Gilham v The Queen [2008] HCATrans 85 (8 February 2008)

Last Updated: 19 February 2008

[2008] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S560 of 2007

B e t w e e n -

JEFFREY GILHAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 11.47 AM

Copyright in the High Court of Australia

MR P.R. BOULTEN, SC: If the Court pleases, I appear with MR P.D. LANGE and MR S.J. BUCHEN for the applicant. (instructed by Murphy’s Lawyers)

MR L.A. BABB, SC: May it please the Court, I appear with MS K.N. SHEAD for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ: Yes, Mr Boulten.

MR BOULTEN: This application raises questions of significance in relation to the nature of the remedies that would flow from demonstrating the existence of double jeopardy.

GLEESON CJ: When is the trial fixed for?

MR BOULTEN: The jury is scheduled to be empanelled next week, your Honour.

GLEESON CJ: Yes.

MR BOULTEN: The court below held that the current proceedings would be inconsistent with the earlier proceedings in a central and significant way. Four of the judges in the Court of Criminal Appeal found that the applicant was facing a relevant double jeopardy being put to trial on the new charges, yet the majority found that there would be no abuse of process even though the principles of incontrovertibility, double jeopardy and finality applied to the case.

GLEESON CJ: Mr Boulten, if you are right in the legal principles that you say are to be applied, will they still be available to you if your client is convicted and there is an appeal?

MR BOULTEN: They will, but if the trial proceeds, then the very evil which the stay is seeking to prevent will occur. The whole course of the trial will indeed call into question the acquittal on murder and will generate controvertibility itself. All of the evidence that will be tendered will be tendered to prove not just that the applicant killed his mother and father, but he also was responsible for the murder of his brother.

GLEESON CJ: What would be the ground of appeal that you would raise on an appeal if there were a trial and conviction to invoke these principles?

MR BOULTEN: Similar to that which was raised by Mr Carroll, that the case was an abuse of process and should have been stayed. The other practical difficulty is that this is in effect a plea in bar, not really a plea in bar but as good as a plea in bar. This is in the nature of a plea in bar. When an accused person seeks to invoke the pleas in bar, they cannot plead in a normal sense to the indictment, they cannot plead not guilty. It is necessary to invoke the plea in bar.

GLEESON CJ: This suggests to me that even if we were against you in this application, we should say as little as possible about the merits of your argument because it is one that you want to keep open.

MR BOULTEN: Well, yes, indeed. The difficulty about the proceedings that are foreshadowed is that there is absolutely no guidance whatsoever at the moment to the way in which the proceedings should be conducted and yet to comply with the principles of double jeopardy, incontrovertibility and finality. In particular, there is real controversy about what directions should be given to the jury about the acquittal of the applicant of the murder of his brother.

GLEESON CJ: Did we not say something about the concept of the benefit of an acquittal in a decision in Washer?

MR BOULTEN: Yes, but in Washer’s Case the issues that were raised were not central, indeed, were not relevant to the issues that needed to be determined at the trial where directions were sought. Here they are absolutely central and at the focus of the allegation that is put against the applicant.

This is a case where initially the Crown accepted the plea of guilty to manslaughter of the murder of the brother on the sole basis that they could not negative provocation, the provocation being, of course, that it was the brother who murdered the parents. Now, 13 years after the event, the DPP, the respondent, has changed its mind and now wishes to present a case which demonstrates that the applicant was the sole person responsible for the murder of all three.

GLEESON CJ: What would happen in a case like this if originally the Crown had said, “We cannot negative provocation”, meaning, “thereby on the information presently available to us we cannot negative provocation”, and 10 years later your client confessed to the murder of his parents, in circumstances where the reliability of the confession was beyond argument? What would happen then?

MR BOULTEN: If he had been put to trial and had been acquitted, then the principles of double jeopardy would apply. We say that the operation of section 394, which enabled a short circuiting of the formal trial process, has the same legal effect, that there was an acquittal, it was not just a technical acquittal, but it was an acquittal for all purposes, and that irrespective of the offence with which he has been charged or the cogency of the evidence that is sought to be led in the new trial, the proceedings would give rise to the scandal of controversy, conflicting decisions, the principle of finality, would be invoked.

