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 Solicitors: AHA Taylor Lawyers – Appellant Kevin Anthony Gall Alamein & CO Lawyers – Appellant Bruce Edward Gall Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2010/3808382010/380935 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Kevin Gall; R v Bruce Gall (No 6) [2012] NSWSC 1432 Date of Decision: 23/11/2012 Before: Adamson J File Number(s): 2010/380838 2010/380935 Judgment 1. HOEBEN CJ at CL: Charges and sentences The applicant Kevin Gall was charged with the following offences: Count 1 – On 16 April 2010 he did murder Neil Leopold Green contrary to s18 of the Crimes Act 1900 (the Act). Count 3 – On 16 April 2010 he did with Bruce Gall shoot at Michael Fox with intent to murder contrary to s29 of the Act. Count 4 – On 16 April 2010 he did with Bruce Gall discharge a firearm with intent to cause grievous bodily harm to Michael Fox contrary to s33A(1)(a) of the Act. Counts 5, 6, 7 and 8 – On 6 May 2010 he possessed a prohibited pistol, firearm and weapons contrary to s7(1) of the Firearms Act 1996 and 7(1) of the Weapons Prohibition Act 1998. Count 9 – On 19 June 2010 he influenced Martin Lapich to give a false account to the police and to destroy evidence with intent to pervert the course of justice contrary to s319 of the Act. Count 10 – On 16 November 2010 he did with Bruce Gall possess a prohibited firearm contrary to s7(1) of the Firearms Act 1996. 1. When Kevin Gall was arraigned before Justice Adamson on 27 August 2010 he pleaded not guilty to counts 1, 3, 4 and 10 and guilty to counts 5, 6, 7, 8 and 9. 2. His father, the applicant Bruce Gall, was charged with the following offences: Count 2 – Knowing that Kevin Gall had committed the said murder on 16 April 2010 he did receive, harbour, maintain and assist Kevin Gall contrary to s349(1) of the Act. Count 3 – On 16 April 2010 with Kevin Gall he did shoot at Michael Fox with intent to murder contrary to s29 of the Act. Count 4 – On 16 April 2010 with Kevin Gall he did discharge a firearm with intent to cause grievous bodily harm to Michael Fox contrary to s33A(1)(a) of the Act. Count 9 – On 19 June 2010 he influenced Martin Lapich to give a false account to the police with intent to pervert the course of justice contrary to s319 of the Act. Count 10 – On 16 November 2010 he did with Kevin Gall possess a prohibited firearm contrary to s7(1) of the Firearms Act 1996. 1. When Bruce Gall was arraigned before Justice Adamson on 27 August 2010 he pleaded not guilty to counts 2, 3 and 4 and guilty to counts 9 and 10. 2. The applicants were tried jointly. Their trial commenced on 27 August 2012 and the jury retired to consider their verdicts on 12 September 2012. The jury returned with verdicts on 14 September 2012 as follows: Kevin Anthony Gall – Guilty on counts 1 and 4; Not guilty on count 3. Bruce Gall – Guilty on count 2; Not guilty on counts 3 and 4. 1. The applicants were sentenced on 23 November 2012. Kevin Gall received a total sentence of imprisonment with a non-parole period of 24 years commencing 16 November 2010 with a balance of term of 9 years. On the same day the applicant, Bruce Gall, was sentenced to imprisonment with a non-parole period of 4 years and 6 months with a balance of term of 1 year and 6 months. Both applicants have appealed against conviction and sentence. Kevin Gall – Conviction Appeal 1. Kevin Gall relies upon the following grounds of appeal against his conviction: Ground 1 – Her Honour erred in failing to direct the jury regarding the appellant's post offence conduct in the terms of consciousness of guilt, reasoning. Ground 2 – Her Honour erred in failing to direct the jury that they could not use the fact his father and co-accused, Bruce Gall, did not give evidence against the appellant. Ground 3 – In all the circumstances the murder verdict was unreasonable and cannot be supported having regard to the evidence. CROWN AND DEFENCE CASES 1. It was the Crown case that in early 2010 Kevin Gall was in possession of some items belonging to Neil Green (the deceased). Several attempts by the deceased and others on his behalf to collect these items had been unsuccessful. On 16 April 2010 the deceased and Michael Fox went to industrial premises at Girraween owned by Bruce Gall and occupied by Kevin Gall in a further attempt to retrieve the items. They were unarmed. Kevin Gall, who was not at the premises when they arrived, approached the back fence unannounced and fatally shot the deceased. He then fired at Mr Fox with intent to murder him as he made his escape. 2. Kevin Gall's case was that he operated a business at premises at Wiltona Place, Girraween which premises were owned by his father. He and the deceased had been friends but they had a falling out in 2009. Before his death, the deceased had been pressing him to sign a document which would assist the deceased in overcoming a drug supply charge which he was facing. Kevin Gall was unwilling to do so. On 16 April 2010 he learned that the deceased and another man were looking for him at the Girraween premises. He armed himself and went to those premises because he was worried about the safety of his father and his own safety. When he arrived at the premises, he shot the deceased in order to protect his father who was running from the deceased and because he believed that the deceased and the other man were carrying guns. Factual background The Relationship with the Deceased 1. Kevin Gall gave evidence that he met the deceased in 2004 or 2005 through a mutual friend, Peter Van Straalan. They shared a common interest in motor bikes and it was expected that he could use his skills as a machinist to make parts for bikes. Until they fell out, the deceased was a regular visitor to Wiltona Place. During that time the deceased brought persons to Wiltona Place so that Kevin Gall could do work on their bikes and he and the deceased socialised together. He knew that the deceased was a member of the Nomads Motorcycle Club. 2. On an occasion in 2006, the deceased brought a pistol to him which he repaired and test fired into a vacant allotment next door. Later the deceased asked him to increase the capacity of certain machine pistols but he was unable to do so. Kevin Gall said that the deceased asked him to hold a machine pistol, along with ammunition, a silencer and a bullet-proof vest, which he did. 3. There was a dispute as to the cause of the falling out between the applicant and the deceased. 4. An important Crown witness was Michael Fox, the person who accompanied the deceased to Wiltona Place. Mr Fox said it was his understanding that the friendship had soured over some drug charges. He understood that Kevin Gall and the deceased had been partying with prostitutes and others in a hotel room and that when they left the hotel, police had pulled the car over and found drugs in the boot. The deceased, who was driving, was charged with possession of the drugs but he maintained that they were not his. 5. It was also Mr Fox's understanding that Kevin Gall had some "stuff" that the deceased said belonged to him but which he had refused to return. Mr Fox offered to go to the Girraween premises to see what he could do to obtain the return of the "stuff". He said that he did not know what the "stuff" was and did not want to know. 6. There was police evidence that in April 2008 the deceased had been stopped while driving a car with Kevin Gall as his passenger and that various prohibited items had been found in the car including drugs. As a result, the deceased was charged with a number of offences including the possession of prohibited drugs but no charges had been brought against Kevin Gall. 7. Mr Jones, who was a friend of the deceased, was aware of the falling out between the deceased and Kevin Gall. It was Mr Jones's understanding that Kevin Gall was to sign a statement as a result of which the deceased expected that the drug charges against him would be dropped. Mr Jones also knew that the deceased considered that Kevin Gall had property of his that he wanted to retrieve. Although he had some suspicions about the property, he did not know precisely what that property was. 8. There was evidence from Mr Lapich that some time in January or February 2010 he spoke to the deceased who asked him whether he had seen Kevin Gall. The deceased said "He has something of mine. I want it back. Tell him to ring me". A couple of weeks later, Mr Lapich spoke to Kevin Gall at Wiltona Place and said "Neil wants you to ring him" to which he said "I don't want to talk to him". 9. Kevin Gall's evidence was somewhat different. He said that some months before 29 March 2010 he met with the deceased and two persons, who were people associated with the Nomads. They told him that they wanted him to swear an affidavit, which would help the deceased. They did not tell him what was going to be in the affidavit. They wanted him to go to a solicitor's office and sign it. Kevin Gall said that he did not go. He was adamant that he was not going to "take the wrap" for the deceased's drugs. 10. The first time Mr Fox went to the Girraween premises, Kevin Gall was not there but Bruce was. Mr Fox said that he asked Bruce to get the "stuff" and then he would pick it up from him. Bruce said that he did not know anything about it. Mr Fox left his business card in the letterbox. A few days later, Mr Fox rang the home phone number at the Girraween premises. Bruce answered and said that the boys said to tell him "to get fucked". The reference to "the boys" was to Kevin Gall and Troy Ryan. Events of 16 April 2010 1. The following is based upon the evidence of Mr Fox as to what happened on that day. At about lunchtime on 16 April 2010 he drove to the deceased's home in Westmead in his blue Ford Laser. He asked the deceased if he was "carrying", meaning armed, and the deceased said that he was not. He and the deceased drove to Wiltona Place. He left the keys in the ignition and had his wallet, passport and personal effects in the car but had brought no weapons. 2. Only Bruce Gall was present. They first saw him standing in the driveway. The deceased told him to get the boys on the phone and to tell them to come over. Mr Fox could tell that Bruce was scared. He told Bruce that they were not armed and pulled up his shirt to show him. The deceased asked Bruce if he had any guns lying around and he said "no". They took a look around the workshop but they did not see anything. 3. Bruce asked what the property was that he wanted returned. The deceased said it was "two and a half". When Bruce wanted that clarified, the deceased said "two and a half million" and he mentioned a couple of firearms. Mr Fox said there was "no way in the world" that he knew that they were there for an amount like that. 4. Bruce went inside and rang Kevin Gall. He told them that he had spoken to Kevin and that he was coming. Mr Lapich was in the office when they arrived. He said that he wanted to go to a nearby workshop and the deceased offered to drive him there. Mr Fox waited with Bruce at the premises. After the deceased returned they waited another 10 minutes. The deceased said "they might come back like this" and made a shooting action with his hand. At that point Mr Fox realised that there was more to what was going on and he asked Bruce where he kept his guns. 5. Mr Fox gave the following evidence as to what next happened: "Q. What did Bruce say? A. He said he didn't have any. I said, "Yeah, right." I said, "I bet you keep one beside your bed, you old prick," and I started walking up to his back door and at that point Bruce, sort of said, "Don't kick me door in," and I had no intention to kick it and I just started walking towards the shed and I thought he was going to get the keys and he broke into a trot and Neil started, sort of, "Where the fuck are you going?" And I started down the same sort of direction. Once he started running, I thought he was going to lock himself in the office, or get a gun, and that's when the shooter came over the fence and shot Neil. Q. That's when the accused came over the fence and shot Neil? A. That's correct. Q. How far behind Neil were you? A. Probably about four to six feet. Q. Did you see where the bullets struck Neil? A. I didn't see where the bullets struck him, but he was running face on to the direction of fire. Q. So what happened when he was shot? A. There were four to six shots and he went down after the first and the shoots kept coming. Q. Where was the shooter positioned? A. He was over a fence; on the other side of a fence; a divided fence with a neighbouring block. Q. Did you see the shooter? A. The top of his head and his arms and the barrel of the weapon. Q. Did you recognise him? A. No. Q. Did you recognise the type of weapon he had? A. Not at that stage, but when I got a closer look at it, when the dickhead run out of rounds, I'm trained in the use of firearms, and it looked to me like Baretta or Browning, something similar, with a slide action. Q. What was the colour of the weapon? A. It was a poorly maintained gun barrel grey. Q. So if we could take it back a bit, you saw Neil struck and fall. You saw the shooter. You saw the gun. But you could not see who the shooter was at that stage? A. Yeah, by the time I actually looked in that direction, the gun trained on me. Q. What did you do then? A. I ran out of the line of fire. Probably three shots were fired in my direction. I wasn't looking at the shooter at that stage, just where I was going. I ran down to the corner of the block. I was going straight over the fence, but being sort of, trained I thought I would try to talk my way out of it, so I turned and fronted on to that direction. As he came around the corner, I see what he was shooting for, or armed, and if he fired another shot at me, which forced me down on the ground behind the trailer. He kept on running down and by that stage he was standing over me with the weapon, pointing at me, screaming and shouting at me to get down, hands behind my head, and I sort of lost a bit of self control, I guess, because I was half complying and half not complying, and having been trained in conduct after capture Q. So he was saying, "Get down, hands behind your head"? A. Yeah, "Get on down," which I wasn't doing. I was staying on me feet and crashing down as though I was going to comply. My hands were behind my head. At that point I realised the slide on the weapon was to the rear and I noticed the slide was to the rear, which indicated to me that he was out of ammunition. At first I was, you know well, you work in split seconds. At first I thought I would attack him, but his old man was around the corner and I looked in his direction and he had another weapon in his hand and he gave me another option and I didn't see them and at that point I jumped up and over the fence and the shooter was shooting out, "Shoot him, shoot him," and I had another three shots at me and I got around the corner. Q. You mentioned that by that time his old man ran around the corner? A. Yeah." (T.39.7 – 40.30) 1. Mr Fox said that he was next to a 6 – 8 foot high metal fence. He managed to get over the fence and went down 15 - 20 feet on the other side, got off the ground and ran for his life. There were three more shots as he ran and he felt gravel bouncing off the back of his legs. He cut his hand and arm when he went over the fence. Mr Fox ran to Portia Road, spoke to some people who let him use a phone to call a taxi and from there went to a friend's workshop in Rouse Hill. 2. Mr Fox did not inform the police about what had happened. He hoped the deceased had not been killed and had been dumped at a hospital or maybe escaped. He spent the next few days trying to locate the deceased. He went back to the Girraween premises late that night to try to recover his car but it was nowhere to be seen. Neither he nor the deceased made any threats to Bruce or Kevin that day. 3. When cross-examined Mr Fox maintained that he did not know what the "stuff" was and said that as long as it was not drugs he did not care. He denied that he was there to lean on Kevin Gall to get him to sign a statement. He had never spoken to Bruce or Kevin Gall about signing a statement. He had only heard about the deceased's drug charges in general conversation from others, not from the deceased. 4. When the deceased said "two and a half million" that day, he realised that the matter was a lot more serious than he first thought. He said that the deceased had suffered a head injury and left a lot of things out that he [Fox] should have known that day. The deceased had not told him about the gravity of what they were there for. The deceased had not told him that other persons had previously gone to Wiltona Place to speak to Kevin Gall. 5. Just before the deceased was shot, Mr Fox walked to the back of the building but the door was locked. He was coming back when he saw Bruce running towards the shed with the deceased running after him. "Yeah the old man was probably 4 or 6 feet in front of Neil. He started running towards the shed and then he broke into a stride and I don't know what frame of mind Neil was in but I thought he was going for a gun or whatever or going to lock himself in his office or something like that but he headed in that direction and then I heard gunshots that's right." (T.63.25) Mr Fox did not hear Bruce Gall say anything to the effect that "he had guns". 