Gall v R; Gall v R [2015] NSWCCA 69

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gall v R; Gall v R [2015] NSWCCA 69 Hearing dates: 20 February 2015 Decision date: 20 April 2015 Before: Hoeben CJ at CL at [1] R A Hulme J at [249] Davies J at [257] Decision: The orders in relation to Kevin Gall are as follows:

(1)In relation to the conviction appeal, grant leave to appeal in respect of grounds 1, 2 and 3 but dismiss the appeal. (2)In relation to the application for leave to appeal against sentence, grant leave to appeal but dismiss the appeal.

The orders in relation to Bruce Gall are as follows:

(1)In relation to the conviction appeal, grant leave to appeal but dismiss the appeal. (2)In relation to the application for leave to appeal against sentence, grant leave to appeal but dismiss the appeal. Catchwords: CRIMINAL LAW – CONVICTION APPEAL – offence of murder – whether consciousness of guilt direction should have been given – whether direction should have been given concerning fact that co-offender did not give evidence – whether verdict was unreasonable. No occasion for consciousness of guilt direction – direction concerning fact that co-accused did not give evidence not necessary – conviction appeal dismissed – SENTENCE APPEAL – whether sentence imposed manifestly excessive – findings of fact open to sentencing judge – no error in assessment of objective seriousness – appropriate matters taken into account by way of mitigation – no error in accumulation of murder sentence and discharge of firearm sentence – CONVICTION APPEAL BY CO-OFFENDER – accessory after the fact to murder – whether direction as to elements of offence correct – error in direction identified – application of proviso – appeal dismissed – SENTENCE APPEAL – offences of accessory after the fact to murder, perverting the course of justice and possessing prohibited weapons – whether findings of fact open – whether offence of possessing a prohibited firearm was part of a planned or organised criminal activity – whether plea of guilty taken into account in sentence for possess a prohibited firearm – whether technical errors necessitated re-sentencing – whether error in cumulation of sentences – appeal against sentence dismissed. Legislation Cited: Criminal Law Act 1967 (UK) Cases Cited: Budrodeen v R [2014] NSWCCA 33 Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 Cross v Regina(No 2) [2012] NSWCCA 234 Festa v R [2001] HCA 72; 208 CLR 593 Kaminic v R [2014] NSWCCA 116 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 House v R [1936] HCA 40; 55 CLR 499 McGeown v R [2014] NSWCCA 314 Nguyen v R [2013] HCA 32; 298 ALR 649 Mulato v Regina [2006] NSWCCA 282 R v Cook [2004] NSWCCA 52 R v DF [2005] NSWCCA 259 R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558 R v Hawken (1986) 27 A Crim R 32 R v Henare [2005] NSWCCA 366 R v Heyde (1990) 20 NSWLR 234 R v Kevin Gall; R v Bruce Gall [No 4] [2012] NSWSC 1355 R v Kevin Gall; R v Bruce Gall (No 6) [2012] NSWSC 1432 R v Lolesio [2014] NSWCCA 219 R v Nguyen [2010] HCA 38; 242 CLR 491 R v Simpson [2001] NSWCCA 297 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Stone [1981] VR 737 R v Tevendale [1955] VLR 95; ALR 260 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wilson [2005] NSWCCA 219 Sabongi v R [2015] NSWCCA 25 The Queen v Richards (1877) 2 QBD 311 Winning v The Queen [2003] WASCA 245 Texts Cited: Brett Fisse, Howard's Criminal Law, (5th ed, 1990, The Law Book Company Limited) NSW Law Reform Commission, Complicity, Report 129 (December 2010) Peter Gillies, Criminal Law, (4th ed 1997, LBC Information Services) Peter Gillies, The Law of Criminal Complicity, (1980, The Law Book Company Limited) Category: Principal judgment Parties: Kevin Anthony Gall – Appellant Bruce Edward Gall – Appellant Regina – Respondent Crown Representation: Counsel: D Dalton SC – Appellant Kevin Anthony Gall T Game SC/D Barrow – Appellant Bruce Edward Gall W Abraham QC/G O'Rourke – Respondent Crown