Gillard v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Callinan J,Gummow J,Kirby J,Hayne J
• Judgment Date: 12 November 2003
• Neutral Citation: 2003-1112 HCA A,[2003] HCA 64
• Court: High Court
• Docket Number: A200/2002
• Date: 12 November 2003

Kevin Wayne Gillard

Appellant

and

The Queen

Respondent

[2003] HCA 64

Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ

A200/2002

HIGH COURT OF AUSTRALIA

Gillard v The Queen

Criminal law — Murder — Joint criminal enterprise — Appeal against conviction — Misdirection by trial judge — Failure to leave manslaughter to jury — Whether jury properly instructed would necessarily have returned verdict of guilty of murder — Whether failure to leave manslaughter to jury occasioned substantial miscarriage of justice.

Criminal Law Consolidation Act 1935 (SA), s 353(1).

Representation:

D H Peek QC with J A Richards for the appellant (instructed by Lipson Street Chambers)

S A Millsteed QC with A P Kimber for the respondent (instructed by Director of Public Prosecutions (South Australia))

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 21 December 2000 dismissing the appellant's appeal and, in lieu thereof, order that:

• (a) the appellant's appeal to that Court be allowed;

• (b) the appellant's convictions be quashed; and

• (c) there be a new trial.

1 Gleeson CJ and Callinan J. The appellant, and a co-accused Gerald David Preston, were convicted of the murder of two men and the attempted murder of another. The appellant contends that the trial judge failed to leave manslaughter to the jury as a possible verdict in relation to each of the two men who were killed, and that this constituted a wrong decision on a question of law. That contention (which was rejected by the Full Court of the Supreme Court of South Australia 1) is supported by the respondent. The difference between the parties to the appeal is whether the case is a proper one for the application of the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The principal questions for decision are whether, on the facts, there was a viable case of manslaughter to be left to the jury and, as it was put in Gilbert v The Queen2, whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder. Those two questions address the problem by reference to different stages of the proceeding, but they turn upon substantially the same considerations of law and fact. The trial judge left the case to the jury as murder (and attempted murder) or nothing. If there was no viable case of manslaughter to be considered, then there was no wrong decision on a question of law. If, on the other hand, there was such a case (as has been contended consistently by the prosecution) then the proviso will apply only if it is clear that a jury, properly instructed, would necessarily have convicted the appellant of murder (and attempted murder).

2 The essential facts may be summarised as follows. It is convenient (save for the purpose of dealing with one argument in relation to the proviso) to concentrate attention upon one only of the victims, Les Knowles. It is also convenient first to explain the case against Preston, who did the killing.

3 The prosecution case, accepted by the jury, was that Preston, a man of well-known violent propensities, was hired to kill Knowles. There was evidence that Knowles was the subject of police investigations in relation to drug dealing. He conducted a car repair workshop. There was evidence that he kept large amounts of cash there. The prosecution alleged that a man named Tognolini, and/or a group named the Hells Angels, wanted Knowles killed, and agreed to pay Preston to kill him. The appellant had a long association with Preston, but in a subservient role. The prosecutor put to Preston in cross-examination that the appellant was his ‘errand boy’. There was evidence that the appellant had a history of psychological problems and alcoholism. Preston told the police that the appellant was ‘thick and simple’.

4 At Preston's request, the appellant stole a van, and used it to drive Preston to the repair shop. Also at Preston's request, shortly before the pair arrived at the repair shop, the appellant made a telephone call to the shop to check that Knowles was there. Both men were disguised. Preston was armed with a loaded gun. He walked from the van into the repair shop, shot and killed Knowles and another man, and fired at a third. He then rejoined the appellant in the van and they drove off together. The appellant later destroyed the van.

5 The case against Preston was straightforward. So also was the case against the appellant, as it was left to the jury. The prosecution alleged that the appellant was a party to the plan to kill Knowles and that he was well aware of the intention with which Preston acted. In support of that case, the prosecution invited the jury to accept that the appellant must have known that Preston was armed with a loaded gun. There was evidence as to the process involved in loading and cocking the weapon, intended to show that it was very unlikely that Preston, who began shooting almost as soon as he entered the repair shop, could have put himself in a position to do that without the appellant's knowledge.

