Gillard v The Queen

HIGH COURT OF AUSTRALIAGLEESON CJ,GUMMOW, KIRBY, HAYNE AND CALLINAN JJKEVIN WAYNE GILLARD   APPELLANTANDTHE QUEEN  RESPONDENTGillard v The Queen [2003] HCA 6412 November 2003A200/2002ORDER1.   Appeal allowed.2.   Set aside the orders of the Full Court of the Supreme Court of South Australia made on 21 December 2000 dismissing the appellant's appeal and, in lieu thereof, order that:(a)the appellant's appeal to that Court be allowed;(b)the appellant's convictions be quashed; and(c)there be a new trial.On appeal from the Supreme Court of South AustraliaRepresentation:D H Peek QC with J A Richards for the appellant (instructed by Lipson Street Chambers)S A Millsteed QC with A P Kimber for the respondent (instructed by Director of Public Prosecutions (South Australia))Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSGillard v The QueenCriminal law – Murder – Joint criminal enterprise – Appeal against conviction – Misdirection by trial judge – Failure to leave manslaughter to jury – Whether jury properly instructed would necessarily have returned verdict of guilty of murder – Whether failure to leave manslaughter to jury occasioned substantial miscarriage of justice.Criminal Law Consolidation Act 1935 (SA), s 353(1).GLEESON CJ AND CALLINAN J.   The appellant, and a co-accused Gerald David Preston, were convicted of the murder of two men and the attempted murder of another.  The appellant contends that the trial judge failed to leave manslaughter to the jury as a possible verdict in relation to each of the two men who were killed, and that...