1. Mr Fox thought it was likely that the deceased was dead or seriously injured. He did not call the police because if it turned out to be two and a half million dollars there were a lot more parameters to the situation that he did not know about. He did not know how the bike clubs dealt with their affairs and chose to stay out of it. He strongly disagreed that Bruce was not holding a gun. He refused to identify whom he first told about the shooting and refused to answer the proposition it was somebody from the Nomads. He did not make a statement until 9 November 2010. Even then he did not want to make a statement and it was not given willingly. He was under extreme duress from the Crime Commission to make the statement. He did not willingly provide the police with information because he was not privy to all the laws, rules and regulations of the bike club. He knew that the deceased would not have spoken to the police, so he just kept his mouth shut. 2. Mr Fox disagreed that he went to Wiltona Place as "hired muscle". He said that if the deceased had wanted to use muscle, he would have used the Nomads who were a lot more intimidating than he was. He denied that he had a gun that day. He denied that Bruce called out "Look out, he's got a gun". He estimated that it took between 20-30 seconds from the first shot being fired to the last shot. He denied that Kevin Gall yelled out to him to get on the ground before firing at him. 3. Kevin Gall's evidence as to what happened that day was different. He agreed that in 2009 he was travelling in a car driven by the deceased when they were stopped by the police. They had been partying at a nightclub and afterwards stayed the night at a hotel in the city. It was the next day that they were pulled over by the police for speeding. He had no idea what was in the car. When the police searched the car, he and the deceased were taken to the station and the deceased was charged. He was never made aware that the deceased had been charged with a "supply drugs" offence. After that incident, he and the deceased had less and less contact because he did not like what the deceased was getting into. He retained possession of a machine pistol which the deceased had given him. 4. A few months before the deceased was due in court, he sent him a text message saying "Adrian and Lionel" wanted to see him. Adrian and Lionel were important members of the Nomads bike club. When Adrian and Lionel came to the Girraween premises, they sought to intimidate him and said that they wanted him to sign an affidavit for the deceased "to get him off the court thing". He was supposed to go to a solicitor's office to sign it, but he did not attend. 5. Sometime later, Peter Van Straalen and another man came to his workshop on separate occasions asking for the deceased's belongings and saying that the deceased wanted to see him. Mr Lapich told him that the deceased wanted to speak to him and he said that he did not want to see him. He said that because he did not want to have anything to do with making a statement. When Peter Van Straalen asked for the deceased's belongings, he knew that he meant the machine pistol, the ammunition, silencer and bulletproof vest which he was holding for the deceased. 6. Kevin Gall said: "I didn't want to hand back the weapons to the deceased. I believed he would be angry about me not turning up to the meeting with the solicitor and stuffing the boys around so I just held onto them … I thought, I believed that they could be used against me if I didn't meet their demands." (T.434.40) 1. In early 2010 Bruce told him that Mr Fox had been to the workshop looking for him, that he had put a business card in the letterbox and that he wanted to speak to him. 2. The deceased had once told him about an incident he had involving guns. The deceased said that he was chased by police and that he had taken a shot at someone. On another occasion, Kevin Gall had taken a registered firearm with him to a property where they were using their trail bikes. Both he and the deceased had fired some shots using the firearm. 3. On the morning of 16 April 2010 he was at home when he saw some missed messages from Mr Lapich on his phone. When he read those messages, he immediately booked a taxi and left for the Girraween premises taking with him a .45 pistol. He had been taking that pistol everywhere in a shoulder bag after he missed the meeting with the solicitor to sign the document. He had it with him for protection because the deceased was high up in the Nomads club. He believed that the deceased was capable of violence and that he had connections with people who could do things for him. He had seen the deceased bash an older person on a previous occasion, punching him to the face several times. This was the only time he had seen the deceased engage in violent activity although he had heard that on another occasion, the deceased had gone to someone's house and knocked the person's tooth out. 4. The firearm which the applicant took with him was possibly a FK 45. It was a blackish, semi-automatic firearm with a magazine capacity of 10-12. It had seven rounds in it that day. While he was in the taxi, he received a text message from Mr Lapich which said "Don't come, Neil's here". He was worried about his father being there on his own and he asked if Troy was there to which Mr Lapich responded "No". He did not make, nor receive, any other messages while in the taxi. 5. He got out of the taxi near the Girraween premises, but not at them. He was worried about the Nomads hanging around the workshop. He believed that he would be taken by them or hurt in some way. He received a call from his father who sounded very worried and distressed and said "Neil is here and something very serious is about to happen". Kevin Gall replied "I'll be there soon". 6. He ran down the grass laneway, which ran from where he had left the taxi nearly all the way to the workshop. It was the fastest way he could get to his father. He then jumped a gate and ran across a paddock to the fence near the factory carport. He could not see anything at first and then his father came into view. He was at the corner of the green shed and then Michael Fox appeared with the deceased. Kevin Gall's version of what then happened was as follows: "Q. Did you see if they were armed at that stage? A. I couldn't see from that, from where I was it wasn't that clear. Q. Why wasn't it that clear? A. The fence was in my way, I couldn't really, it has shrubs and stuff all over it, I was looking as best I could. I didn't really want to get discovered either as far as them. Q. Were you looking over the fence or through the fence? A. Over and through, both together. Q. What happened next? A. I seen Michael Fox and Neil Green and my father standing on the corner of where the green shed is and my father looked in complete distress, he didn't look normal, and Michael Fox was screaming at him to get into the house. Q. What, if anything, do you remember being said? A. Michael Fox was saying he wanted to get into the house. My father was saying "No you're not going, you are not going in there". Q. Then what happened? A. I seen Michael Fox leave, he walked to what appeared to be up to the house, like he stormed off, and my father had made a break for it and escaped from Neil Green. Q. What happened at that point in time? A. My father was running from Neil Green towards myself to get away from him and Neil Green was pursuing, him chasing him. Q. Was anything said at this stage? A. This is happening flat out, there was, there was nothing, my father when he was running, when he got closer to myself he screamed out "he's got a gun" and I believe he had a gun and my father ran up the stairs towards the office to get away from him and I, my only choice was to stop Neil Green from hurting my father and I opened fire towards Neil Green. Q. How many shots did you fire? A. Three. Q. Whereabouts were the shots directed? A. Downwards over the top of the fence and downwards. Q. Did the shots hit his body? A. I think so. Q. What did you see as a result of the shots? A. He fell down. Q. How close together were the shots? A. One after the other. Q. At the time you fired the gun did you see at that point in time whether or not Neil was armed or not? A. No. Q. Why was it then that you fired the shots at that point in time? A. I believe Neil Green was armed with a gun. Q. What caused you to have that belief? A. My father had told me that as he was running for his life." (T.443.3 – 444.12) 1. He jumped the fence and chased Mr Fox because he believed he was going to do something else. He tried to stop him from leaving because he did not know what he was planning to do. He said "get on the ground" several times but Mr Fox would not comply. Before he could react, Mr Fox had jumped over the fence. He fired two shots into the air but Mr Fox did not stop. 2. He said: "Q. The incident you just described in terms of Michael Fox being down in the back corner area and you firing the gun do you recall where your father was at that time? A. I believe he was coming down from the office. Q. Do you recall where your father was when you fired the gun at the fence line? A. Not exactly. Q. Did you see whether your father had a weapon at this stage? A. I didn't see any weapon. Q. Did your father have a weapon? A. No. Q. What happened then after Michael Fox disappeared? A. I was in a panic state of mind, I didn't know what to think, I just thought there would be hundreds of Nomads about to turn up so I just grabbed Neil, picked him up and put him in the white van that was at work. Q. What did you do with him in the van? A. I just took off then buried him out in the bush." (T.445.21 - .43) 1. The evidence of Mr Jones and Mr Lapich confirmed that at about 1pm the deceased used Mr Fox's blue Ford Laser to drop Mr Lapich off at P & L Cycles. Mr Jones worked there as a motorbike mechanic. After the deceased had left P & L Cycles, Mr Lapich telephoned Kevin Gall and advised that the deceased was at the Girraween premises and was "with a big guy". 2. There was evidence from persons who worked and lived near the Girraween premises as to what they heard and saw. 3. Ms Schensher was working on her computer in an upstairs office at Wiltona Place next to the Gall premises in April 2010 when she heard yelling and about four or five loud bangs. They sounded like gunshots. She heard a male voice yelling something like "get down on the ground" then she heard the gunshots or bangs. 4. Ms Schensher went to the window and looked in the direction of the Gall premises because that was where the noise was coming from. She knew Bruce Gall as someone she would wave and say hello to. She said: "A. Yeah, with the yelling going on I couldn't see anything but then I went to the window. I did see a young man jump over the fence, and next to Bruce's factory place there is like a little vacant block of land and he ran in that direction, over that, and then, not long after that I saw another man come to the fence, the same fence where the first one had jumped over and he swung a gun over he was holding a gun in his hand with the arm over and was leaning over the fence and shooting in the direction of the first man." (T.117.32) 1. She thought she probably heard two shots. There were a couple of seconds between the man jumping over the fence and the other man coming over. When the man with the gun came to the fence, "he was sort of leaning on it". She was not sure if he was standing on something. Her view of the man became obscured by a storage unit which was located at the back of the premises. She agreed that at the time she heard the shots being fired, she could not see the man who was running away. She saw that the shots were being fired in the direction she had seen the man heading before he disappeared from view. 2. Victor Gilbert was Ms Schensher's boss. He was on the ground floor of the business premises when on 16 April 2010 he heard three shots. At that time he was on the phone to Terry Banders who was in Western Australia. Mr Banders thought that he heard three or four shots over the phone close together. Mr Gilbert thought the sound of the shots was coming from the Galls' premises. Mr Gilbert looked in the direction of where the shots came from. He saw a man jump over the fence and he saw Kevin Gall on the fence holding a gun and firing shots at the man who jumped the fence. Once the man had jumped the fence, Mr Gilbert could no longer see him because he [Mr Gilbert] was at ground level. 3. Mr Gilbert obtained Bruce Gall's phone number from another employee and rang him. His evidence was: "Q. Did you make a telephone call to someone? A. Oh, sorry yes I rang up, I spoke, I actually had Bruce's number so, I had an employee up the shop at the time, I asked him what Bruce's number was and he gave me the number and I rang up Bruce. Q. What did you say to Bruce? A. I said what are you guys doing making a cowboy movie or something. Q. What did Bruce say to you if anything? A. He said no, it was a car back firing, and I said are you okay and he said oh, yeah I will talk to you later. Q. Did he ever discuss this matter with you later? A. No." (T.136.46 – 137.9) 1. Mr David Attwood had an inflatable boat business near to the Galls' premises. He knew Bruce Gall as his neighbour and owned a twenty foot container which was kept on the premises. On 16 April 2010, early in the morning, he heard loud shouting from a single male voice. He then heard more than one gunshot. He had been in the Army and Navy and was familiar with firearms. The gunshots came from the direction of Bruce's factory. He was concerned for Bruce and he walked out of his factory to see what he could see. 2. As he was walking out, he dialled triple 0 and asked for the police. He stood on some strips of wood and had a clear view over the fence. He turned his phone off because of what he saw. He heard Kevin Gall say "stay there, stay underneath it". Immediately after that, a man "barrel rolled" over the fence and a few seconds later the heads of Kevin and Bruce appeared. The man was moving extremely fast and basically he just got over the top and partially rolled over the fence and he was gone. 3. His evidence was: "Q. What happened then, sir? A. Well, Kevin and Bruce, they appeared at the fence, so I could see their heads clearly. Kevin had a gun in his hand and shot in the direction where the chap had rolled over and was presumably running away. Q. How many shots were fired at that stage? A. Again, more than one, but I don't know the exact number. Q. About how many metres were you from Kevin and Bruce when you saw this? A. Approximately 30 metres, I would say. Q. Was anything obstructing your view? A. No. Q. You say you didn't see where the man went after he got over the fence and presumably landed? A. That's right, yes. Q. Was there anything obstructing your view of him? A. There's another fence - I don't know what you call it, a culvert, a hollow - so if you fell into that area you would be hidden from view. Q. How many metres, or centimetres, were there between Bruce and Kevin? A. They were right next to each other. Q. Did you see the type of gun that Kevin had in his hand? A. It would have been a pistol or a revolver. Q. Did you see the colour of it? A. No. Q. Could you see Bruce Gall's hands? A. No. Q. How much of his body could you see? A. Well, I could clearly see above shoulder height. Q. How much of Kevin Gall's body could you see? A. About the same; from the top of his shoulders. Q. How many of Kevin's arms and hands could you see? A. He was clearly holding the pistol, so you could see his arm, but I couldn't tell you whether he had another arm over the fence or not. Q. What did you do after this happened, sir? A. Well, I suppose I was shell shocked. I went back into the factory and you think; well, what do you do now, do you know what I mean? I did nothing." (T.168.1 - .49) Events following the shooting 1. Kevin Gall gave evidence as to what happened after the shooting. The body of the deceased was on the walkway near the office. He was not moving. The van into which he placed him was a white Mazda with false number plates. He had bought it years earlier and it was unregistered. Mr Fox's car was parked in the back towards the house. He left everything in the car. He had no idea where his father was while he was putting the body of the deceased into the van. He was in a panicked state and was terrified that the Nomads would be around very soon. He was worried for his own safety and that of his father. 2. He drove for four hours to a place called Coolongolook near Forster. He drove off the road onto a track into the bush. He buried the deceased using a shovel from work. On the way back, he pulled the gun apart and threw the pieces out the window. He estimated that he was at the burial site in the bush for about 10 - 12 hours. 3. He later tried his "absolute best" to show police where he had buried the body but could not find the spot. He estimated that he was away from the Girraween premises for somewhere between 18 and 24 hours. 4. He first spoke to Peter Van Straalen two days after the shooting. Peter came around and wanted to know what was happening. He did not tell him anything but asked if he could help out with Mr Fox's car, which was still at the Girraween premises and still had everything in it. Mr Van Straalen suggested getting rid of the car because he was worried about Mr Lapich's DNA being in it. He was worried that Kevin Gall would not get rid of the car properly and wanted to do it himself. 5. There were six CCTV cameras operating at the workshop at Wiltona Place on 16 April 2010. After the shooting, Kevin Gall did not look at the CCTV because there was no need. The CCTV was set up to record only at night time. He was not able to comment on evidence that the CCTV hard drive seized by police had no data recorded on it. He had "no idea" about that. 6. He believed that the fired cartridge cases that the police located at the Girraween premises on 7 May 2010 and 16 November 2010 were those he and the deceased had fired many years earlier when testing the machine pistol, silencer and magazine which were found at the premises. After shooting the deceased, he collected some of the five cartridge cases and squashed them in a vice and threw them in a bin. 7. On 23 April 2010 Kevin Gall's home was firebombed by the Nomads. His girlfriend called the police and they were already there when Kevin Gall came home. He did not tell the police the entire truth about what had happened because the Nomads were involved and he was extremely fearful of them. Thereafter Kevin Gall, his girlfriend and Troy resided at the Girraween workshop. 