction, Practice and Procedure – Stay of Proceedings – Abuse of Process – Whether subsequent prosecution was an abuse of process given prior acquittal and conviction – Where the accused found to be in jeopardy but no abuse of process found