Gilbert v The Queen: 2000

(High Court of Australia) Gilbert was tried for murder. The judge directed the jury that manslaughter was not an alternative verdict. The jury, correctly directed on the ingredients of murder, convicted.
Held: The court was aksed whether this was a substantial miscarriage of justice. Gleeson CJ and Gummow J recognised the difficulty of knowing whether a misdirection is advantageous to one party or the other and held that while it could, as a general rule, be assumed that juries understand and follow judicial directions, it need not be assumed that juries were unaffected by matters of possible prejudice when making their decisions. An appellate court should not assume that juries adopted a mechanistic approach to the task of fact-finding, oblivious of the consequences of their conclusion: ‘The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.’
Callinan J recognised that a jury room might not be a place of undeviating intellectual and logical rigour, and concluded: ‘The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.’
McHugh J (dissenting) said that the verdict of a properly directed jury should be respected: ‘The argument for the appellant is a claim that this Court should proceed on one of two bases, each of which necessarily involves an assumption that, if manslaughter had been left as an issue, the jury might have disregarded their sworn duty to give a verdict in accordance with the evidence. The first assumption is that, if manslaughter had been left, the jury might have convicted of manslaughter even though they knew, because of the trial judge’s directions, that the appellant was guilty of murder. The second assumption is that the jurors were not convinced beyond reasonable doubt that the appellant knew that his brother intended to kill or to inflict grievous bodily harm on Linsley, that they knew therefore that he was not guilty of murder, but that they nevertheless convicted him of murder rather than acquit him and see him go free. In my respectful opinion, as a matter of legal policy, no court of justice can entertain either assumption.
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.’
Hayne J (dissenting): ‘Nor does the conclusion which I have reached depend upon some judicial assessment of what was acknowledged to be a strong case against the appellant. It is a conclusion which depends entirely upon giving due weight to the verdict of the jury in light of what they were told by the judge and assuming (there being no basis for suggesting otherwise) that they did their duty conscientiously.
The trial to which the appellant was entitled was a trial according to law. There were two questions for the Court of Appeal. First, was there a trial according to law (and all agreed that there was not). Second, and no less important, was the question whether a substantial miscarriage of justice had actually occurred. That second question is not concluded by pointing to the fact that there was a misdirection and that there was, therefore, not a trial according to law. The existence of the proviso denies that the fact of misdirection will, in every case, require an order for retrial. Nor can this second question be answered by making an assumption that the jury might have chosen to disregard what they were told by the judge. Such an assumption is unwarranted. It is an assumption which suggests that emotion (whether induced by the eloquence of counsel or otherwise) might have supplanted the collective common sense and careful reasoning that jurors bring to bear upon a difficult task. It is an assumption which, if effect is given to it, turns the judge’s charge to a jury into a ritual incantation which appellate courts must examine for formal correctness but which appellate courts are free (if not bound) to assume a jury may have disregarded.’


Callinan J, Gleeson CJ and Gummow J, McHugh and Hayne JJ


(2000) 201 CLR 414




CitedMraz v The Queen 1995
(High Court of Australia) Fullagar J: ‘A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them.’ . .

Cited by:

ExplainedGillard v The Queen 2003
(High Court of Australia) Hayne J explained the effect of the majority decision in Gilbert: ‘In Gilbert, a majority of the Court concluded that if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant’s . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243348