8. On 6 May 2010 the police searched the Girraween premises and located a black 9mm calibre automatic weapon, a silencer and a magazine holding 11 cartridges. This was the machine pistol which Kevin Gall was holding for the deceased. He was also in possession of a .32 automatic self-loading pistol. He was in possession of those weapons because his house had been firebombed by the Nomads. He was worried about his own safety and that of his father, his girlfriend and Troy. 9. In cross-examination Kevin Gall agreed that he had completely pulled the white van to pieces within a week of disposing of the deceased's body. This was because he had not wrapped the body in anything and there was blood in the back of the van. 10. Kevin Gall realised that he would have to do something about the Ford Laser belonging to Mr Fox. He painted the car white using spray cans, changed the number plates and cut out the VIN and the engine number. He started to modify the car as soon as he got back from burying the deceased's body. He dealt with Mr Fox's car before destroying the van he used to transport the deceased's body. 11. The police subsequently found the Ford Laser and it was common ground at the trial that subsequent to the killing of the deceased, Kevin Gall had tried to disguise that car. 12. He denied having any conversation with his father concerning blood in the carport area. He said "I didn't see any blood there". 13. Ms Schensher went back to the window to see what was happening next door on a number of occasions. After the shooting, she saw Bruce and it looked to her like he was using a hose of some sort and was washing the carport area: "A. Well I couldn't see a hose but I could see him and it looked to me that is what he was doing and I could hear it sounded like water or maybe using a high pressure hose I am not sure." (T.119.15) She saw Bruce and heard a sound which was like what one would hear if someone were hosing down cement. She also saw a white van leave the property. In the van was a driver and the man who was the shooter. She did not know this person. 1. Mr Buhagiar gave evidence that he used the corner of the back shed on the Girraween premises and rented the space from Bruce Gall. He was not at work on Friday, 16 April 2010 but when he returned on Monday, 19 April he notice that an area under the carport next to the office had been cleaned. He spoke to Bruce Gall about it saying: "I just said oh, you done a cleaning job here. He said "yeah to get rid of the oil from the forklift." 1. Mr Edward Clarke worked in security systems and alarm installations. He had known Bruce Gall for many years. In 2009 he installed security cameras for him at the Girraween premises. On Sunday, 18 April 2010 he received a telephone call from Bruce Gall to say three of his cameras were not working. He attended the property next day and found that the power supply for the camera in front of the house had blown. Two cameras in the shed were powered by the same power supply which meant that they had stopped working as well. He did not ask Bruce what had happened but determined that the power supply was not working and replaced it. He denied changing any of the hard drives for the cameras at the premises. (He had been accused of changing the hard drives by the police, an accusation which he denied.) He said that should a hard drive break down, he would send it back to the manufacturer to get changed. 2. In June 2010 Kevin Gall was present at a meeting at Peter Van Straalen's house with Peter, Mr Lapich and Bruce. The conversation was recorded by a police listening device (exhibit AC). Mr Lapich was worried and said "If I messaged you or rang you and said Neil is here they would hold me responsible for his death". Kevin Gall understood that to mean that Adrian and Lionel from the Nomads would hold Mr Lapich responsible for the death of the deceased. Kevin Gall advised Mr Lapich to get rid of his phone. He gave that advice because Mr Lapich was worried and he wanted to ease his mind and provide a solution for him. 3. When he was asked about what he had said to Mr Lapich in Exhibit AC Kevin Gall gave this evidence: "Q. Coming back to where we are now in the listening device, when you are talking about Lapo's phone why didn't you advise Lapo to go to the police? A. Neil's friends and myself, being a mate of Neil's, he always said you never talk to the police. That is just something we all, I don't know, adopted I guess you would call it. Q. At page 15, bottom of page 15, there is a reference to "there is no way that car can show up" you understand that is a reference to Michael Fox's car? A. Yes. Q. Reference to DNA going then over the page from you "KG: It won't". "PV It's not going to turn up". Then you "KG: You never, ever. Dust". That is page 16 of the listening device? A. Correct. Q. What were you trying to convey at that point of time? A. I was concerned for Pete and he was worried about it and he was stressing out about it turning up and getting rid of it and he basically wanted to take care of it. Q. Those words you use at page 16 "Never, ever. Dust" what did you mean by that? A. That I was going to pull it apart. Q. Is that what you did? A. No. Q. Moving forward to page 17. Two thirds down the page is a reference attributed to you "That 'phone where is it?" The next entry is Martin Lapich in there so you were talking about the 'phone to Martin Lapich? A. That is correct. Q. Going over the page you are recorded as saying "Well, I would fuck that off and get a new phone. Say it got damaged. Get rid of it cause if there is anything in it, in anyway that they can get anything from it and download". What were you saying there? A. I was basically telling Lapo just to say it was damaged if the police had asked him about it. He was obviously worried about his 'phone and information for whatever reason that he had on there and I was advising him to get rid of it. Q. Why were you advising him to get rid of it? A. For himself so he wouldn't feel linked to anything I guess. Q. And you accept that entry there is part of the charge of pervert the course of justice that you pleaded guilty to? A. I do yes." (T.465.35 – 466.31) 1. On page 19 of Exhibit AC Bruce Gall made suggestions to Mr Lapich of ways in which he could persuade the police that he had not been at the Girraween premises on 16 April 2010. He suggested that the text messages could have been sent while he was walking from Mr Van Straalen's premises to the station. 2. Page 20 of Exhibit AC set out a discussion between Bruce Gall and Mr Van Straalen, the effect of which was to indicate that Bruce Gall did not believe that the deceased and Mr Fox had any guns, or any other weapons, but rather that they were looking for his guns and that they wanted to search his premises to look for them. 3. Kevin Gall was cross-examined as to the contents of p 32 of Exhibit AC. The following was recorded on the exhibit: "PV: Adrian promised me if there was any trouble he wasn't going to touch the old man and that Kev you know I came and told you that. KG: Yeah you did." When cross-examined as to that exchange, Kevin Gall could not remember it and disagreed that he was not genuinely fearful for his father (T.493.30-.40) 1. In cross-examination Kevin Gall was taken to p 37 of Exhibit AC and the following exchange between him and Mr Van Straalen: "PV Ok, lets square it up. The cars gone Martin. Kev says the cars gone. It's f'ing destroyed. Ok …you in the car. They have checked. They reckon there's no cameras anywhere. No-one saw you get in the car. What about your film things at home. That things destroyed? KG Gone. BG Gone. PV Not just wiped off. KG It's gone, it's not there. The hard drive's gone. BG The whole thing's gone. PV Ok, so their things … The cameras would of seen you in the car, they're gone." 1. Kevin Gall explained that conversation by saying that the CCTV cameras at the Wiltona Place premises only recorded at night via infrared because it was pointless to record during the day. He was unaware that by the time the police seized the hard drive for the CCTV, the hard drive had been removed and a different one had been installed. He had no idea about that and did not know anything about it (T.522). CONVICTION GROUNDS OF APPEAL Ground 1 - Her Honour erred in failing to direct the jury regarding the appellant's post offence conduct in the terms of consciousness of guilt, reasoning. 1. Kevin Gall accepted that no such complaint had been made during the trial and that leave pursuant to r 4 of the Criminal Appeal Act 1912 was required. The applicant submitted that because this error had given rise to a miscarriage of justice, leave should be granted. 2. Kevin Gall submitted that this ground related to the evidence concerning: 1. Disposal of the deceased's body. 2. The removal of the hard drive from the CCTV camera at the crime scene. 3. Destruction of the cartridge cases. 4. The destruction of the van used to transport the body of the deceased. 5. The spray painting of the Ford Laser which Mr Fox drove to the Girraween premises. 1. Kevin Gall reviewed what her Honour had said about each of those matters in her summing up: Disposal of Body "Despite several attempts to locate the body so that it could be exhumed and a post mortem undertaken, the body was never located. Detective Sergeant O'Donohoe gave evidence about the time spent by police and cadaver dogs with handlers to find the body. It was never recovered. One of the consequences of the disposal of the deceased's body and the fact that it was not recovered was that the police were unable to determine the calibre of the weapon used to kill him or the number of shots that had been fired into his body." (SU 218-219) Destruction of cartridge cases "The other, what might be described as evidence that was destroyed or which you might think was destroyed was the fired cartridge cases and you will recall that Mr Kevin Gall said in evidence that he collected some of the fired cartridge cases and squashed them up in a vice in the workshop and threw them in a bin." (SU 227) Destruction of the white van "There was also evidence concerning the white van which Mr Kevin Gall used to transport the body of the deceased. Exhibit AK shows the photograph of the white van which appears to have been the same white van. The accused Mr Kevin Gall's evidence is that he stripped the van into pieces. Detective Sergeant O'Donohoe gave evidence that police have been unable to locate the vehicle which remains outstanding." (SU 228-229) The Ford Laser "As between the Crown and the accused Kevin Gall it is agreed that on 9 July 2010 Kevin Gall drove a Ford Laser to Chifley Street Smithfield and left it in that location. It was the same vehicle that had been driven to Wiltona Place by Michael Fox and Neil Green on Friday 16 April 2010. It was then towed away by Mr Aplin (exhibit S)." (SU 231) "Detective Sgt O'Donohoe gave evidence that the registration plate of the Ford Laser had been removed and a different one substituted." (SU 232) "On 9 August 2010 Mr Craig Sherwood, Crime Scene Officer, conducted an examination of the Ford Laser. The external panels of the car had been spray painted in grey and beige primer. The instrument cluster had been removed. The vehicle identification number had been deliberately cut away. The engine number had been broken away from the engine block. The manufacturer's identification and compliance plates had been removed from the firewall panel." (SU 233) "The Ford Laser was ultimately tested and Michael Fox's DNA found in the vehicle." (SU 234) "Mr Kevin Gall admitted in cross-examination that he had cut the VIN out of the Ford Laser the day he returned from Nabiac. He said that he had done so because Peter Van Straalen had told him to." (SU 235) "As you recall from the Crown address the Crown says that the accused Kevin Gall spray painted the car and removed distinguishing features to disguise it so that no-one would know that the deceased who came in the car to Wiltona Place had been there that day and no-one would be able to connect the deceased with the car and with the location and with the accused Mr Kevin Gall …" (SU 236) "But in all events Mr Johnstone (counsel for Kevin Gall) says and I'll remind you about that when I come to address, that really all of this does not matter because Mr Kevin Gall made an admission that the Ford Laser that was driven to 8 Wiltona Place was the same one that was recovered and tested for DNA." (SU 238) 1. Kevin Gall submitted that because the jury found him guilty of murder and of discharging a firearm with intent to cause grievous bodily harm, they must have rejected his evidence that he did not actually shoot at Mr Fox and must have rejected his evidence that he shot at the deceased to protect his father whom he said had told him the deceased had a gun. That being so, he submitted that inferentially the jury must have used his post offence conduct to corroborate the evidence of Mr Fox, causing them to reject his evidence on these questions and to have concluded that his actions demonstrated an intent to kill the deceased and to shoot at Mr Fox. He submitted that such a line of reasoning was the same as that involving lies told out of a consciousness of guilt (R v Cook [2004] NSWCCA 52 at [25]). 2. He submitted that her Honour invited this type of reasoning when she said in her summing up: "However the Crown relies on these matters to show that whoever destroyed or disposed of the evidence knew that what he had done was wrong and was trying to hide the wrongdoing." (SU 213) 1. He submitted that in those circumstances the jury should have been directed that they could only use these matters against him if they found that he did these things out of a consciousness of guilt of the actual offences with which he had been charged and not out of fear of retribution from the Nomads. He submitted that on the facts of this case that was a critical consideration and the failure to direct the jury as to consciousness of guilt constituted a miscarriage of justice requiring a re-trial. He submitted that with respect to the murder charge, this post offence conduct was not logically available to distinguish between a consciousness of guilt of murder, as opposed to manslaughter, on the basis of excessive self-defence and a direction should have been given by her Honour to make the distinction clear. Consideration 1. In order to properly assess this ground of appeal, it is necessary to understand the rationale behind the need for a "consciousness of guilt" direction by a trial judge. A helpful analysis of that rationale is to be found in the judgment of Simpson J (Ipp JA and Adams J agreeing) in R v Cook. 2. In a case involving the offence of threatening to inflict actual bodily harm with an offensive weapon with intent to have sexual intercourse, the Crown made it clear that it was going to rely upon evidence of flight by the accused to indicate consciousness of guilt. At [21] Simpson J set out what Gleeson CJ had said in R v Heyde [1990] 20 NSWLR 234 as follows: ""If, by evidence or admission, it is proved that an accused person has told a lie, that is to say, made a deliberately false statement, in Court or out of Court, then, provided various conditions are fulfilled, the jury may regard the lie as demonstrating a consciousness of guilt and may treat the lie as corroboration. … However, common sense and ordinary human experience indicate that a judgement as to whether a lie reveals a consciousness of guilt, although one which people not infrequently make, may, depending upon all the circumstances, be very difficult. People tell lies for many reasons other than a consciousness of guilt. For example, a person may tell lies to escape a false accusation, just as a person may be put to flight by the threat of unjust arrest." 1. Thereafter, Simpson J set out the conditions to which Gleeson CJ had referred and added one of her own: (i) that the lie is deliberate; (ii) that it relates to a material issue; (iii) that the motive for the lie is a realisation of guilt and a fear of the truth; (iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness. (v) the lie must be capable of being seen as indicating consciousness of guilt of the specific offence for which the accused is charged. 1. As Simpson J pointed out at [25] those conditions, which were referred to in the context of lies indicating a consciousness of guilt, are readily adaptable to other conduct which could rationally lead to the same conclusion. Her Honour said: "25 The principles developed in relation to evidence of lies are readily adaptable to the circumstance where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt. Evidence of flight may be admitted where the jury may legitimately infer that the flight was occasioned by consciousness in the accused person of guilt – that is, of guilt of the offence with which he/she is charged. …" 1. In other words, the rationale behind the need for a consciousness of guilt direction by a trial judge is that the particular conduct relied upon by the Crown, while being capable of allowing a legitimate inference of guilt, may also be readily explained by another innocent or less culpable motivation. When that rationale is kept in mind, a proper understanding of the issues which arose in this trial makes it clear that there was no need for a consciousness of guilt direction by her Honour and that no miscarriage of justice has occurred by her Honour not having done so. 2. Before her Honour commenced her summing up, there was a discussion with trial counsel as to its content. The overwhelming inference is that no counsel at trial considered that a consciousness of guilt direction was necessary, otherwise they would have raised the issue. It is trite to observe that not every case in which evidence of post offence conduct is adduced requires a consciousness of guilt direction. The direction is only required when it is necessary in order to ensure a fair trial in the light of the issues and evidence in the trial. 