6 The appellant, who gave no evidence at the trial, made admissions to the police that he had stolen the van, driven Preston to and from the repair shop, made the telephone call to establish that Knowles was there, worn a hood to disguise his appearance, and later destroyed the van. He asserted, however, that he had no knowledge of Preston's intention to kill Knowles, and that he thought that what was involved was a robbery. He denied knowing that Preston was armed with a gun.

7 The proposition that the appellant did not know that Preston was armed was implausible. On his own admissions, the appellant knew that Preston, wearing a mask or hood over his face, was entering the car repair shop, where Knowles and a number of employees were present, for a hostile and criminal purpose. Even if that purpose was robbery, rather than murder, it would have required considerable audacity on the part of Preston to attempt the task unarmed. The appellant did not explain how he thought Preston might have carried out the robbery without a weapon. The man he was supposedly intending to rob was not a person to be trifled with; he was not alone; and car repair shops usually contain items which might be used to beat off an unarmed intruder. It was well open to the jury to reject the suggestion that the appellant did not know that Preston was carrying a loaded gun, and to conclude that, insofar as they were considering the hypothesis that the appellant believed that he was assisting a robbery, what was involved, to the appellant's knowledge, was an armed robbery.

8 The robbery hypothesis was evidently taken seriously by the jury. They asked questions directed to the possibility that Preston was carrying out a contract killing, but the appellant believed he was carrying out a robbery. Ultimately, they took several days to consider their verdict. The trial judge directed the jury that, in order to convict the appellant, the prosecution had to prove that Preston and the appellant shared a common purpose to kill Knowles, and had to exclude as a reasonable possibility that the appellant was acting with the purpose of participating in robbery.

9 The prosecution argued at trial, and on appeal, that such a direction was erroneous in two respects: first, the jury should have been told that, even on the robbery hypothesis, there was a view of the facts consistent with the appellant's guilt of murder; and secondly, that the jury should also have been told that, on the robbery hypothesis, they could convict the appellant of manslaughter. Counsel for the appellant now accepts, and asserts, that at least the second part of that argument is correct. The essence of the appellant's complaint is that, the case against him having been put to the jury as murder or nothing, there was a miscarriage of justice because the jury were deprived of the opportunity of considering an intermediate possibility, manslaughter.

10 Hayne J, in his reasons for judgment, has summarised the principles as to criminal complicity based upon participation in a common enterprise, as stated in McAuliffe v The Queen3. The Full Court considered those principles, but they rejected the alternative case of murder, or manslaughter, based upon an acceptance of the robbery hypothesis. Duggan and Bleby JJ, with whom Lander J agreed, said:

‘The prosecution also submitted to the trial judge that the alternative verdict of manslaughter should be left to the jury. It was said that if the jury found that Preston intended to commit the crime of murder, but Gillard contemplated that a robbery only might be committed and if Gillard was aware of the fact that Preston was carrying a gun, then there would be a sufficient basis for a finding that Gillard committed the offence of manslaughter. According to the submission, Gillard would be guilty of manslaughter in these circumstances if he was a party to the commission of an unlawful and dangerous act, namely, the presentation of the gun.’

11 They then turned to McAuliffe, and said that there had to be a meeting of minds in relation to the criminal design. If Preston had murder in mind, and Gillard contemplated a robbery only, it was difficult to identify a relevant common purpose. They said that they did ‘not think that the jury could find an agreement or understanding which would satisfy the requirement of a defined and common criminal purpose’.

12 The prosecution submission, in its reference to robbery, plainly meant armed robbery with a loaded gun as the weapon. For reasons already stated, it was clearly open to the jury to consider that, even if the appellant only contemplated robbery, that was the kind of robbery in question. Such a robbery is an act of serious violence. The presentation of a...