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Supreme Court 30 November 2007

R v Jeffrey GILHAM

[2007] NSWSC 1396

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE WHETHER TRIAL SHOULD BE STAYED.

Citation: R v Jeffrey Gilham [2007] NSWSC 1396
Court: Supreme Court of New South Wales (Common Law Division, Criminal List)
Date: 30 November 2007
Judge(s): Howie J

Background

The accused faced trial on two counts of murder arising from the deaths of his parents in August 1993, an incident in which his brother also died. The background to the prosecution was complex: the accused had previously been charged only with the manslaughter of his brother, pleaded guilty to that charge in 1995, and was placed on a good behaviour bond. He was never charged by police in relation to his parents' deaths at that time.

Years later, the Director of Public Prosecutions filed an ex-officio indictment in the Supreme Court charging the accused with the murder of both parents. The accused sought a permanent stay of those proceedings, which Howie J refused in March 2007. The accused appealed to the Court of Criminal Appeal, which was specially constituted with five justices given the significance of the issues raised. That court dismissed the appeal on 26 November 2007, though it granted leave on the double jeopardy grounds before ultimately rejecting them.

The accused then sought a stay of the trial before Howie J pending a proposed special leave application to the High Court. The trial was listed to commence on 4 February 2008, with jury empanelment projected for 11 February 2008 following a week of pre-trial determinations.

  • Whether the trial should be stayed to allow the accused to pursue a special leave application to the High Court arising from the Court of Criminal Appeal's dismissal of his appeal on double jeopardy grounds
  • Whether the prospects of obtaining special leave from an interlocutory judgment were sufficient to justify a stay
  • Whether the trial timetable could be managed to preserve the accused's opportunity to seek relief from the High Court without a formal stay being granted

Decision

Howie J acknowledged there was merit in the Crown's argument that the High Court generally will not entertain special leave applications from interlocutory judgments except in exceptional circumstances. On that basis, the Crown submitted the prospects of special leave were low and any stay would be futile. Howie J did not fully resolve that question, noting the case was factually unusual and had extended double jeopardy principles to what he described as probably their furthest limit.

A practical resolution emerged during argument. The trial timetable itself provided a natural window: a week of pre-trial determinations meant no jury would be empanelled until around 11 February 2008. High Court special leave application days were scheduled for 14 December 2007 and 8 February 2008, meaning the accused had a realistic opportunity to seek expedition and to approach a High Court judge for a stay before empanelment.

Howie J gave an undertaking that no jury would be empanelled before 11 February 2008. On that basis, both parties accepted the position, the formal stay application was withdrawn, and no determination was made on the merits of a stay. Howie J indicated that any stay sought after 11 February 2008 should be pursued in the High Court.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal, specially constituted by five justices including the Chief Justice, had dismissed the accused's appeal on double jeopardy grounds while granting leave on that issue, reflecting the unusual and significant nature of the case.
  • An application for a stay of criminal proceedings pending a special leave application to the High Court faces a high threshold where the underlying judgment is interlocutory, given the High Court's general reluctance to entertain special leave from interlocutory decisions.
  • A formal stay was not required where the existing trial timetable provided sufficient time for the accused to approach the High Court for expedition and interim relief before jury empanelment.
  • Howie J's undertaking that no jury would be empanelled before 11 February 2008 was central to the resolution, illustrating how trial management mechanisms can avoid the need for formal stay orders in some circumstances.
  • Where a stay is sought after the point agreed upon by the parties, the appropriate forum for that application is the High Court, not the trial court.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F (the provision under which the accused appealed the refusal of a permanent stay to the Court of Criminal Appeal)

Cases:
- No specific cases were cited by name in the text provided, though Howie J referred generally to High Court authority concerning special leave applications from interlocutory judgments and to his own earlier judgment of 21 March 2007 refusing a permanent stay.