3. There was no question in this trial of the post offence conduct of Kevin Gall "corroborating" the evidence of Mr Fox or any other Crown witness. In any event, the evidence was not capable of doing so. Such an approach misunderstands the fundamental issue in the trial. 4. Kevin Gall admitted that he had shot the deceased. He admitted that he fired shots thereafter and that Mr Fox was running away. This was at a time when there was eyewitness evidence confirming not only that Mr Fox was running away but that Kevin Gall appeared to be shooting in his direction. The relevant actus reus was established. The crucial issue at trial was whether the Crown had negated Kevin Gall's contention that he had carried out these actions in order to defend himself and his father out of a genuine fear of the Nomads. 5. The issue before the jury was the intention of Kevin Gall at the relevant time. There was no issue as to whether or not he had carried out the relevant act. On his case, the apparently sinister actions of shooting at both the deceased and Mr Fox had an innocent or less culpable explanation. The issue for the jury was whether the Crown had negated that less culpable explanation to the relevant standard, i.e. beyond reasonable doubt. Part of the Crown case to achieve that result was its reliance upon the post offence conduct. The issue was not whether a less culpable explanation for the post offence conduct was available – it was and it constituted the basis of Kevin Gall's defence. The jury had to decide whether the Crown had excluded that less culpable explanation. 6. The difference between the cases of the Crown and Kevin Gall was stark. On the Crown case, he shot the deceased to remove an adversary. On Kevin Gall's case, he did so out of fear of what might happen to his father and himself. An important part of the Crown case was the post offence conduct to establish Kevin Gall's intention. When the issue before the jury was as clear as this, to have given a consciousness of guilt direction would have needlessly complicated the question which the jury had to decide. It would have involved a circularity of reasoning, i.e. the jury could only be satisfied as to consciousness of guilt if they were also satisfied that Kevin Gall had the intent necessary for murder. 7. It would involve the triumph of form over substance and an empty exercise in semantics to require a trial judge in the circumstances of this case to give a direction to the jury that the post offence conduct of Kevin Gall, while capable of giving rise to an inference of guilt of murder, was also capable of giving rise to a less serious or even innocent inference and for that direction to be couched in consciousness of guilt terminology. This is because that very issue was the fundamental question for the jury to decide. They were well aware of the competing issues as to intent as a result of the addresses by counsel and her Honour's comprehensive summary of the competing cases in relation to which there has been no complaint. The evidence of Kevin Gall's post offence conduct was simply part of the Crown's case to rebut his contention that he had acted out of fear and in self-defence. 8. Kevin Gall's submission that the evidence of his post offence conduct could not distinguish between a consciousness of guilt for murder or manslaughter is misconceived. At no time was it suggested by any counsel or her Honour to the jury that the post offence conduct could be used in this way or was capable by itself of establishing guilt of any particular offence. It was simply part of the Crown's overall case to establish Kevin Gall's intention at the relevant time and to establish the negative proposition beyond reasonable doubt that Kevin Gall did not personally believe that it was necessary for him to shoot at the deceased to defend his father and himself. 9. Her Honour's summing up as to manslaughter was at [274] – [285]. No complaint as to this part of the summing up was made at trial, nor in the appeal, nor could there be. 10. Her Honour gave clear, accurate and comprehensive directions as to the state of mind of Kevin Gall at the time of offending and as to the onus and burden of proof. She gave all the necessary warnings. She was not required to do any more and in particular, she was not required in the circumstances of this case to say anything about "consciousness of guilt reasoning". I would grant leave to raise this ground of appeal but dismiss it. Ground 2 – Her Honour erred in failing to direct the jury that they could not use the fact his father and co-accused, Bruce Gall, did not give evidence against the appellant. 1. Kevin Gall accepted that leave was required pursuant to r 4 to rely upon this ground since this issue was not raised at trial. He submitted that since this ground raised a potential miscarriage of justice, leave should be granted. 2. Kevin Gall submitted that there was a risk that the jury would misuse the fact that Bruce Gall did not give evidence in support of his account. He submitted that there was a risk that the jury might have used the fact that Bruce Gall did not give evidence that he had told him that the deceased had a gun, as indicating that he [Bruce Gall] had not said any such thing. Kevin Gall submitted that if the jury reasoned in that way, this would almost certainly have led the jury to convict him of murder. He submitted that what her Honour said in the summing up at [40] – [44] was insufficient since it only related to the effect of Bruce Gall not giving evidence in the case against him. It said nothing about what use the jury could make of that fact in the case against him [Kevin Gall]. 3. Kevin Gall submitted that Bruce Gall's failure to give evidence corroborating what he [Kevin Gall] had said and her Honour's failure to explain the implications of that to the jury were grossly prejudicial to his case in circumstances where his father was not a compellable witness in that case. Kevin Gall submitted that the jury should have been directed in the clearest terms that they must not use the silence of Bruce Gall against him and that it would be quite unfair and wrong for them to do so. He submitted that her Honour should have explained that he [Kevin Gall] was not in a position to require his father to give evidence in his trial and that his father might have quite independent reasons why he did not want to give evidence in the presentation of his own case that had nothing to do with the presentation of Kevin Gall's case. Consideration 1. Her Honour said the following in relation to Bruce Gall not giving evidence: "40 You will have noticed that Mr Bruce Gall did not give evidence. He has not given any explanation by himself giving evidence in response to the Crown's case. There are a number of important directions of law which I must give you in relation to that. 41 An accused person may always, by giving evidence or calling other evidence, make a response to the case presented by the Crown by way of an explanation for the whole or parts of the Crown case, but there is no obligation to do so. As I have already pointed out, the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence with which he is charged. 42 The accused bears no onus. The accused is presumed to be innocent until you have been satisfied beyond reasonable doubt by the Crown of his guilt. 43 Although the accused may give evidence in relation to the whole or any part of the Crown's case by way of explanation for it or by way of additional matters which the accused may wish to raise, he may equally elect to give no such explanation nor call any evidence in that regard. The accused is entitled to say nothing and make the Crown prove his guilt. 44 I direct you, as a matter of law, that the accused Mr Bruce Gall's silence in Court and his election not to call evidence apart from that of the Sheriff's officers cannot be used against him. The accused's election not to offer an explanation of the whole or any part of the Crown's case by giving evidence (or by calling evidence) constitutes no admission by him and no such inference must be drawn from that fact. Nor must such an election be used by you to fill gaps in the evidence tendered by the Crown and it may not be used as a makeweight in assessing whether the Crown has proved its case beyond reasonable doubt. 45 You must not speculate about what might have been said in evidence if the accused had given evidence." 1. Those directions by her Honour were given in clear and, with respect, forceful terms. Of particular importance were the directions at [44] – [45]. Her Honour's directions that the election not to give evidence could not be used to fill gaps in the Crown case and that the jury should not speculate as to what might have been said in evidence if Bruce Gall had given evidence, are important. There is no reason why the jury would have disregarded those directions had they thought about the effect on Kevin Gall's case of Bruce Gall not giving evidence. 2. Against that background, there is no reason to suppose that the jury used the fact that Bruce Gall did not give evidence against Kevin Gall. There is nothing about the conduct of the trial, the directions that were given or any submissions made that would give rise to such a reasoning process. The ground of appeal can only be based upon speculation. 3. On this issue, it is also useful to have regard to what her Honour said about separate trials: "12 As I trust I have emphasised throughout the course of these proceedings, there are two separate trials proceeding before you. For reasons of convenience, taking into account the number of witnesses in common, each of the trials of Kevin Gall and the trial of Bruce Gall have been heard jointly. I repeat that you must consider the case against each accused man separately. There is no reason why your verdict in respect of the case brought against one accused should be the same as your verdict with respect to the case against one or more of the other accused. The evidence against each accused differs in a number of respects and the charges are different in respect of some charges and the same in respect of others, and you will need to pay careful attention to the evidence that the Crown relies on in support of the case it makes against each accused. 13 In considering the two charges, which are preferred against both accused, you should not seek to decide whether they are guilty. That would be quite wrong and unfair. You look at the case that is brought by the Crown against each man separately. 14 You will be required to return a separate verdict in respect of each accused and in respect of each charge. 15 In considering the case against each accused in respect of any count you must be careful to ensure that you do not allow the fact that he is accused of other offences to influence you against him. You must be scrupulous in considering the evidence in each case by itself. It would be quite wrong to reason towards his guilt of any offence because you thought "he must be guilty if the police have charged him with so many offences". 16 That goes particularly in this case where, as you know, each accused has pleaded guilty to some offences." 1. This direction, taken with the direction in relation to Bruce Gall not giving evidence, make it most unlikely that the jury acted in the way suggested by the ground of appeal. It should also be noted that in the course of the trial on a number of occasions the jury were clearly and accurately directed on the onus and burden of proof. These directions stressed that there was no onus on the accused but that it was for the Crown to prove his guilt. 2. The assertion in submissions that Bruce Gall's silence was "overwhelmingly and grossly prejudicial" and that as such required the direction now sought is not borne out by the conduct of the trial. There was nothing even faintly suggestive of the need for such a direction in the addresses of counsel, in the discussions between counsel and her Honour and in the questions received from the jury. 3. I would grant leave to rely upon this ground of appeal but the ground has not been made out. Ground 3 - In all the circumstances the murder verdict was unreasonable and cannot be supported having regard to the evidence. 1. When this ground of appeal was raised with senior counsel for Kevin Gall, he made it clear that he was not relying upon this ground as a separate and freestanding ground. He advised that the ground depended for its success on the matters raised in support of Ground 1. It was for this reason that no submissions, either oral or written, were made in respect of any aspects of the evidence said to give rise to any of the verdicts against Kevin Gall being unreasonable. 2. That being so, the failure of Kevin Gall to succeed on Ground 1 means that he must also fail on this ground. THE APPEAL AGAINST SENTENCE BY KEVIN GALL Sentence proceedings 1. Kevin Gall was sentenced as follows: 1. For the offence of pervert the course of justice – a fixed term of imprisonment for 1 year 10 months to date from 16 November 2010. 2. For the offence of unauthorised possession of prohibited firearms and weapons – a term of imprisonment of 3 years 7 months with a non-parole period of 2 years and 8 months to date from 16 November 2011. 3. For the offence of discharging a firearm with intent to cause grievous bodily harm – a fixed term of imprisonment of 8 years to date from 16 November 2013. 4. For the murder – a sentence of 27 years with a non-parole period of 18 years to date from 16 November 2016. 1. The overall effect of the sentence was a head sentence of 33 years with a non-parole period of 24 years to date from 16 November 2010. In the course of her sentencing judgment, her Honour noted that were she to set a separate sentence for murder she would have set a non-parole period of 20 years and that she only reduced same by reference to the overall non-parole period and the principle of totality. 2. Her Honour reviewed the factual background to Kevin Gall's offending in terms similar to those set out in this judgment. In relation to his subjective circumstances, her Honour found that he was born in 1978 and was aged 34 at the time of sentence (November 2012). In 1998 he had completed an apprenticeship and obtained a TAFE Certificate in Mechanical Engineering after completing a four year course. He had no significant prior criminal convictions and had not previously served a custodial sentence. He did not give evidence in the sentence proceedings. 3. In relation to the murder offence her Honour found that Kevin Gall's motive was a desire to rid himself of an unwanted adversary. Her Honour found that the jury verdict showed that it rejected the proposition that he had killed the deceased to defend or protect his father. She assessed the offence at the middle of the range of seriousness for an offence of murder. 4. Her Honour took into account as an aggravating factor that Kevin Gall had disposed of the body of the deceased which was never found. She rejected his evidence that he did so because of fear of retribution by the Nomads and found that he did so to ensure that the body could not be examined. 5. Her Honour accepted that the offence was planned in the sense that Kevin Gall chose to approach the Girraween premises unobtrusively so that his arrival would not be easily detected. She took into account that he used a pistol from a satchel in which he had carried it for months since the cessation of his friendship with the deceased. Her Honour noted that he had the pistol in his hand ready to fire as he approached the premises. 6. Her Honour found as a mitigating factor that the offence had been provoked by the victim in that he had gone to the premises with Mr Fox demanding Kevin Gall's presence. Her Honour also found that both Mr Fox and the deceased spoke to Bruce Gall in tones which were both aggressive and confrontational. Her Honour rejected the proposition that Kevin Gall was a person of good character and rejected the submission that he was genuinely remorseful. 7. Her Honour found that Kevin Gall had good prospects of rehabilitation. 8. Kevin Gall submitted to her Honour that his sentence should be reduced because of the degree to which the administration of justice had been facilitated by the conduct of his defence, i.e. by disclosures and admissions made pre-trial and during the trial. This meant that the trial had been significantly shortened. Her Honour accepted that his case had been properly and efficiently run which meant that many witnesses did not need to be called. Her Honour also accepted that in his evidence Kevin Gall had made admissions, particularly as to post offence conduct. Her Honour was not prepared to accept that he had made a genuine attempt to locate the deceased's body. In the circumstances of the case, her Honour was not disposed to reduce his sentence by reason of those matters. The Appeal Ground 1 – The sentence imposed upon the murder was manifestly excessive and further in this regard her Honour erred in finding: (a) That the death of the deceased was brought about by Kevin Gall's desire to rid himself of an unwanted adversary. (b) That the offence fell into the middle level of seriousness. (c) That there was no mitigation by virtue of it being unlikely the applicant was going to re-offend pursuant to s21A(3)(g) Crimes (Sentencing Procedure) Act 1999 and/or; (d) There should be no discount for the facilitation of the administration of justice by the applicant's admissions and the significant shortening of the trial. 