Court of Criminal Appeal New South Wales Medium Neutral Citation Gilham v R [2012] NSWCCA 131 Hearing Dates 28, 30 November 2011, 1 December 2011 Decision Date 25/06/2012 Before The Court at [1] McClellan CJ at CL at [647] Fullerton J at [662] Garling J at [677] Decision 1. Appeal upheld. 2. Convictions quashed. 3. Verdicts of acquittal entered on both counts Catchwords CRIMINAL LAW - appeal - conviction - double jeopardy - incontrovertibility of verdict - whether conviction of applicant for murder of his parents controverted applicant's acquittal for murder of his brother - whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal - whether trial judge failed to instruct jury to give applicant "full benefit" of earlier acquittal - whether trial judge erred by not staying proceedings - rule against double jeopardy not infringed - trial judge's directions denied applicant full benefit of earlier acquittal. CRIMINAL LAW - appeal - conviction - expert evidence - admissibility - relevance - prejudicial effect - whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant - whether probative value of evidence outweighed by prejudicial effect - probative value outweighed by prejudicial effect - evidence ought not to have been admitted - whether expert opinion evidence on similarity of pattern of stab wounds admissible - evidence of similarity admissible - opinion that similarity constituted an underlying pattern inadmissible - Crown Prosecutor's reliance on pattern of similarity amounted to coincidence reasoning - evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 - whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice - failure to call witness caused trial to miscarry - whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence - whether probative value of evidence outweighed by prejudicial effect - evidence admissible as expert opinion evidence - probative value outweighed prejudicial effect. CRIMINAL LAW - appeal - conviction - whether Crown Prosecutor cross-examined applicant in improper manner - whether Crown Prosecutor addressed jury in an improper manner - whether Crown Prosecutor undermined directions of trial judge - aspects of Crown Prosecutor's conduct and address improper -no miscarriage of justice occassioned. CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - circumstantial evidence - circumstantial evidence to be considered as a whole - doubt capable of being resolved by jury's advantage in seeing and hearing evidence of applicant - no reasonable doubt on independent assessment of evidence. CRIMINAL LAW - new and fresh evidence - whether evidence available at time of trial - whether evidence credible, plausible or capable of belief - whether evidence likely to have caused jury to have entertained a reasonable doubt about guilt of applicant - new evidence concerning carbon monoxide likely to have caused jury to entertain a reasonable doubt. CRIMINAL LAW - appeal - conviction - whether applicant should be acquitted or retried - discretionary considerations. Legislation Cited Criminal Appeal Act 1912 Criminal Appeal Rules Director of Public Prosecutions Act 1986 Evidence Act 1995 Legal Profession Act 2004 Cases Cited Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Burrell v R [2009] NSWCCA 193 Causevic v R [2008] NSWCCA 238; 190 A Crim R 416 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Director of Public Prosecutions v Shannon [1975] AC 717 Direction of Public Prosecutions (Nauru) v Fowler (1984) HCA 48; (1984) 153 CLR 317 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437 Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317 Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308 Gill v Walton (1991) 25 NSWLR 190 Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Justins v R [2010] NSWCCA 242; (2010) 204 A Crim R 315 Kanaan v R [2006] NSWCCA 109 King v The Queen [1986] HCA 59; (1986) 161 CLR 423 Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McCullough v R [1992] Tas R 43 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Anderson (1991) 53 A Crim R 421 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 R v Arp [1998] 3 SCR 339 R v Bikic [2002] NSWCCA 227 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 R v Darby [1982] HCA 32; (1982) 148 CLR 668 R v Degnan [2001] 1 NZLR 280 R v Gibson [2002] NSWCCA 401 R v Gilham [2007] NSWSC 231; (2007) 190 A Crim R 303 R v Gilham [2009] NSWSC 138 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Grdic [1985] 1 SCR 810 R v Hilder (1997) 97 A Crim R 70 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Honeysett (1987) 10 NSWLR 638; (1987) 34 A Crim R 277 R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 R v Murre [2001] NSWCCA 286 R v O'Donohue [2001] NSWCCA 458 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 R v Pernich (1991) 55 A Crim R 464 R v Perry (1990) 49 A Crim R 243 R v Ronen [2004] NSWSC 1298 R v Storey [1978] HCA 39; (1978) 140 CLR 364 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5 R v Z [2001] 2 AC 483 Ramsay v Watson [1961] HCA 65; 108 CLR 642 Randall v The Queen [2002] 1 WLR 2237 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Reid v The Queen [1980] 1 AC 343 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603 Velevski v R [2002] HCA 4; 76 ALJR 402 Vella v R (1990) 2 WAR 537 Ward v R (1981) 3 A Crim R 171 Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Wood v R [2012] NSWCCA 21 Category Principal judgment Parties Jeffrey Gilham (Applicant) Crown Representation Solicitors: Paladin Law Pty Ltd (Applicant) Solicitor for Public Prosecutions (Crown) Counsel: C Steirn SC/P Barham (Applicant) L Babb SC/N Noman (Crown) File Number(s) 2006/2766 DECISION UNDER APPEAL Court/Tribunal Supreme Court Before Howie J Date of Decision 11/03/2009 Medium Neutral Citation R v Gilham [2009] NSWSC 138 Court File Number(s) 2006/2766 JUDGMENT 1THE COURT: The applicant was convicted after trial of the murder of his parents. He appeals against his convictions and seeks leave to appeal against his sentence. 2The Court is unanimous in its conclusions with respect to each of the grounds of appeal against conviction. However, we have reached different conclusions with respect to the appropriate orders. This judgment sets out our views in relation to the grounds of appeal. We have prepared and publish separate judgments in relation to the appropriate orders. 3At or around 4 am on 28 August 1993, Mr Stephen Gilham and Mrs Helen Gilham were murdered in the home they occupied at Woronora with their two sons, Christopher, aged 25, and the applicant, Jeffrey, aged 23. 4The family was highly respected in the community. Both Christopher and the applicant were well regarded by both friends and neighbours for their scholastic achievements, their generally exemplary behaviour and character, and their loving relationship with their parents. The applicant was gregarious and popular, with marked success as a yachtsman. He was apparently his father's favoured son. Christopher was more quiet and sensitive although not without a supportive circle of friends. He was a keen and successful fencer and a talented pianist. 5The family home was built on a split level with the upper and lower floors connected by an internal spiral staircase. External stairs provided access through a garden to the Georges River. 6A double carport and single garage were located at street level, which housed a yacht as well as the motor vehicle the applicant customarily drove and his father's motor vehicle. The upper level of the house was accessed via stairs from the street, which connected with a side deck (or wooden walkway) that extended the length of the house along the upper level to glass sliding doors through to a living area. A dining table was immediately to the left on entry, and in relatively close proximity, but further into the room, there was a piano.