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14
Court of Criminal Appeal 20 April 2015

Gall v R; Gall v R

[2015] NSWCCA 69

HomicideFirearms & weaponsPublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL OFFENCE OF MURDER OFFENDER DID NOT GIVE EVIDENCE DIRECTION CONCERNING FACT THAT CO CONVICTION APPEAL DISMISSED

Citation: Gall v R; Gall v R [2015] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 20 April 2015
Judges: Hoeben CJ at CL, R A Hulme J, Davies J

Background

Kevin Gall was convicted of murdering Neil Green and discharging a firearm with intent to cause grievous bodily harm to Michael Fox at industrial premises in Girraween on 16 April 2010. The Crown's case was that Kevin Gall approached the back fence of the premises and fatally shot the unarmed deceased, who had come to retrieve property he claimed was his. Kevin Gall's defence was that he acted to protect himself and his father, believing the deceased and Fox were armed.

Bruce Gall, Kevin's father and the owner of the Girraween premises, was convicted as an accessory after the fact to murder. He was found to have received, harboured, maintained and assisted Kevin Gall after the murder. Both applicants had pleaded guilty to several other charges before trial, including perverting the course of justice and possessing prohibited weapons and firearms.

Kevin Gall received a total sentence with a non-parole period of 24 years. Bruce Gall received a non-parole period of 4 years and 6 months. Both appealed against conviction and sentence.

  • Whether the trial judge should have given a "consciousness of guilt" direction in relation to Kevin Gall's post-offence conduct
  • Whether the trial judge should have directed the jury that it could not use Bruce Gall's silence (his failure to give evidence) against Kevin Gall
  • Whether the murder verdict against Kevin Gall was unreasonable or unsupported by the evidence
  • Whether Kevin Gall's sentence was manifestly excessive
  • Whether the trial judge's direction on the elements of accessory after the fact was correct, specifically whether Bruce Gall needed to know the precise offence committed by the principal
  • Whether Bruce Gall's sentence was infected by errors, including in the accumulation of sentences and in findings about planned or organised criminal activity

Decision

Kevin Gall: Conviction Appeal

The Court dismissed all three grounds of Kevin Gall's conviction appeal. On Ground 1, the Court found there was no occasion for a consciousness of guilt direction, as the post-offence conduct relied upon by the Crown did not unambiguously point to guilt in a way that required such a direction. On Ground 2, the Court found that no direction was necessary regarding Bruce Gall's failure to give evidence, as there was no real risk the jury would reason adversely to Kevin Gall from his co-accused's silence. On Ground 3, the Court concluded the murder verdict was not unreasonable. The evidence, including that of Michael Fox, was sufficient to support the jury's finding beyond reasonable doubt, and the jury was entitled to reject Kevin Gall's self-defence claim.

Kevin Gall: Sentence Appeal

The Court found no error in the sentencing judge's findings of fact or assessment of the objective seriousness of the offences. The sentencing judge had appropriately considered relevant mitigating factors, and there was no error in the accumulation of the murder sentence and the discharge of firearm sentence. The sentence appeal was dismissed.

Bruce Gall: Conviction Appeal

The Court identified an error in the trial judge's direction on the elements of accessory after the fact. The direction, as given, did not clearly require the jury to find that Bruce Gall knew the precise offence committed by Kevin Gall. The Court confirmed that, under the current common law in NSW, an accessory after the fact must know the precise crime committed by the principal offender. However, applying the proviso, the Court was satisfied that no substantial miscarriage of justice resulted from the misdirection, given the strength of the evidence, and dismissed the appeal. The Court noted that the NSW Law Reform Commission has recommended statutory reform on this point, and that other jurisdictions have taken a less demanding approach to the knowledge requirement.

Bruce Gall: Sentence Appeal

The Court rejected all grounds of the sentence appeal. The sentencing judge's findings of fact were open on the evidence, the treatment of the prohibited firearm possession offence as part of planned or organised criminal activity was supported, and Bruce Gall's guilty pleas had been taken into account appropriately. Any technical errors identified did not necessitate resentencing. The appeal was dismissed.

Orders Made

In relation to Bruce Gall:
- Leave to appeal against conviction granted; conviction appeal dismissed
- Leave to appeal against sentence granted; sentence appeal dismissed

In relation to Kevin Gall:
- • Grant leave to appeal against conviction but dismiss the conviction appeal
• Grant leave to appeal against sentence but dismiss the sentence appeal

Key Takeaways

  • Under NSW common law, a person convicted as an accessory after the fact to murder must be shown to have known the precise offence committed by the principal offender. This requirement distinguishes NSW from other Australian jurisdictions that have introduced statutory definitions or offences with a broader knowledge standard.

  • A consciousness of guilt direction is not required in every case where post-offence conduct is in evidence. The Court of Criminal Appeal confirmed there must be an identifiable occasion for such a direction before the trial judge is obliged to give it.

  • No direction is required about a co-accused's failure to give evidence unless there is a genuine risk the jury will use that silence as evidence against a different accused.

  • In dismissing Bruce Gall's conviction appeal despite identifying a misdirection on the elements of accessory after the fact, the Court applied the proviso, finding the evidence so strong that no substantial miscarriage of justice occurred.

  • The NSW Law Reform Commission's recommendation for a statutory provision governing accessory after the fact liability remains unimplemented. The Court noted that the existing common law requirement for precise knowledge of the principal offence has attracted academic criticism and sits out of step with Victorian and UK approaches.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 29, 33A(1)(a), 319, 349(1)
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1958 (Vic), s 325
- Criminal Law Act 1967 (UK), s 4

Cases:
- 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
- House v R [1936] HCA 40; 55 CLR 499
- Kaminic v R [2014] NSWCCA 116
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- McGeown v R [2014] NSWCCA 314
- Mulato v Regina [2006] NSWCCA 282
- Nguyen v R [2013] HCA 32; 298 ALR 649
- 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