1. Kevin Gall submitted that her Honour's finding as to his motivation to commit the offence of murder was inconsistent with her finding that there was a significant level of provocation involved in the offence. He submitted that in all the circumstances of the case, her Honour could not be satisfied beyond reasonable doubt that he had an intention to kill the deceased rather than to inflict grievous bodily harm. He submitted that this placed the case at a lower level of seriousness than those where there was an intention to kill. He submitted that it was for this reason that her Honour erred in assessing the offence at the middle level of seriousness. 2. He submitted that this was supported by the jury's verdict on count 4 – i.e. that he discharged the firearm with intent to cause grievous bodily harm to Michael Fox, not with intent to murder him. 3. Kevin Gall submitted that her Honour had erred in not specifically taking into account, when sentencing for the murder offence, that he was unlikely to re-offend whereas she had taken that into account in relation to the other offences. He referred to the particular circumstances of this offending and to the absence of any other criminal conduct on his record. 4. Kevin Gall submitted that his admissions had significantly shortened the trial and that he should have received some benefit in sentencing because of this. Consideration 1. Her Honour's finding as to Kevin Gall's intention when he shot at the deceased was open to her. The finding was consistent with him alighting from the taxi before arriving at the Girraween premises, drawing the pistol and firing without warning and firing at least 3 shots at the deceased. The fact that there was an element of provocation on the part of the deceased and Mr Fox by being at the premises, is not inconsistent with that finding. Their presence merely brought matters to a head. 2. Her Honour was well aware that in making that finding she had to do so beyond reasonable doubt (sentence judgment at [5]). There was sufficient evidence to allow her Honour to make her finding to that standard. The position of Mr Fox was different to that of the deceased. The deceased was the person who was pressing Kevin Gall to return property and to do other things, whereas Mr Fox occupied a supporting role. 3. In order to set aside a factual finding by a sentencing judge, it is necessary to establish that there was an error of principle or a mistake of fact or law so as to indicate that the sentencing discretion miscarried (House v R [1936] HCA 40; 55 CLR 499 at 505). Kevin Gall has not identified error of that kind. 4. Kevin Gall's challenge to her Honour's assessment of the objective seriousness of the offending was largely dependent on him being successful in challenging her factual finding as to his intent when he shot the deceased. Since he has failed on that issue, this challenge largely falls away. 5. As this Court has said on many occasions, the objective seriousness of an offence is a matter of evaluative judgment about which reasonable minds can differ. Spigelman CJ said in Mulato v Regina [2006] NSWCCA 282 at [37]: "37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. …" 1. In Mulato Simpson J said at [46]: "46 … The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." 1. Those passages have repeatedly been endorsed (R v Lolesio [2014] NSWCCA 219 at [63] – [64]; Kaminic v R [2014] NSWCCA 116 at [46] – [47] and McGeown v R [2014] NSWCCA 314 at [9] – [11].) That approach was most recently confirmed in Sabongi v R [2015] NSWCCA 25 at [65] – [69]. 2. While her Honour did not say in terms that she took into account the unlikelihood of Kevin Gall re-offending as a mitigating factor, it is clear that she did so. She referred to that matter three times in her sentence judgment. In that regard, it should be noted that although her Honour did not find that the applicant was a person of good character, she still took into account in his favour that he had good prospects of rehabilitation. That finding is closely aligned with a finding that he was unlikely to re-offend. 3. Kevin Gall admitted his involvement in the shooting at an early point in time. There is no doubt that counsel appearing for him conducted his case properly and efficiently. On the former issue, however, eye witness and other evidence would have made a denial of an involvement in the shooting counter-productive. By admitting his involvement, Kevin Gall was able to direct his evidence to exculpating factors. 4. Although his case was run expeditiously and his legal advisors are to be congratulated in that regard, it does not automatically follow that there should be a discount of sentence. This is very much a matter for the sentencing judge particularly when the judge had already had regard to totality and was required to impose a sentence which, in all the circumstances, was commensurate with the offending. 5. This ground of appeal has not been made out. Ground 2 - The sentence imposed upon the discharge firearm with intent to cause grievous bodily harm was manifestly excessive and further in this regard, her Honour erred in finding: (a) There was no element of provocation to be taken into account pursuant to s21A(3)(c) Crimes (Sentencing Procedure) Act 1999 and/or (b) There should be no discount for the facilitation of the administration of justice by the applicant's admissions and the significant shortening of the trial. 1. Kevin Gall submitted that her Honour, having found a level of provocation in that the deceased and Mr Fox went to the premises to stand over him and his father, should have reduced the sentence for this offence in order to take that matter into account. 2. Kevin Gall relied upon the earlier submissions relating to the facilitation of justice in relation to the sentence for this offence. Consideration 1. Her Honour specifically rejected any element of provocation in relation to this offence when she said: "I do not accept that Kevin Gall was provoked by the victim. At the relevant time Mr Fox who knew that the deceased would already have died from the several gunshot wounds that he had received, was simply trying to escape so that he too would not be shot." (Sentence judgment at [84]) 1. This finding was open to her Honour. All the evidence was to the effect that Mr Fox was trying to escape when Kevin Gall fired at him. The provocation which her Honour found in relation to the murder offence had already ceased by the time this offence was committed, i.e. having seen the deceased shot, Mr Fox was fleeing for his life. 2. In relation to the second part of this ground of appeal, the matters raised in pars [126] – [127] apply and it was open to her Honour to take the approach which she did. 3. This ground of appeal has not been made out. Ground 3 – Her Honour erred in accumulating the murder sentence by 3 years with respect to the discharge of the firearm with intent to cause grievous bodily harm sentence. 1. Kevin Gall submitted that although the question of accumulation was a discretionary matter, when one took into account the extent of the accumulation on the firearms offences, as well as that relating to the discharge firearm with intent offence, it was clear that the extent of the accumulation was excessive in that the sentence for the murder offence did not commence for 6 years after the sentence for pervert the course of justice. Consideration 1. As was appreciated by Kevin Gall, the question of accumulation and concurrency is a discretionary one. Howie J set out the relevant principles in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 . One of the issues to be considered by a sentencing judge is the extent to which one offence can be said to subsume another or other offences. While these offences were part of a course of conduct, they were nevertheless quite separate. Having killed the deceased, Kevin Gall chased Mr Fox shooting at him with an intent to inflict grievous bodily harm. The quite separate nature of this offence required a level of accumulation. The extent of that accumulation was a matter entirely within her Honour's discretion (House v R). Kevin Gall has failed to show how that exercise of discretion miscarried. 2. This ground of appeal has not been made out. Ground 4 – The sentence imposed with respect to the pervert the course of justice charge is manifestly excessive and her Honour has erred in: (a) Finding the offence was committed in company. (b) Failing to find that the damage caused by the offence was not substantial and/or (c) Failing to be satisfied that the offence was not part of an organised criminal activity. 1. This ground of appeal relates to the occasion, approximately two months after the murder, when Kevin Gall, Bruce Gall, Mr Van Straalen and Mr Lapich were talking and a transcript of what they said became Exhibit AC. It is apparent from that exhibit that Kevin and Bruce Gall encouraged Mr Lapich to give false evidence and that Kevin Gall encouraged Mr Lapich to destroy his mobile phone. 2. The relevant findings by her Honour, which are challenged by this ground of appeal were that the offence was committed in company and the rejection of the two matters put forward by Kevin Gall as mitigating considerations – that the damage caused by the offence was not substantial and that the offence was not part of a planned or organised criminal activity. Her Honour declined to make findings in accordance with those submissions. This was because there was insufficient evidence before her to allow her to ascertain how long the arrest of Kevin Gall had been delayed by that conduct and there was insufficient evidence to allow her to make a positive finding that the advice given to Mr Lapich was not part of a planned or organised criminal activity. 3. Kevin Gall submitted that despite the fact that Bruce Gall was present at the time the advice was provided to Mr Lapich, there was no evidence that his presence precipitated or had any role in causing that advice to be given. He submitted that there was no evidence that the advice given to Mr Lapich had any material effect upon his subsequent arrest. He submitted that there was no evidence that he had discussed the giving of this advice with any other person including Bruce Gall. In those circumstances, he submitted, her Honour should have made the findings which were requested. Consideration 1. The fact that the conversation with Mr Lapich occurred more than two months after the murder allowed the inference that Kevin and Bruce Gall had plenty of time to think about the circumstances of the murder and "the various ways in which the investigation of the killing could be thwarted with a view to Kevin Gall's culpability never being discovered by the police". The state of the evidence was such that it was open to her Honour not to be satisfied as to the two mitigating matters referred to. By way of contrast, the part played by Kevin and Bruce Gall in what was discussed at the time that Exhibit AC came into existence, meant it was open to her Honour to find that this offence was committed by Kevin Gall in company with Bruce Gall. Bruce Gall made remarks which encouraged Mr Lapich to give false evidence at a time when Kevin Gall was trying to achieve the same result. 2. This ground of appeal has not been made out. Ground 5 – The sentences imposed with respect to the firearms offences were excessive and her Honour erred in setting a non-parole period in the circumstances of pleas of guilty in excess of the standard non-parole period. 1. This ground of appeal was not relied upon. Ground 6 – Her Honour erred by accumulating the sentence for discharge of a firearm with intent to cause grievous bodily harm by 2 years with respect to the firearms offences. 1. Kevin Gall relied upon the same submissions as were made in respect of ground 3. Consideration 1. The same principles apply to this ground of appeal as apply to ground 3 and Kevin Gall has the same difficulties in making out this ground. Since he has failed to show how her Honour's sentencing discretion miscarried on this issue, this ground of appeal should be dismissed. Conclusion as to Kevin Gall 1. The orders which I propose in relation to the conviction appeal and the application for leave to appeal against sentence are as follows: (1) In relation to the conviction appeal, I would grant leave to appeal in respect of grounds 1, 2 and 3 but would dismiss the appeal. 1. (2) In relation to the application for leave to appeal against sentence, I would grant leave to appeal but dismiss the appeal. BRUCE GALL – CONVICTION APPEAL Ground 1 – Her Honour erred in her directions to the jury about the requirements to be satisfied before the appellant could be convicted of the offence of being an accessory after the fact to the murder of Mr Green. 1. Her Honour gave directions to the jury on this issue in writing and orally. The content of the directions was agreed to by all counsel. The written directions were: "ACCESSORY AFTER THE FACT TO MURDER (BRUCE GALL) The Crown alleged that Bruce Gall is an accessory after the fact to murder. The act that the Crown relies upon is the allegation that Bruce Gall washed blood from the concrete at 8 Wiltona Place, Girraween on 16 April 2010. Bruce Gall is an accessory after the fact to murder if he assisted Kevin Gall in any way or hinders the apprehension, trial or punishment of Kevin Gall knowing when he did so that Kevin Gall had committed the crime of murder. Thus the Crown must satisfy you beyond reasonable doubt of these matters: (i) That the crime of murder was committed by Kevin Gall and (ii) That at the time Bruce Gall rendered assistance, Bruce Gall was aware of all the essential facts or acts that established the crime of murder by Kevin Gall and (iii) That Bruce Gall with that knowledge had intentionally assisted Kevin Gall by washing the blood from the concrete. (iv) That Bruce Gall washed the blood from the concrete on 16 April 2010. ALTERNATIVE VERDICT – ACCESSORY AFTER THE FACT TO MANSLAUGHTER (BRUCE GALL) This matter only arises for consideration in the event that you decide to return a verdict of "not guilty of murder but guilty of manslaughter" with respect to Kevin Gall. In this event, you would necessarily not be satisfied beyond reasonable doubt that Bruce Gall is guilty as an accessory after murder because you are not satisfied beyond reasonable doubt that the crime of murder has been committed. It would follow that you would return a verdict of not guilty with respect to the count of accessory after murder against Bruce Gall. You would consider in the alternative whether you are satisfied beyond reasonable doubt that Bruce Gall is an accessory after manslaughter. In order to return a verdict of guilty with respect to this alternative count, the Crown must satisfy you beyond reasonable doubt that: (i) That the crime of manslaughter was committed by Kevin Gall and (ii) That at the time Bruce Gall rendered assistance, Bruce Gall was aware of all the essential facts or acts that establish the crime of manslaughter by Kevin Gall and (iii) That Bruce Gall with that knowledge had intentionally assisted Kevin Gall by washing the blood from the concrete. (iv) That Bruce Gall washed the blood from the concrete on 16 April 2010. 1. The oral directions were as follows: "BRUCE GALL: accessory after the fact to murder 286 This question arises only if you are satisfied that Kevin Gall is guilty of murder or manslaughter of Neil Green. 287 In order to prove that Bruce Gall is an accessory after the fact to the murder (or manslaughter, as the case may be) of Neil Green, the Crown must prove that Bruce Gall has assisted Kevin Gall, in any way, or aided him in disposing of the proceeds of the crime, or hinders the apprehension, trial or punishment of Kevin Gall knowing when he did so that Kevin Gall had committed the crime. 288 In this case that is all limited, as counsel had told you, to the act of hosing down the carport. It is not about any of the other things that Mr Bruce Gall might have done. It is just the hosing down of the carport. Thus the Crown must satisfy you of these matters — (1) That the crime of murder or manslaughter was committed. (2) That at the time Bruce Gall rendered assistance, he was aware of all the essential facts or acts that establish the unlawful homicide to which the Crown alleges that Bruce Gall was an accessory. (3) That Bruce Gall, with that knowledge, had intentionally harboured or assisted Kevin Gall by hosing down the carport area where the deceased was shot to remove his blood. (4) That Bruce Gall, in hosing down the carport area, acted with the intention of assisting Kevin Gall to escape arrest or conviction." 1. By way of further background, at the close of his case Bruce Gall submitted that it was not open to her Honour to leave to the jury the alternative verdict of accessory after the fact to manslaughter. By judgment entitled R v Kevin Gall; R v Bruce Gall [No 4] [2012] NSWSC 1355 her Honour rejected that submission. In the course of doing so, her Honour said: "19 The jury's right to return an alternative verdict in such circumstances, gives rise to a correlative duty imposed on the trial judge to instruct a jury upon possible facts leading to an available outcome in addition to a count specifically charged: Pemble v The Queen [1971] HCA 20; 124 CLR 107. Just as manslaughter is a lesser offence to murder, the charge of accessory after the fact to manslaughter is a lesser offence to the charge of accessory after the fact to murder. So much is reflected in the different penalties for such offences (five years as opposed to 25 years). 