New South Wales Supreme Court CITATION : R v Jeffrey GILHAM [2007] NSWSC 1396 HEARING DATE(S) : 30/11/2007 JUDGMENT OF : Howie J at 1 EX TEMPORE JUDGMENT DATE : 30 November 2007 DECISION : Application for a stay of the trial withdrawn - no determination made to stay the trial. CATCHWORDS : CRIMINAL LAW - Practice and Procedure - Application for special leave to High Court - whether trial should be stayed. LEGISLATION CITED : Criminal Appeal Act 1912 - s 5F PARTIES : Regina v Jeffrey Gilham FILE NUMBER(S) : SC 2006/2766001 COUNSEL : M Tedeschi QC/K Shead - Crown P Boulten SC/P D Lange - Accused SOLICITORS : S Kavanagh - Crown S O'Connor - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J FRIDAY 30 NOVEMBER 2007 2006/2766001 R v Jeffrey GILHAM JUDGMENT 1 HIS HONOUR: This is an application for a stay of the trial of the accused on two counts of murder. The trial is listed to commence on the first day of the second week of the new term next year, that is, 4 February 2008. The matter has quite an extraordinary history that is set out in the judgment that I delivered refusing a permanent stay to the applicant on 21 March this year. 2 As a result of my refusing to grant a permanent stay the applicant appealed under s 5F of the Criminal Appeal Act to the Court of Criminal Appeal. The matter was before that court on 21 August. Judgment was delivered on 26 November 2007. The Court had been specially constituted by the five justices, including the Chief Justice and the Chief Judge of the Common Law Division, such was the significance of the case by reason of the matters that were raised on behalf of the applicant both before me and before that court. 3 Briefly, the Crown, by ex-officio indictment, filed in this court charges the applicant with the murder of his two parents as a result of an incident arising in August 1993 in which his parents and brother were killed. The history of the matter very briefly is that the applicant was charged only with the murder of his brother. The police have never charged the applicant with the murder of his parents. Ultimately on 5 April 1995 the applicant pleaded guilty to a charge of manslaughter of his brother and the Crown accepted that plea in full discharge of the indictment alleging that he murdered his brother. He was dealt with in the Supreme Court by Abadee J for that offence and was placed on a good behaviour bond. 4 There was then a hiatus in the further prosecution of any person as a result of the incidents that left dead the applicant's parents and brother. Although there were a number of occasions when the matter was considered either by the police or by the Director of Public Prosecutions, including the applicant being charged with the murder of his parents by his uncle. 5 On the application before me, the applicant sought a stay on what were effectively three bases. The first was that the further prosecution of the applicant in relation to incidents arising from the death of his parents was an abuse of process in that it was oppressive in light of the history of the matter, in particular the fact that the accused had been dealt with for the manslaughter of his brother leaving him with a reasonable belief that he was no longer in jeopardy in relation to any criminal charge arising from the death of his parents. 6 The second matter relied upon was that any trial of the accused would necessarily be unfair by reason of the fact that the police had lost most, if not all, of the exhibits after the prosecution of the applicant for the murder of his brother, depriving the applicant of the opportunity to have further tests and to obtain further scientific evidence in relation to the exhibits which might indicate that he was not guilty of the murder of his parents. 7 The third, and perhaps most difficult, matter was a contention that the prosecution was, in effect, an abuse of process because of the application of the principles of double jeopardy in light of the fact that the applicant had been charged with and dealt with in the court for the manslaughter of his brother. In effect, the argument was that the conviction of manslaughter resulted in an acquittal of his brother's murder and that an allegation that he had murdered his parents was inconsistent with that acquittal. 8 Before me the applicant was not successful on any argument and therefore the stay was refused. Before the Court of Criminal Appeal leave to appeal was refused in respect of the first two bases for the stay, that is, on the basis that the further prosecution was oppressive or that any further trial would necessarily be unfair. However, on the first two grounds, which relate to the issue of double jeopardy and the fact that the applicant had been acquitted of the murder of his brother, leave was granted even though ultimately the appeal was dismissed. It is in respect of that decision that the applicant now seeks special leave to appeal to the High Court. 9 One of the difficulties for the applicant is that the judgment of the Court of Criminal Appeal was not delivered until 26 November 2007, that is about three weeks before the end of term, and the trial is listed to commence in the second week of the new term. This puts the applicant in a difficult position in pursuing either a special leave application before the High Court or even in seeking expedition. 10 The Crown has submitted that I should not entertain any application for a stay and ought not to vacate the trial date on the basis that there is a line of authority in the High Court which indicates that it is only in exceptional circumstances that the High Court will entertain a special leave application from an interlocutory judgment. This being an interlocutory judgment, albeit of a bench of five in the Court of Criminal Appeal, the Crown contends that the applicant has little, or no, prospect of obtaining special leave from the High Court and therefore any stay will be futile. 11 It seems to me that there is merit in the Crown's argument simply on the basis of previous decisions of the High Court concerned with applications for special leave from interlocutory judgments, and in particular cases in the High Court concerning stay applications based upon the prospect of obtaining special leave. 12 It must be said that the matter is an unusual one in its factual basis. On one view the decision of this Court, both before me and before the Court of Criminal Appeal, was based upon the application of principles obtained from a number of High Court judgments upon a consideration of the principles of double jeopardy and stays of indictment generally and was merely an application of those principles to the particular and peculiar facts of this case. However, it is a highly unusual case that extends the boundaries of double jeopardy to probably their furthest limit and is one that has been of such significance that it was thought appropriate to sit a Bench of five justices in the Court of Criminal Appeal. 13 Without dealing completely with the application for the stay, it became apparent that the present timetable of the trial might not, in effect, deprive the applicant of an opportunity to approach the High Court, firstly, for expedition, and secondly and perhaps more importantly, to obtain a stay of the trial based upon a High Court Judge's assessment of the likelihood of special leave being granted in this particular case. The current timetable is that there would be a week of pre-trial determinations before any jury would be empanelled to hear the trial of the accused. The present information placed before the Court is that there are two days on which special leave applications are being considered in the High Court before 11 February 2008, which is the date on which it is projected that a jury would be empanelled. The first date is on 14 December 2007 and the applicant probably, realistically, does not expect to find himself in the special leave applications list for that day. The next special leave day is 8 February 2008. 14 I indicated during the course of argument that I would undertake, if it were necessary to do so, to the applicant, and to any other court, that I would not empanel a jury before 11 February 2008. Realistically that is unlikely to occur by reason of the week of pre-trial determinations. The matter has been determined without a stay being sought on the basis that both the applicant and the Crown accept that this court will not empanel a jury before 11 February 2008 on the basis that this will give the applicant an opportunity to seek expedition in the High Court in relation to the special leave application being lodged and, more particularly, to approach a High Court Judge to seek a stay of the trial before 11 February. 15 On that basis the application has been withdrawn and on that basis I have not determined to stay the trial. It should be perfectly clear, however, that no jury would be empanelled before 11 February 2008. If the applicant requires a stay after that time, then in my view the applicant should seek that stay from the High Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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