Gilham v R [2012] NSWCCA 131

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gilham v R [2012] NSWCCA 131 Hearing dates: 28, 30 November 2011, 1 December 2011 Decision date: 25 June 2012 Before: The Court at [1] McClellan CJ at CL at [647] Fullerton J at [662] Garling J at [677] Decision: 1. Appeal upheld. 2. Convictions quashed. 3. Verdicts of acquittal entered on both counts Catchwords: CRIMINAL LAW - appeal - conviction - double jeopardy - incontrovertibility of verdict - whether conviction of applicant for murder of his parents controverted applicant's acquittal for murder of his brother - whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal - whether trial judge failed to instruct jury to give applicant "full benefit" of earlier acquittal - whether trial judge erred by not staying proceedings - rule against double jeopardy not infringed - trial judge's directions denied applicant full benefit of earlier acquittal.

CRIMINAL LAW - appeal - conviction - expert evidence - admissibility - relevance - prejudicial effect - whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant - whether probative value of evidence outweighed by prejudicial effect - probative value outweighed by prejudicial effect - evidence ought not to have been admitted - whether expert opinion evidence on similarity of pattern of stab wounds admissible - evidence of similarity admissible - opinion that similarity constituted an underlying pattern inadmissible - Crown Prosecutor's reliance on pattern of similarity amounted to coincidence reasoning - evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 - whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice - failure to call witness caused trial to miscarry - whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence - whether probative value of evidence outweighed by prejudicial effect - evidence admissible as expert opinion evidence - probative value outweighed prejudicial effect.