20 In my view, while the principle is of general application to all indictable offences, the position is a fortiori in the case of murder and manslaughter where historical concepts relating to the single crime of unlawful homicide apply (see R v Elfar [2000] NSWCCA 255; 115 A Crim R 64, per Sperling J). 21 The difference between murder and manslaughter is pre-eminently in the mind of the accused person. This has been found to have an effect on the mental element required to be established on a charge of accessory after the fact to murder or manslaughter. 22 The matter was considered in R v Stone [1981] VR 737. At the end of the Crown case, the accused submitted that there was no case to answer on counts which included being an accessory after the fact to murder. The accused submitted that it was necessary for the Crown to prove knowledge by the accused at the relevant time of facts or acts which would allow it to be said that the crime of which the principal was guilty had in fact been committed to the knowledge of the accused at the time at which he was alleged to be acting as accessory. 23 Crockett J said, of the charge of accessory after the fact to murder: "The acts, or facts, which must be shown to have been within the knowledge of the accessory at the relevant time do not have to include matters that would prevent what otherwise would be murder from being murder or which would make the offence an offence less than murder. That is to say, it is sufficient if the acts, or facts, of which the accused is shown to have knowledge are such from which it could be said that he must have inferred that the principal had by a voluntary act shot and killed his wife and that he had done so with the intention either to kill or cause grievous bodily harm. The evidence adduced by the Crown, including particularly the matters to which I have already referred in outlining the evidence, would allow an inference of such a kind to be found to have been drawn by the accused, so that the knowledge that he had at the relevant time was that the principal had committed the felony of murder. Of course, as matters then existed, it may have been that the shot was fired in self- defence, so as to reduce the crime to manslaughter. It may have been that the shot was fired under the influence of provocation, so as to reduce the crime to manslaughter. I do not think that it has to be shown by the Crown that the accused had knowledge of the acts, or facts, which would have allowed him to have drawn the inference that the offence committed was in fact something less than murder. It may have turned out to be so, although in the present case we now know it did not, because Eddington was convicted of the murder of his wife. But even if it had turned out that the offence was not murder but the lesser offence of manslaughter, the fact that in this case the accused need not have been shown to have knowledge other than that a felonious homicide had been committed by the principal with the intent of killing or causing grievous bodily harm is borne out by the case referred to in Tevendale's Case, supra [[1955] VLR 95], R v Richards (1877) 2 QBD 311." Submissions by Bruce Gall 1. The submissions on behalf of Bruce Gall were as follows. 2. His liability was for the discrete offence of being an accessory after the fact to either murder or manslaughter. These are alternative offences. They are plainly different from one another. It was essential that the jury be instructed that they were separate alternative offences. 3. Her Honour omitted to properly instruct the jury that before Bruce Gall could be found guilty of the subject offence, his knowledge must have been of the precise felony, namely murder, committed by Kevin Gall. It was not sufficient to simply refer to "the unlawful homicide" (R v Tevendale [1955] VLR 95; ALR 260; R v Stone [1981] VR 737). 4. It was essential that the jury be instructed that before they could convict Bruce Gall, they had to be satisfied beyond a reasonable doubt that at the time he performed the alleged act of assistance, he knew that his son had committed the offence of murder. The jury had to be instructed that before they could convict, they needed to be satisfied that he was aware that his son had shot the deceased, either with the intent to kill him or cause him grievous bodily harm, or with reckless indifference to whether the deceased would be killed by the gunshot. 5. The jury also had to be directed that they had to be satisfied beyond reasonable doubt that at the relevant time, Bruce Gall did not believe that his son had shot the deceased in his [Bruce Gall's] defence and did not believe that his son's conduct was a reasonable response in the circumstances as he [Kevin Gall] perceived them to be. It was essential that the jury's attention be focused upon what crime, if any, Bruce Gall understood had been committed at the time of his assistance. 6. The directions of her Honour failed to do this. The directions ignored the mental state of Bruce Gall at the time he was said to have hosed down the carport. Even though trial counsel for Bruce Gall did not seek a re-direction, the error was a fundamental one and touched upon the elements of the offence. The error occasioned a miscarriage of justice and for this reason, leave should be granted pursuant to r 4 of the Criminal Appeal Rules. 7. The error in her Honour's written direction in relation to the alternative verdict of accessory after the fact to manslaughter was that such an alternative verdict would only arise in the event that the jury returned a verdict of not guilty of murder, but guilty of manslaughter with respect to Kevin Gall. That was incorrect. The jury should have been told that even if they found Kevin Gall guilty of the murder of the deceased, they could still return a verdict of guilty of being an accessory after the fact to manslaughter of the deceased against Bruce Gall. R v Nguyen [2010] HCA 38; 242 CLR 491 at [44] – [46], [49] – [50] and Nguyen v R [2013] HCA 32; 298 ALR 649 at [23] – [27] were said to be authority for that proposition. 8. Such an alternative verdict continued to be available because it remained open that Bruce Gall was not aware of all of the essential facts necessary for murder and might have believed that Kevin Gall had committed manslaughter. For example, he may have considered that Kevin Gall had killed the deceased by way of excessive self-defence, provocation or an unlawful and dangerous act. 9. The written directions made it impossible for the jury to consider the alternative verdict of being an accessory after the fact to manslaughter if a verdict of guilty of murder was to be returned against Kevin Gall. Such a verdict was returned and accordingly, the jury never got to consider the alternative verdict in Bruce Gall's case. It was submitted that a similar issue arose in Budrodeen v R [2014] NSWCCA 332. 10. The Crown did not join issue with the submissions put on behalf of Bruce Gall other than to rely upon R v Stone. It was the Crown's submission that R v Stone provided a complete answer to the submission and should be followed by this Court. Consideration 1. I have concluded that Bruce Gall's submissions should be accepted. As a matter of logic, they conform with the approach which the courts have consistently adopted for murder and manslaughter. The principle was succinctly stated by Cockburn CJ in The Queen v Richards (1877) 2 QBD 311 at 313: "As to the main point, a man charged with murder may be convicted of manslaughter because murder involves the lesser charge of felonious homicide; so, for the same reason, one charged as accessory to murder may be convicted as accessory to manslaughter. The one thing follows from the other." 1. To the extent that there is any authority on the issue, it supports the submission of Bruce Gall. A surprising feature of this ground of appeal is the paucity of authority. 2. In R v Tevendale Herring CJ said: "The next question that was raised was a question as to what knowledge the person charged with being an accessory must have and the case was dealt with by the learned judge at the trial on the basis that the accessory must know that the principal offence has been committed – must know of the acts of the principal felon. … My present view, for what it is worth, is that the matter has been properly dealt with in this case and that it is necessary before a man can be convicted of being an accessory after the fact that the jury be satisfied that he did know the principal offence had been committed by the principal felon; that if charged with assisting a thief it is necessary that he should know that the theft has been committed." 1. Martin J was not so definite and said: "So far as this presentment is concerned, I am satisfied that it was necessary for the Crown to show that Tevendale had knowledge of the actual felony charged, but I am not at all sure that that would be necessary in all cases. …" 1. Sholl J went into the matter in most detail and said: "The learned Judge at the trial directed the jury that it was necessary for the Crown to prove knowledge in the accused of the precise felony to which he was alleged to have become accessory, and the accused cannot complain of that direction, nor does his counsel in fact complain of it here. … It is not perhaps strictly necessary in this particular case to decide whether any wider definition of the crime of being an accessory after the fact than that given by the learned trial judge would be correct in law, but since the matter has been so fully argued and the question is one of the practical importance to the administration of the criminal law, it is in my opinion desirable to say something about it. My present opinion is that the definition given by the learned judge is the correct definition and that it is not sufficient to constitute the offence to prove knowledge in or notice to the accused that the person harboured or assisted was guilty of some felony, of the precise nature of which he did not have knowledge or notice. … So I with great respect differ from my brother Martin's opinion that there - may be cases where a wider definition might be put before a jury. Otherwise it seems to me that, to give one example, as I gave during the argument, a man who had committed a murder might tell another person he had committed larceny - each crime being a felony and if the person whom he so approached then assisted him to escape justice, it would follow that the assister would be guilty of being accessory after the fact to the murder, the felony in fact committed. It seems to me that that cannot well be the law; though, no doubt, knowledge of all the relevant facts might perhaps be sufficient. Of course, it might be said that the crimes in the example just given could be reversed and so a man might escape punishment for this particular offence of being an accessory after the fact even though he in fact assisted a thief in the belief that the thief had been guilty of murder. But inconveniences like that, I think, if the circumstances do not disclose some other offence at common law, ought to be a matter for remedial legislation. …" 1. Comments to similar effect were made by Hasluck and Roberts-Smith JJ in Winning v The Queen [2003] WASCA 245. The difficulty with Winning is that the criminal law in Western Australia has been codified and it may be that, in part, this qualifies the reliance which can be placed on these observations. 2. Hasluck J said: "121 It is commonly accepted that for the liability of an accessory after the fact to arise, it is necessary for the Crown to establish the commission of the principal offence. However, it is not necessary that the principal offender be convicted or be amenable to justice. The requirement is that the offence must have been committed. Moreover, the accessory must have knowledge that the person assisted has committed the offence. The relevant time for assessing the state of mind of the accessory will be at the time the alleged assistance was given. 122 In R v Stone [1981] VR 737 Crockett J observed at 740 that what must be proved by way of knowledge on the part of the accessory is knowledge of all the relevant facts, or acts, that establish the precise felony with respect to which the Crown alleges the accused was an accessory. … 127 Reasoning of this kind appears to affirm the basic rule that a person cannot be convicted as a secondary party unless he knows the essential circumstances constituting the offence: Wilson v Dobra (1955) 57 WALR 95. Further, just as a man charged with murder may be convicted of manslaughter, because murder involves the lesser charge of felonious homicide; so, for the same reason, one charged as accessory to murder may be convicted as accessory to manslaughter: R v Richards (1877) 2 QBD 311 at 313. … 143 Having regard to the reasoning in Carter & Savage (R v Carter and Savage Ex Parte Attorney General [1990] 2 Qd R 371), I conclude that it was open to the learned trial Judge to admit evidence to the effect that Avis had been convicted of wilful murder. However, evidence of that kind was not conclusive. The applicant was entitled to assert that the principal offender, Avis, committed the lesser offences of murder or manslaughter in which case the applicant would have been an accessory after the fact to an offence other than wilful murder. It is true that the applicant's admissions were potent evidence that he had knowledge of facts which might be sufficient for him to be convicted of being an accessory after the fact to wilful murder. However, in my view, as the learned trial Judge was obliged to give directions as to the alternative verdicts of murder and manslaughter, he was also obliged to inform the jury that the applicant could be convicted as an accessory after the fact to either of those lesser offences. 144 It follows that, in my view, the learned trial Judge erred in proceeding from the premise that because Avis had previously been convicted of wilful murder the applicant could only be an accessory after the fact to that offence. This meant that he erred in declining to direct the jury that it was open to find the applicant guilty of being an accessory after the fact to an unlawful killing other than wilful murder. 145 Put shortly, if, in the course of considering alternative verdicts, the jury reached a point where they had to resolve the accessory issue, because they were satisfied that Avis, acting alone, struck the fatal blows, it was open to the jury to find that the applicant knew only of acts done by Avis amounting to murder or manslaughter, in which case the applicant could only be convicted of being an accessory after the fact to the offence of which he had knowledge. 146 The notion that a secondary party's knowledge will be a limiting factor in determining the extent of his criminal responsibility as an accessory after the fact can be illustrated by an example. If the secondary party assists in the removal of a body from the road, having been told that the death resulted from an accident, it would be hard to accept that he was an accessory after the fact to wilful murder, even if it subsequently emerged that, unbeknownst to the secondary party, the running down was deliberate and the principal was convicted of wilful murder. It follows, then, on the applicant's case, that if the applicant did not know what Avis intended to do or exactly what he did with the knife, it was open to the jury to find the applicant guilty of being an accessory after the fact to an unlawful killing other than wilful murder, and they should have been directed accordingly." 1. Roberts-Smith J made observations to similar effect: "237 As the ground was argued, and from the trial transcript, however, it is clear that what was sought to be put was that if the jury found the applicant not guilty of wilful murder, murder or manslaughter, but that he had knowingly assisted Avis after the killing, it was open to them to find him guilty of being an accessory after the fact to wilful murder, murder or manslaughter. … 240 The learned trial Judge was of the view that the applicant would be guilty as an accessory after the fact to whatever offence occurred in law; that is, unlike liability as an aider where one can aid only to the extent of one's knowledge of the commission of the offence, an accessory who knowingly afterwards does acts which aid the offender, whatever the actual offence was, is guilty of being an accessory after the fact to that offence. He referred to the following passage in the joint judgment of Lowe and Smith JJ in R v Dawson [1961] VR 773: "... for it is a rule long established that upon the trial of a person on a charge of having been an accessory to the commission of a felony, proof of the conviction of the alleged principal offender is admissible, and constitutes prima facie evidence that the felony was committed by him." 241 In short, his Honour said that in his view the law is that once the principal offender had been convicted of wilful murder, then anyone afterwards assisting and becoming an accessory after the fact, could only be an accessory to wilful murder and no other offence. He rejected senior counsel's submission that notwithstanding Avis' conviction, it was open for the jury to bring in a verdict that the applicant was guilty as accessory to murder or manslaughter. … 247 The submission by senior counsel for the applicant that the phrase "that offence" is properly to be construed as encompassing all alternative verdicts open on the indictment, must be accepted. 248 This ground must be upheld." To the extent that R v Stone says the contrary, it should not be followed. 