Gilham v R [2012] NSWCCA 131 (25 June 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/131.html

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.