GLEESON CJ: I would have thought the example that I had given would be scandalous; if he could not be tried for the murder of his parents after he had confessed to it.

MR BOULTEN: Well, your Honour, that is the exact factual situation from Carroll’s Case, almost exactly.

GLEESON CJ: I said a confession of unarguable reliability. I was trying to eliminate any dispute of fact about the confession.

MR BOULTEN: If Carroll’s Case is the proposition for anything, it is authority for the proposition that, irrespective of the cogency of the evidence that arises subsequently, it would still be an abuse of process to proceed with a new trial.

GLEESON CJ: But that was in respect of the same crime, leave aside the perjury aspect of the evidence that he gave at the trial. The jeopardy was in jeopardy of being convicted of the homicide, if I can use that expression neutrally, of a particular victim, but here he has never been tried for the murder of his parents. Your argument is that, because of what occurred in relation to the homicide of the brother, he now cannot be tried for the murder of his parents. My question was, suppose that yesterday he made a confession of unarguable reliability of guilt of murder of the parents, your case is he can never be tried?

MR BOULTEN: It would be the same irrespective of the strength of the evidence. The principle flows from the line of cases going back many decades in this Court.

GLEESON CJ: If you are right, and you may be or you may not be, but if you are right about that, that point remains open to you on appeal if he is convicted, does it not?

MR BOULTEN: If we are right, then the scandal will be generated even greater if we go through the course of a trial, he is convicted, and then the Court eventually overturns the conviction because we are right.

GLEESON CJ: The reason I am asking you these questions, as you will have divined, Mr Boulten, is because of the very emphatic statements that we have made over the years about our unwillingness to intervene before a trial has taken place.

MR BOULTEN: Yes, your Honours. We say that this is an exceptional case because this is a case that goes to virtually a plea in bar. This is in the nature of an appeal against a final order. It generates its own particular practical difficulties because of the dilemma it will pose to the applicant about what to plead when the jury is empanelled and we say that this is quite dissimilar from those usual interlocutory appeals which go to some step in the process of an ordinary trial.

We say that this is different from, for instance, a judgment that deals with the admissibility of evidence and we say it is quite different from an appeal which is trying to guess or fore guess the possibility of a miscarriage of justice that might flow from a conviction. We say that the whole process calls in question the verdict in 1993, the judgment of the court, and that the process is an abuse of the court and in that case there should be a grant of special leave now before the issue is determined.

The High Court granted special leave in Rogers’ Case in almost comparable circumstances in advance of a trial where the issue involved was more confined than this, where the question was whether evidence that had been excluded at a completed trial previously could properly be tendered in the new trial. We say that this is a more obvious example of where this Court should grant special leave to intervene in similar circumstances where we say that the principles of finality and incontrovertibility apply.

There is real tension in the judgment of the Court of Criminal Appeal. Four judges determined that there could properly be a discretion or a decision made by weighing competing policy issues even though the principles were invoked, even to the point where it was accepted, apparently, that the trial judge would need to take steps to preserve the legitimacy of the acquittal of the murder of the brother.

We say that if that judgment is correct, that leads to the problem that we have formulated as ground 2, that inevitably there would be a need to direct the jury that the applicant should be acquitted and if that is so, then, in our respectful submission, the proceedings are doomed to fail. That is a classic case where there should be a stay of proceedings and the whole process should not take place at all.

There is left by this judgment in the Court of Criminal Appeal the decision of the majority that if you do succeed in demonstrating double jeopardy in a central issue of the trial, that nevertheless there is a discretion to forestall an application for a stay of proceedings. In those circumstances,
we submit that the judgment of the Court of Criminal Appeal would have wide application, certainly in New South Wales, and would have great influence in jurisdictions elsewhere. We say that the judgment is incorrect and that the Court should intervene at this early stage of the process. If the Court pleases.