1. It follows that this ground of appeal has been made out. That, however, does not end the matter. The issue of the proviso arises. Section 6(1) of the Criminal Appeal Act 1912 provides: "6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 1. The proviso has been applied even though a trial judge did not properly direct the jury on an element of the offence charged (R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558, Festa v R [2001] HCA 72; 208 CLR 593). The issue on the proviso is whether Bruce Gall lost a real chance of being convicted of the lesser offence of being an accessory after the fact to manslaughter because of her Honour's erroneous direction on that issue. 2. The Crown submitted that the evidence was such that the only rational inference open on the evidence was that Bruce Gall knew all of the facts which gave rise to the conviction of Kevin Gall for the offence of murder so that even if the jury had been properly directed, they could not rationally have come to any other conclusion but that Bruce Gall was an accessory after the fact to the murder of the deceased. 3. The Crown submitted that the jury had clearly rejected Kevin Gall's evidence to the effect that he shot the deceased in order to protect his father and himself. The Crown submitted that it followed from that rejection that the jury had also rejected his evidence that Bruce Gall said to him, immediately before he shot the deceased, that the deceased had a gun. The Crown submitted that even without relying upon the evidence of Mr Fox (which the jury may not have wholly accepted) it would have been clear to Bruce Gall, after the shooting but before the hosing down of the car port, that neither the deceased nor Mr Fox had a gun. An inspection of the deceased would have made that clear and the compelling inference from the flight of Mr Fox without attempting to retaliate, was that he was not armed. 4. The Crown also relied upon the following extract from p 20 of Exhibit AC: "BG Yeah they had f'ing bats in the car. They had motor cycle helmets … pull them over your head. PV They didn't have any guns or anything though, hey? BG No. PV No? BG They were looking for mine. PV They were looking for your guns? BG They were searching. You know when they were searching. That c… was looking in the back. That's what he was looking for. He looked through the house. He said "I'm gunna look through your house". …" 1. That part of the transcript of Exhibit AC (if accurate) provided very strong evidence that at no time did Bruce Gall believe that either the deceased or Mr Fox had guns before the deceased was shot. 2. In a supplementary written submission following the conclusion of oral submissions in the appeal, it was asserted on behalf of Kevin Gall (but not on behalf of Bruce Gall) that this part of the transcript was incorrectly transcribed. It was submitted that it was not clear that Bruce Gall said "no" or whether it was only Van Straalen that said "no" and that thereafter Bruce Gall said "yeah he had it on him" which has not been recorded in the transcript. 3. This point was not taken by either applicant at trial and has not been taken by Bruce Gall in the appeal. At trial the transcript of Exhibit AC was accepted as an accurate transcription of what the listening device was able to pick up and was tendered without objection (T.291.40). The submission is contrary to the evidence of Kevin Gall on this very point (T.467.4). A challenge to the accuracy and completeness of the transcript should not be allowed to be taken for the first time in the appeal. In any event, the issue was not raised in Bruce Gall's appeal and I propose to disregard it. 4. The Crown submission should be accepted. The evidence was such that the only rational inference open was that Bruce Gall knew all the relevant facts relating to the shooting of the deceased and that there was no basis for a belief on his part that his son was trying to defend either him or himself. 5. The Crown position is even stronger when the evidence of Mr Fox is taken into account. Although the jury may not have accepted all of his evidence, they must have accepted most of it for them to reach the verdict which they did in relation to Kevin Gall. 6. It needs to be remembered that it is the state of knowledge of Bruce Gall which is relevant. He was in the presence of the deceased and Mr Fox for the whole of the time. Even before the death of the deceased and the flight of Mr Fox he was likely to have been well aware that they were not carrying guns. If they had been armed with guns, the compelling inference is that he would have been threatened with them. In that respect, the evidence of Mr Fox was almost certainly correct when he surmised that when Bruce Gall started to run he was not "fleeing" from the deceased but was going to either lock himself in the office or get a gun. It is also relevant that the layout and photographs of the premises make it clear that when Kevin Gall shot the deceased, Bruce Gall was running directly towards him. 7. The issue can be looked at in another way. The only evidence to the contrary depended upon an acceptance of Kevin Gall's explanation for why he shot the deceased which was clearly rejected by the jury. There is no other evidence which would provide a rational basis for a belief on the part of Bruce Gall that his son was trying to defend him or himself. Not surprisingly, given the state of the evidence, no submission was made at trial that Bruce Gall may have thought that his son was trying to defend him. 8. This is a case in which the proviso to s6(1) of the Criminal Appeal Act 1912 should be applied in that Bruce Gall did not lose a real chance of an acquittal on the more serious accessory charge. This ground of appeal has not been made out. THE APPEAL AGAINST SENTENCE BY BRUCE GALL Sentence proceedings 1. Bruce Gall was sentenced as follows: 1. For the offence of being an accessory after the fact to murder, a fixed term of imprisonment of 2 years to date from 16 January 2012. The maximum penalty for this offence is imprisonment for 25 years. 2. For the offence of perverting the course of justice, a fixed term of imprisonment of 16 months to date from 16 September 2013. The maximum penalty for this offence is imprisonment for 14 years. 3. For the offence of possessing prohibited weapons, imprisonment with a non-parole period of 18 months to date from 16 January 2015 with a balance of term of 18 months to expire 13 January 2018. The maximum penalty for this offence is imprisonment for 14 years with a standard non-parole period of 3 years. 1. The total effective sentence was imprisonment for 6 years with a non-parole period of 4 years and 6 months. Bruce Gall is eligible for release to parole on 15 July 2016. 2. In accordance with the jury verdict, her Honour found that on 16 April 2010 Bruce Gall assisted his son to escape detection by hosing away the deceased's blood from the concrete floor of the premises with a high pressure hose. 3. When reviewing the facts in her sentence judgment, her Honour noted that in the intercepted conversation of 19 June 2010 (exhibit AC) Kevin Gall sought to influence Mr Lapich to give a false account to police about his whereabouts on 16 April 2010 and to destroy his mobile phone so that the text messages he had sent to Kevin Gall on that day would never be recovered. In accordance with his plea of guilty, her Honour noted that on that occasion Bruce Gall had also encouraged Mr Lapich to give a false version of his whereabouts on that day. 4. Again in accordance with his plea of guilty, her Honour found that on 16 November 2010 a further search warrant was executed at the Wiltona Place premises and that in the process of executing the search warrant, Bruce Gall escorted police into the office where in response to questioning he indicated the whereabouts of a six round .38 calibre revolver. The revolver was wrapped in a light brown cloth on top of the table in the middle of the office. Police seized the revolver and found it to be loaded with six .38 calibre rounds. 5. On 16 November 2010 Bruce Gall was arrested and charged but was released on conditional bail on 22 September 2011, having spent the intervening period in custody. Her Honour in structuring his sentences took into account time already served. 6. Bruce Gall did not give evidence at the trial nor at the sentence hearing. Her Honour based her findings of fact as to his subjective circumstances on a pre-sentence report dated 26 October 2012. Bruce Gall relied upon a report of a psychologist, Bradley Jones, dated 1 October 2012. Her Honour was not prepared to accept the history recorded by Mr Jones because it was not otherwise verified and as a result, the opinions expressed by him were without foundation. 7. Her Honour found that Bruce Gall was born in 1951 and was the younger of two siblings. His mother abused alcohol and was violent, leaving the family home when he was about 12. He had little further contact with her. His father remarried but he was rejected by his stepmother and left the family home when aged about 17. He left school at 15 and commenced an apprenticeship as a fitter and turner. He worked with his father who owned an engineering company and eventually ran his own business. 8. Bruce Gall married in 1970 and had two sons, one of whom was Kevin Gall. Although he and his wife separated in 1999 and divorced in 2000, they remained on good terms. At the time of sentencing he resided with his former wife who continued to provide him with support and friendship. He had a prior criminal record but because the most recent offence was in 1990, her Honour regarded that as being of little moment. 9. Her Honour made the following findings in relation to the offences. Bruce Gall's act of hosing down the car port was the only act relied upon by the Crown in relation to the offence of accessory after the fact. She found that its effect was to assist his son to escape detection, at least for a period, since had the blood remained in place it would probably have led the neighbours or other visitors to report it to the police. Her Honour was prepared to accept that although not excusable, this offence was an understandable act by a father who was devoted to and concerned about his son whom he knew to have just killed someone. Her Honour was prepared to accept that this was an instinctive act by a loyal father in the "heat of the moment". 10. Her Honour found that the factors motivating Bruce Gall were emotional attachment and a misguided sense of loyalty. 11. Nevertheless, her Honour noted that the offence was a serious one, as indicated by the maximum penalty. Her Honour noted that there were strong policy reasons for regarding the offence as a serious one and quoted from Thomas JA in R v Hawken (1986) 27 A Crim R 32 at 38: ""...it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes are not covered up." 1. Her Honour took into account as an aggravating factor that the offence was committed in company (s21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999). By way of mitigating factors, her Honour took into account that the acts of Bruce Gall in hosing down the car port did not, to the extent that he was responding in a relatively short period of time to an event that was both violent and as far as he was concerned unexpected, form part of a planned or organised criminal activity (s21A(3)(b) Crimes (Sentencing Procedure) Act 1999). 2. In relation to the offence of perverting the course of justice, her Honour assessed the underlying facts as being in a different category to those associated with the accessory after the fact to murder offence. Whereas the hosing of blood from the car port might be understood as an impulsive emotional act borne of paternal devotion, the act of encouraging Mr Lapich to give false evidence could not be viewed in the same way. 3. Her Honour considered that the state of Bruce Gall's knowledge at the time of that conversation was relevantly the same as that of Kevin Gall, i.e. it was a serious matter to encourage a potential witness to give a false account if questioned by police with a view to concealing a homicide. The events had occurred some two months after the murder and so could not be regarded as having been in the "heat of the moment". He would also have been aware of the other acts of Kevin Gall to mislead the police, i.e. the disposal of the deceased's body, the removal of the hard drive of the CCTV on the premises, the disguise of the Ford Laser and the destruction of the white van. 4. Because the plea of guilty was not entered until the first day of trial, her Honour allowed a 10 percent reduction to take into account its utilitarian value. 5. Her Honour took into account as an aggravating factor that the offence was committed in company (s21A(2)(e)). Her Honour rejected the submission that the damage caused by the offence was not substantial on the basis that there was no evidence before her to that effect. 6. In relation to the offence of possessing an illegal firearm, her Honour did not accept that he had acquired the pistol after the killing of the deceased to protect himself and his son from the Nomads, or that he acquired it because of fear of reprisal from the Nomads. By implication therefore her Honour found that Bruce Gall possessed the firearm before the events of 16 April 2010. Her Honour noted that fear of reprisals was not an excuse much less a justification for possessing a firearm. 7. Her Honour was not prepared to take into account Bruce Gall's co-operation with the police in showing them where the illegal firearm was located. Her Honour characterised that action as merely bowing to the inevitable. 8. Her Honour said: "122 The sentence I impose must be apt to mark the community's disapproval of the serious crime of possession of an unlawful firearm to which the applicant had pleaded guilty. It is important to denounce firearms offences by way of general and personal deterrence. Both those factors have particular resonance in this case because it was the possession of an unlawful firearm by Kevin Gall which led to his murder of the deceased, who was unarmed. …" 1. Her Honour took into account as an aggravating factor that the offence was part of a planned or organised criminal activity and that by keeping a loaded firearm unsecured the offence was committed in a broad sense without regard to public safety (s23A(2)(n) and (i)). By way of mitigation her Honour took into account the lack of a substantial criminal record, the unlikelihood of re-offending and his good prospects of rehabilitation. 2. Her Honour was not prepared to find special circumstances. Her Honour found that although there was a common theme to these offences, the offences ought not be wholly concurrent since this would fail to reflect the discrete criminality of each which required a substantial measure of accumulation. THE APPEAL AGAINST SENTENCE Ground 2 – Her Honour erred in finding the offences of accessory after the fact to murder and perverting the course of justice were aggravated by being committed in company. 1. Bruce Gall submitted that there was no evidence to suggest that his actions in hosing away blood from the crime scene were committed with any other person. The same submission was made in relation to the pervert the course of justice offence on the basis that the mere presence of other people did not justify such a finding. He submitted that in both instances it was an error to take into account the fact that an offence was committed in company when that fact added no significant culpability to the offence. Consideration 1. There was no evidence that Kevin Gall was present when Bruce Gall was hosing out the car port. Even if he had been present, it would have added nothing to the offending. The Crown appears to accept this. Accordingly, this part of the ground of appeal is made out. 2. That does not end the matter. The question then becomes whether any lesser sentence is warranted (s6(3) of the Criminal Appeal Act 1912). Given the seriousness of the offending, the sentence was modest and when one has regard to the extent of the accumulation on other sentences, the time to be actually served in custody was 1 year and 8 months. 3. That being so, the Court has to carry out the task explained in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 where the plurality (French CJ, Hayne, Bell and Keane JJ) said: "42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. … 43 After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. …" 1. Bruce Gall was present and witnessed the murder of the deceased by his son who then repeatedly shot at another man as he attempted to flee for his life. He was also aware that his son then removed the deceased's body from the car port area and sought to dispose of it to remove the evidence. With that state of knowledge he hosed down the car port area with a high pressure hose in order to remove the deceased's blood and therefore the evidence linking his son to the premises. 2. Even allowing for the mitigating factors to which her Honour referred, I'm of the opinion that the sentence imposed by her Honour was an appropriate sentence for this offending and that no lesser sentence is warranted. 3. In relation to the offence of attempting to pervert the course of justice, the factual proposition put forward in this ground of appeal is not made out. A proper reading of the transcript of the conversation which took place between Kevin Gall, Martin Lapich, Mr Van Straalen and Bruce Gall on 19 June 2010 makes it clear that not only was Mr Lapich worried and seeking advice from the three other persons, but that both Kevin Gall and Bruce Gall clearly and unequivocally advised him to give false evidence as to his whereabouts and activities on 16 April 2010 (see also [144] hereof). Not only as a matter of fact did the offence occur in company but in the circumstances of this offending the fact that more than one person was urging this course of conduct on Mr Lapich made it more likely that he would accept that advice. This part of the ground of appeal has not been made out. Ground 3 – Her Honour erred in finding that the offence of possessing a prohibited firearm was aggravated by being a planned or organised criminal activity. 