Gillard 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 trial for murder, the verdict of guilty of murder did not preclude the possibility that the jury may have failed to apply the instructions they were given. No party in this appeal sought to reopen the decision in Gilbert. It follows from what was decided in Gilbert that, in deciding here whether no substantial miscarriage of justice has actually occurred and thus, whether the proviso to s353(1) of the Criminal Law Consolidation Act applies, account may not be taken of the findings implicit in the jury’s verdicts at the appellant’s trial. It must be assumed that the jury may have chosen to disregard the instructions they were given, and convict the appellant of murder and attempted murder, rather than return verdicts of not guilty. Once it is accepted that the jury may have disregarded the instructions they were given, it is not permissible to reason, as the respondent submitted, from the fact that the jury returned verdicts of guilty on all three counts to the conclusion that the jury must therefore be taken to have applied the trial judge’s instructions. Once it is said, as it was in Gilbert, that the jury may have disregarded the instructions they were given, it cannot be said that some levels of disobedience may be less probable than others.’
Kirby J: ‘Having secured, but lost, the advantages of the dichotomy which he urged at his trial, the appellant now wants another trial with a further chance to contest the indictment under new rules. It is easy to feel a sense of distaste about allowing such a course to succeed.’


Kirby J


(2003) 219 CLR 1




ExplainedGilbert 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 . .

Cited by:

CitedRegina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243352