GLEESON CJ: Thank you, Mr Boulten. Yes, Mr Babb.

MR BABB: Your Honours, the granting of special leave at this time would have the effect of fragmenting the course of the criminal proceedings, the trial due to commence next week, the voir dire argument having taken place this week and decisions having been made about the evidence. In distinction to the case of Rogers, this case is a matter that relates to events that took place in 1993 and we are coming up to 15 years passage of time. In Rogers the record of interview in question occurred in 1988, the first trial occurred in 1989 and the second proceedings were in 1992. It was a relatively short passage of time. It can be distinguished on that basis.

In this case there are no exceptional circumstances for interfering in an interlocutory decision and the numerous statements of this Court would be determinative in that regard. The Court of Criminal Appeal was correct in holding that the trial judge did not err in refusing the application for a permanent stay of the indictment. Contrary, we say, to the Court of Criminal Appeal’s findings, the most significant basis for refusing the application was one which the trial judge relied upon and that is that there is no manifest inconsistency between the current proceedings and the previous verdict as they relate to separate conduct and that was a specific finding of the chief judge at common law, Justice McClellan, and distinct offences.

The pending trial relates to the murder of the applicant’s parents and the previous verdict related to the killing of the applicant’s brother. Incontrovertibility of an acquittal relies not upon any fact that may have been raised in a previous proceeding but in the verdict of the previous proceeding. This Court, as recently as the case in Washer, has reiterated that fact and relied upon – and this is at page 192 of the application book. It is clearly set out that:

no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury so as to make that fact a res judicatum.

Your Honours, in this case the verdict of acquittal for murder of the brother says nothing about who murdered the applicant’s parents. It does not stand for the proposition that the applicant killed his brother in provocation after discovering that his brother killed his parents. In fact, the verdict of acquittal for murder is mute on the question of whether the applicant killed the brother at all.

The point is most clearly made when one compares the elements of the various offences, the killing of the brother to the killing of the applicant’s parents, and it is necessary to direct attention to the elements. There is no inconsistency when one does that. The verdict of conviction of manslaughter of the brother resolved finally the applicant’s liability for the killing of the brother and that is all it resolved.

The incontrovertibility of the previous verdict in relation to the killing of the applicant’s brother is not challenged by these proceedings and that is clearly because the applicant is not being put on trial in relation to the brother. It will not be a fact in issue in these proceedings. The facts in issue in the current proceedings will be who killed the applicant’s mother and father and what was the state of mind of the person who killed those two people. Those issues were not determined by the previous proceedings.

Manifest inconsistency in relation to a second proceedings warranting a permanent stay depends on there being a close and direct relationship between the factual matters at issue in the two proceedings such that they can be said to be founded on one and the same incident and that was the case in The Queen v Carroll. It was one and the same incident. In that case, in relation to the perjury offences, they were commenced solely upon the sworn denial of the killing of Deidre Kennedy and - - -

GLEESON CJ: He has been charged with perjury in effect for going into the witness box and saying, “I am not guilty”.

MR BABB: “I am not guilty”, exactly. In the present prosecution, it is certainly not founded on one and the same incident which is the subject of the previous verdict. It is based on two distinct acts or incidents, separate from each other and separate from the killing of the brother. It is clear from the nature of the allegations themselves that the stabbing of the father 29 times in the bedroom is a completely separate incident and separate conduct from the stabbing of the mother 17 times in the lounge room.

GLEESON CJ: I thought that what this Court said in Washer would have indicated some need for precision in the concept of inconsistency.

MR BABB: Yes, your Honour.

GLEESON CJ: I mean, from one point of view, the evidence that was led and the inferences that the jury were being asked to draw in the trial with which we were concerned were, in a colloquial sense, inconsistent with the
failure of the prosecution in respect of an earlier and different offence, but the point that was made was, it was a different offence.