1. Bruce Gall submitted that it was clear from the evidence that he was in possession of the firearm because he feared for his safety following the incident where the deceased was shot. This could be inferred from the fact that the deceased was a member of an outlaw motorcycle gang and that Kevin Gall's house had been firebombed on 24 April 2010. He (Bruce Gall) was residing at a place where the deceased had been shot which was an industrial area with no other residential properties nearby. 2. He submitted that there was no basis for finding that this circumstance of aggravation existed. He submitted that such a finding could not be made beyond reasonable doubt and that in any event, to the extent there was planning, it did not go beyond that which would ordinarily be expected of an offence of this kind. Consideration 1. There is a factual error in the submissions. It is clear from the evidence that Kevin Gall, his girlfriend and Troy resided at the Girraween premises after his house had been firebombed. Bruce Gall resided with his former wife and not at these industrial premises. 2. There was ample evidence before her Honour to justify her Honour's findings. It was clear from the circumstances surrounding the murder of the deceased, that both Bruce Gall and Kevin Gall had ready access to firearms and that firearms were stored at the various locations at the Girraween premises. In the absence of any evidence that this firearm was acquired after the death of the deceased, there is a compelling inference that it was one of the firearms which were regularly kept there. 3. The search warrant was not executed until seven months after the murder had been committed and Kevin Gall's house had been firebombed. During that time, there had been no retaliatory action taken against Bruce Gall and no further retaliatory action taken against Kevin Gall. The degree of planning went beyond what one would normally expect for an offence of this kind in that the firearm was in a position where it was readily available for use and was loaded. 4. It was open to her Honour to find that the positioning of the prohibited firearm was well thought through and that Bruce Gall took steps to ensure that it was readily accessible and able to be used with potentially fatal consequences. This ground of appeal has not been made out. Ground 4 – Her Honour erred in finding the appellant had "reserved to himself the right to attack and kill others by having to hand an unlawful firearm which was loaded and ready to use". 1. Bruce Gall submitted that there was no evidence that warranted the conclusion that his possession of the firearm was to "attack and kill others". He submitted that the only reasonable conclusion available from the evidence was that he was unlawfully in possession of the firearm because of fear that he would be the subject of a violent reprisal as a consequence of the death of the deceased. 2. This ground of appeal fails to place her Honour's finding in context. When making that finding, her Honour was dealing with the question of accumulation and had regard to the common theme in all three offences committed by Bruce Gall. The totality of what her Honour said was: "126 The offences for which I must sentence Bruce Gall involve his thwarting the investigation by police of a serious crime (in the case of being an accessory after the fact to murder); subverting the administration of justice (in the case of the perverting the course of justice offence); and taking the law into his own hands and reserving to himself the right to attack and kill others by having to hand an unlawful firearm which was loaded and ready to be used. 127 Although there is a common theme to these offences, the sentences ought not be wholly concurrent ..." 1. The point which her Honour was making was that in keeping with all of these offences, the common theme was that Bruce Gall tended to ignore conventional ways of dealing with problems by using legal and other recognised processes but took the law into his own hands. Her Honour regarded having a loaded firearm readily available with a clear intention that it be used if Bruce Gall thought such action was required, as conduct of this kind. At no point was her Honour suggesting that Bruce Gall had in mind being an aggressor and attacking some unnamed person. 2. The important finding from her Honour's point of view was that Bruce Gall was accustomed to taking the law into his own hands. Her Honour made the important point that despite the deceased's death being largely due to the ready availability of a firearm, Bruce Gall had apparently learned nothing and had brought into existence a situation whereby another person might well be shot as a result of the use of an illegal firearm. 3. The finding made by her Honour was well open to her. This ground of appeal has not been made out. Ground 5 – Her Honour erred in failing to take into consideration the appellant's plea of guilty when determining the sentence to be imposed for the possess a prohibited firearm offence. 1. Bruce Gall submitted that her Honour made no mention of any reduction in the sentence imposed for this offence because of his plea of guilty whereas she had done so in relation to the pervert the course of justice offence. Bruce Gall submitted that in such circumstances the Court should infer that her Honour had failed to take into account the plea of guilty. 2. Bruce Gall submitted that the weight of authority is that judges should explicitly state that a plea of guilty is taken into account and a failure to do so may be taken as indicating that the plea was not given sufficient weight: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. He submitted that her Honour's failure to refer to the discount was indicative of her Honour having failed to take it into account. 3. Bruce Gall submitted that the sentence for this offence of 3 years with a non-parole period of 18 months indicated that it was likely that her Honour had overlooked the discount for the plea of guilty. He submitted that the alternative conclusion that the discount was included but not expressly referred to, would have required her Honour to have adopted as a starting point a sentence of approximately 3 years and 4 months with a non-parole period of 1 year and 8 months, which was unlikely. Consideration 1. While this Court has on many occasions referred to the advisability of sentencing judges indicating the extent of any discount imposed for a plea of guilty, a failure to do so does not necessarily indicate that the sentencing judge failed to take the discount into account. This is particularly so when, as here, her Honour made specific reference to the fact of the plea of guilty at [122] of the judgment at a point in that judgment not long before the imposition of the sentence. Error is not established merely because her Honour did not expressly quantify the discount (R v Simpson [2001] NSWCCA 297; 53 NSWLR 704 at [82] – [83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26]). By reference to the approach her Honour followed in relation to the offence of pervert the course of justice, the strong likelihood is that her Honour had in mind the same discount as she imposed in that sentence, i.e. 10 percent. There is nothing in the form of the sentence actually imposed to indicate that her Honour did not in fact apply a discount of that order. I am not satisfied that her Honour failed to take into account Bruce Gall's plea of guilty. 2. This ground of appeal has not been made out. Ground 6 – Her Honour erred when imposing the sentence for possess prohibited firearm offence: (a) By referring to the non-parole period for the sentence imposed for the possess weapons offence as a fixed term. (b) By failing to make an order the appellant be released to parole on completion of the non-parole period for the offence of possess prohibited weapon. (c) By failing to impose a non-parole period for the offence of possess prohibited weapon first. 1. Bruce Gall submitted that the three errors identified are errors of process and require correction for that reason. 2. Ground 6(a) – The sentence imposed upon the applicant was said to be a "fixed term". That was incorrect as it also contained a non-parole period. This was contrary to s45 of the Crimes (Sentencing Procedure) Act 1999. It was also not appropriate to apply a "fixed term" sentence where the offence carried a standard non-parole period. 3. Ground 6(b) – Where the sentence is of 3 years or less in total, the Court must make an order directing the offender's release at the end of the non-parole period (s50(1) Crimes (Sentencing Procedure) Act 1999). Even if the sentence is imposed on another sentence so the overall sentence is more than 3 years (Cross v Regina(No 2) [2012] NSWCCA 234 at pars [4] – [5]). 4. Ground 6(c) – Where a court is sentencing an offender for an offence committed after 1 February 2003, the court must fix a non-parole period and then fix the balance of the term which is not to exceed one-third of the total sentence unless there are special circumstances (s44 Crimes (Sentencing Procedure) Act 1999). Consideration 1. The errors identified are errors in form not substance. 2. Reference to a "fixed term" is clearly a typographical error. It has no effect on the sentence imposed. 3. The failure to make an order directing the offender's release is once again an error of form. It has no effect on the sentence. Section 50(3) of the Crimes (Sentencing Procedure) Act 1999 says: "50(3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence." And in any event, s 159 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides that the Parole Authority can make an order directing release on parole if an offender is subject to a sentence of 3 years or less for which a non-parole period has been set in respect of which no parole order is in force under, inter alia, the Crimes (Sentencing Procedure) Act. 1. The failure to first fix the non-parole period before fixing a balance of term is the precise error identified in Kentwell v R which the plurality said was of no practical effect insofar as the sentence was concerned: "42 … This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion." 1. These errors while correctly identified have no effect on the sentence. Accordingly, while the ground of appeal has been made out, it also has no effect on the sentence and for practical purposes should be dismissed. Ground 7 – Her Honour erred when determining the extent of accumulation warranted for the three sentences imposed upon the appellant and as a consequence, the overall sentence is manifestly excessive. 1. Bruce Gall submitted that while the issue of accumulation was discretionary, her Honour's approach to accumulation in this case failed to properly take into account that the offences were connected. Each had a connection to the actions taken by Kevin Gall that led to the death of the deceased. With that in mind, the extent to which the sentences were accumulated was simply excessive. 2. Bruce Gall submitted that there was a need for the overall sentence to properly reflect the totality of the criminality (R v Wilson [2005] NSWCCA 219 at [38]). There was no mention made by her Honour of the need to observe this fundamental sentencing principle in her remarks on sentence. He submitted that her Honour had fallen into error by failing to take this principle into account when determining an appropriate overall sentence. He submitted that the consequence of this error was the imposition of a manifestly excessive total term of imprisonment. Consideration 1. As was appreciated by Bruce Gall, the issue of accumulation and concurrency is a discretionary one. Howie J set out the relevant principles in Cahyadi v Regina. One of the issues to be considered by a sentencing judge is the extent to which one offence can be said to subsume another or other offences. 2. While these offences all related to the primary offence of murder committed by Kevin Gall, they were each distinct, occurred at different times and involved different elements of criminality. Each was an entirely separate episode. Each was a very serious offence. Each was a serious example of an offence of its kind and each had substantial maximum penalties. While her Honour may not have used the word "totality" she clearly had it in mind (see [220] hereof). 3. While allowing for mitigating considerations, as her Honour did, the accessorial offence is serious in that Bruce Gall having witnessed the murder of the deceased, and the removal of his body from the location, deliberately sought to assist Kevin Gall. 4. More than two months later, in company with Kevin Gall, he encouraged a witness to give a false account of events so as to interfere with the police investigation. That was at a time when neither applicant had been arrested or charged and other steps had been taken to interfere with the police investigation, i.e. the removal of the body, the removal of the CCTV hard drive, the destruction of spent cartridges, disguising the Ford Laser and the destruction of the white van. In that context, persuading Mr Lapich to give false evidence was an important step in deflecting the police investigation away from Kevin Gall as the killer of the deceased. 5. For the reasons already set out, the keeping of a loaded firearm unsecured in a domestic dwelling, which was readily available to be used in the context of what had already happened to the deceased, was a serious example of offending of that kind. 6. It cannot be said that her Honour failed to take into account the principle of totality. She had specifically referred to it when sentencing Kevin Gall. Since both applicants were sentenced together, her Honour clearly had the principle in mind when sentencing Bruce Gall. 7. No challenge has been made to the individual sentences on the basis that they were manifestly excessive. In relation to the total sentence, nothing has been put before the Court to establish that it was "unreasonable or plainly unjust" (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). Nothing has been placed before the Court to indicate that House v R [1936] HCA 40; 55 CLR 499 error has occurred. 8. In those circumstances, this ground of appeal has not been made out and should be dismissed. Conclusion 1. The orders which I propose in relation to Bruce Gall are as follows: 1. In relation to the conviction appeal, I would grant leave to appeal but dismiss the appeal. 2. In relation to the application for leave to appeal against sentence, I would grant leave to appeal but dismiss the appeal. 1. R A HULME J I agree with the reasons of Hoeben CJ at CL and the orders he proposes. I wish to add some observations about one of the issues raised in these appeals. 2. Ground 1 in the appeal against conviction of Bruce Gall raises questions about the state of the common law in relation to criminal liability for being an accessory after the fact. I agree with the observation of Hoeben CJ at CL about there being a paucity of authority on the subject. It has been observed that this is because the issue "has rarely come before the courts": Peter Gillies, The Law of Criminal Complicity, (1980, The Law Book Company Limited) at 277. That was said some 35 years ago but it continues to be the case. 3. The state of the law concerning one aspect of the mental element required to be proved in relation to an accessory after the fact is uncertain but the weight of judicial opinion (such as there is) points to acceptance of the proposition advanced by the appellant Bruce Gall, namely that it was necessary for the prosecution to establish knowledge of the precise crime committed by his son. I agree with what Hoeben CJ at CL has said about this. 4. There has been criticism of a requirement that an accessory after the fact must know the precise offence committed by the principal: Brent Fisse, Howard's Criminal Law, (5th ed, 1990, The Law Book Company Limited) at 355. 5. The NSW Law Reform Commission has examined the law on this subject: NSW Law Reform Commission, Complicity, Report 129 (December 2010) at 59-70. It identified that this State is alone among Australian jurisdictions in not providing a statutory definition of an accessory after the fact, or in providing a specific offence, rather leaving it to the common law. 6. The Law Reform Commission made a recommendation (Recommendation 3.3) for there to be a statutory provision setting out with clarity what would render a person liable for conviction as an accessory after the fact. It included that it would be sufficient proof of the offence if the accused knew or believed that the principal offender committed a certain offence, or that the accused believed that the principal offender committed a "related offence". A "related offence" was defined to mean one that is committed in the same, or partly the same, circumstances as the offence actually committed by the principal. In other words, if the principal's offence was murder, it would not matter whether the accessory knew or believed it was either murder or manslaughter. 7. A similar, but not identical, approach to what was recommended has been taken in other jurisdictions: see, for example, s 325 of the Crimes Act 1958 (Vic) and s 4 of the Criminal Law Act 1967 (UK). 8. It has been said that being an accessory after the fact is not concerned with a person's implication in another's offence; it is an independent offence against justice, incriminating the person who helps a felon to evade justice: Peter Gillies, Criminal Law, (4th ed 1997, LBC Information Services) at 202. Requiring proof that the accessory knew all of the precise details of the offence committed by the principal does not serve this purpose. 9. DAVIES J: I agree with Hoeben CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2015