Gilham v R

Citation: Gilham v R [2012] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 25 June 2012
Judges: McClellan CJ at CL, Fullerton J, Garling J

Background

In the early hours of 28 August 1993, Stephen and Helen Gilham were stabbed multiple times and set alight in their home at Woronora, NSW. Their son Christopher was also found dead from stab wounds. The applicant, Jeffrey Gilham, told a neighbour at around 4:30 am that his brother had killed their parents and that he had killed his brother in response. He was subsequently charged with Christopher's murder, to which he pleaded guilty to manslaughter on the basis of provocation. That plea was accepted because the Crown could not disprove that Christopher had killed the parents.

A series of coronial inquests and police investigations followed over the next decade. A 1995 inquest found Christopher had killed the parents; a second inquest in 2000 found evidence capable of supporting a murder charge against the applicant; and a private prosecution was launched in 2001 before the DPP offered no evidence and the applicant was discharged. Following a third police investigation, an ex officio indictment was filed in 2006 and the applicant was tried for the murder of both parents.

In November 2008, a jury convicted the applicant of both murders and he was sentenced to life imprisonment on each count. He appealed against those convictions on 18 grounds, including errors in the conduct of the trial, improper expert evidence, prosecutorial misconduct, the reasonableness of the verdict, and the emergence of new evidence.

Legal Issues

• Whether the applicant's conviction for murdering his parents contravened the double jeopardy principle arising from his earlier acquittal for Christopher's murder
• Whether expert evidence concerning fire behaviour and demonstrations, wound patterns, and expected blood evidence was admissible and whether its probative value outweighed its prejudicial effect
• Whether the Crown Prosecutor conducted cross-examination and jury address in an improper manner, and whether that conduct caused a miscarriage of justice
• Whether the verdict was unreasonable or unsupported by the evidence
• Whether fresh evidence concerning carbon monoxide levels in the victims was credible and likely to have caused a jury to entertain a reasonable doubt
• Whether, having upheld the appeal, the court should order an acquittal or a new trial

Decision

Double jeopardy and benefit of acquittal: The court found that the rule against double jeopardy was not infringed by the murder prosecution. However, it held that the trial judge's directions failed to give the applicant the full benefit of his earlier acquittal for Christopher's manslaughter, which was an error requiring separate consideration.

Expert evidence: The court found that fire demonstration evidence and evidence about the likely behaviour of fire lacked sufficient relevance and that its probative value was outweighed by its prejudicial effect; it ought not to have been admitted. Evidence of similarity in the pattern of stab wounds was admissible to a point, but the Crown Prosecutor's use of that similarity as coincidence reasoning went further than the evidence permitted. Crucially, the evidence had not been admitted as coincidence evidence under section 98 of the Evidence Act 1995, and the failure to call an additional expert on wound similarity caused the trial to miscarry. Expert evidence about expected blood on the applicant and the murder weapon was, by contrast, properly admitted.

Prosecutorial conduct: The court found that aspects of the Crown Prosecutor's cross-examination and jury address were improper and undermined the trial judge's directions. However, considered in isolation, those matters did not themselves occasion a miscarriage of justice.

Verdict unreasonable: The court concluded, on an independent assessment of the evidence, that the verdict was not unreasonable. Any remaining doubt was capable of being resolved by the jury's advantage in directly observing the applicant's evidence.

New carbon monoxide evidence: The most decisive issue on appeal was fresh evidence concerning carbon monoxide levels detected post-mortem. The court found this evidence was not available at trial, was credible and plausible, and was likely to have caused a jury to entertain a reasonable doubt about the applicant's guilt. The carbon monoxide evidence undermined key factual premises of the Crown case, particularly the Crown's argument that Christopher could not have been upstairs during and after the fire was lit.

Retrial versus acquittal: The court divided on the appropriate remedy. McClellan CJ at CL (with Garling J agreeing) ordered a new trial. Fullerton J, joined by Garling J on the final orders, concluded that the weakened state of the Crown case, the history of prosecutorial conduct, and the oppressive cumulative effect of the proceedings on the applicant justified entering verdicts of acquittal. The orders ultimately made reflected the majority position.

Orders Made

The orders recorded in the provided text reflect different conclusions among the judges. The orders proposed by McClellan CJ at CL (and which form the formal orders) were:

• Appeal upheld
• Conviction for the murder of Helen Gilham quashed
• Conviction for the murder of Stephen Gilham quashed
• A new trial be ordered

Fullerton J (with Garling J agreeing) proposed that verdicts of acquittal be entered on both murder charges, rather than a new trial being ordered.

Key Takeaways

• Fresh evidence need not have existed at trial; where it is credible and would likely have caused a jury to entertain a reasonable doubt, it can support a successful conviction appeal even in a circumstantial case of considerable complexity.
• Expert opinion evidence on wound pattern similarity was admissible to show similarity, but an expert's further opinion that the similarity constituted an "underlying pattern" crossed the line into inadmissible territory. Relying on that pattern as coincidence reasoning without first admitting the evidence under section 98 of the Evidence Act 1995 was a further error.
• The Court of Criminal Appeal confirmed that a trial judge must direct a jury to give an accused the full benefit of an earlier acquittal; directions that fall short of that standard constitute a ground of appeal.
• Prosecutorial misconduct in cross-examination and jury address, while found to be improper, did not automatically result in a finding of miscarriage of justice; the court assessed each instance in the context of the trial as a whole.
• In exercising the discretion whether to order a retrial or enter acquittals, the court weighed the cumulative history of prosecutions, the weakened state of any future Crown case, the public expense of a third lengthy trial, and the principle that the criminal justice system should not operate as a source of unacceptable oppression.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Evidence Act 1995 (NSW), particularly section 98 (coincidence evidence)
- Legal Profession Act 2004 (NSW)

Cases:
- Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
- Burrell v R [2009] NSWCCA 193
- Causevic v R [2008] NSWCCA 238
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
- Director of Public Prosecutions v Shannon [1975] AC 717
- Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
- Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
- Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
- Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
- Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308
- HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
- Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
- Justins v R [2010] NSWCCA 242; (2010) 204 A Crim R 315
- Kanaan v R [2006] NSWCCA 109
- King v The Queen (1986) 161 CLR 423
- R v Taufahema [2007] HCA 11; (2