MR BABB: That is exactly the case in this case, your Honour. In terms of the argument that is put forward in reply to their only two factual scenarios, that is supportive of the respondent’s argument that at this time, at a time where the application is to stay proceedings at a preliminary stage, that necessarily asserts that the very institution of the proceedings are an abuse of process and that is not made out by the prior verdict and looking at the prior verdict in relation to the current proceedings.

My learned friend argues that the proceedings will run in a certain way in his reply. That simply cannot be known at this stage. It is hypothetical, and one of the main reasons - - -

GLEESON CJ: There is a paradox, it seems to me, if in fact he had been tried and simply found not guilty, forget manslaughter, forget provocation, simply found not guilty of the murder of his brother, what inconsistency would there have been between that verdict and a later charge that he was guilty of the murder of his parents?

MR BABB: There would be no inconsistency.

GLEESON CJ: It would be paradoxical if he was better off because instead of being found not guilty altogether he was found guilty of manslaughter.

MR BABB: Yes. They are my submissions, your Honour.

GLEESON CJ: Thank you. Yes, Mr Boulten.

MR BOULTEN: The paradox that the Chief Justice just referred to is nevertheless not problematic in the sense that this was a manifest inconsistency because the element of the charge of the offence for which he was convicted focused squarely on who killed the parents and it is that which gives rise to the central inconsistency - - -

GLEESON CJ: That was because of the defence of provocation.

MR BOULTEN: It was.

GLEESON CJ: Suppose he had been tried for the murder of his brother and simply found not guilty, not guilty of murder, not guilty of manslaughter?

MR BOULTEN: Then we would not be here because it is a completely different universe.

GLEESON CJ: That produces an odd result. It produces the result that, in terms of double jeopardy, he is better off because he was found guilty of manslaughter than he would have been if he had been found not guilty altogether.

MR BOULTEN: But that does not focus upon the fact of the circumstances giving rise to the charges both then and now. There was only really two practical real alternatives in fixing criminal liability for all three deaths. Either the appellant, the applicant, was responsible for the deaths of his parents or the deceased’s brother was responsible for the deaths of the two parents, in which case the issues that needed to be determined in the first issue, in the first trial, was whether the applicant was guilty of manslaughter or murder. There was never ever going to be any issue in relation to an outright acquittal.

GLEESON CJ: Am I right in thinking that it was the applicant who raised the issue of provocation from his own account of how he came to kill his brother?

MR BOULTEN: Yes, your Honour.

GLEESON CJ: So because of the way the applicant explained the death of his brother, the consequence that results is that he now cannot be charged with the killing of his parents?

MR BOULTEN: Your Honour, irrespective of the reason behind an acquittal, if there is an acquittal, then it cannot be challenged. It is a matter of law that does need to focus on the centrality of the issues. The issues are related to the elements of the charge. As all of the judges in the court below have found, this was a completely central issue in the earlier case, going to the disposition of the verdicts and in those circumstances this controverts it squarely. He was in jeopardy of murder then and this puts him in double jeopardy in relation to a finding that he is guilty of the murder of his brother now. Double jeopardy, incontrovertibility and finality and in those circumstances special leave should be granted.

GLEESON CJ: The trial of the applicant for the murder of his parents is fixed to commence next week. The applicant seeks leave to appeal against the decision of the Court of Criminal Appeal declining a permanent stay of proceedings. This Court has repeatedly and emphatically stated its general reluctance to intervene in pending criminal proceedings, save in exceptional circumstances.

Senior counsel for the applicant is right to say that this case is different from the ordinary run of interlocutory appeals having regard to the nature of the relief sought. Even so, we are not persuaded that in the interests of justice it is necessary or appropriate that this Court should intervene. Because of arguments that the applicant seeks to reserve, it is undesirable that we state any further our views on the merits of the arguments that failed in the Court of Criminal Appeal. The application for special leave to appeal is dismissed.

We will adjourn for a short time to reconstitute.

AT 12.15 PM THE MATTER WAS CONCLUDED