Gall v R; Gall v R

HOEBEN CJ at CL:

When Kevin Gall was arraigned before Justice Adamson on 27 August 2010 he pleaded not guilty to counts 1, 3, 4 and 10 and guilty to counts 5, 6, 7, 8 and 9.

His father, the applicant Bruce Gall, was charged with the following offences:

When Bruce Gall was arraigned before Justice Adamson on 27 August 2010 he pleaded not guilty to counts 2, 3 and 4 and guilty to counts 9 and 10.

The applicants were tried jointly. Their trial commenced on 27 August 2012 and the jury retired to consider their verdicts on 12 September 2012. The jury returned with verdicts on 14 September 2012 as follows:

The applicants were sentenced on 23 November 2012. Kevin Gall received a total sentence of imprisonment with a non-parole period of 24 years commencing 16 November 2010 with a balance of term of 9 years. On the same day the applicant, Bruce Gall, was sentenced to imprisonment with a non-parole period of 4 years and 6 months with a balance of term of 1 year and 6 months. Both applicants have appealed against conviction and sentence.

Kevin Gall relies upon the following grounds of appeal against his conviction:

It was the Crown case that in early 2010 Kevin Gall was in possession of some items belonging to Neil Green (the deceased). Several attempts by the deceased and others on his behalf to collect these items had been unsuccessful. On 16 April 2010 the deceased and Michael Fox went to industrial premises at Girraween owned by Bruce Gall and occupied by Kevin Gall in a further attempt to retrieve the items. They were unarmed. Kevin Gall, who was not at the premises when they arrived, approached the back fence unannounced and fatally shot the deceased. He then fired at Mr Fox with intent to murder him as he made his escape.

Kevin Gall’s case was that he operated a business at premises at Wiltona Place, Girraween which premises were owned by his father. He and the deceased had been friends but they had a falling out in 2009. Before his death, the deceased had been pressing him to sign a document which would assist the deceased in overcoming a drug supply charge which he was facing. Kevin Gall was unwilling to do so. On 16 April 2010 he learned that the deceased and another man were looking for him at the Girraween premises. He armed himself and went to those premises because he was worried about the safety of his father and his own safety. When he arrived at the premises, he shot the deceased in order to protect his father who was running from the deceased and because he believed that the deceased and the other man were carrying guns.

Kevin Gall gave evidence that he met the deceased in 2004 or 2005 through a mutual friend, Peter Van Straalan. They shared a common interest in motor bikes and it was expected that he could use his skills as a machinist to make parts for bikes. Until they fell out, the deceased was a regular visitor to Wiltona Place. During that time the deceased brought persons to Wiltona Place so that Kevin Gall could do work on their bikes and he and the deceased socialised together. He knew that the deceased was a member of the Nomads Motorcycle Club.

On an occasion in 2006, the deceased brought a pistol to him which he repaired and test fired into a vacant allotment next door. Later the deceased asked him to increase the capacity of certain machine pistols but he was unable to do so. Kevin Gall said that the deceased asked him to hold a machine pistol, along with ammunition, a silencer and a bullet-proof vest, which he did.

There was a dispute as to the cause of the falling out between the applicant and the deceased.

An important Crown witness was Michael Fox, the person who accompanied the deceased to Wiltona Place. Mr Fox said it was his understanding that the friendship had soured over some drug charges. He understood that Kevin Gall and the deceased had been partying with prostitutes and others in a hotel room and that when they left the hotel, police had pulled the car over and found drugs in the boot. The deceased, who was driving, was charged with possession of the drugs but he maintained that they were not his.

It was also Mr Fox’s understanding that Kevin Gall had some “stuff” that the deceased said belonged to him but which he had refused to return. Mr Fox offered to go to the Girraween premises to see what he could do to obtain the return of the “stuff”. He said that he did not know what the “stuff” was and did not want to know.

There was police evidence that in April 2008 the deceased had been stopped while driving a car with Kevin Gall as his passenger and that various prohibited items had been found in the car including drugs. As a result, the deceased was charged with a number of offences including the possession of prohibited drugs but no charges had been brought against Kevin Gall.

Mr Jones, who was a friend of the deceased, was aware of the falling out between the deceased and Kevin Gall. It was Mr Jones’s understanding that Kevin Gall was to sign a statement as a result of which the deceased expected that the drug charges against him would be dropped. Mr Jones also knew that the deceased considered that Kevin Gall had property of his that he wanted to retrieve. Although he had some suspicions about the property, he did not know precisely what that property was.

There was evidence from Mr Lapich that some time in January or February 2010 he spoke to the deceased who asked him whether he had seen Kevin Gall. The deceased said “He has something of mine. I want it back. Tell him to ring me”. A couple of weeks later, Mr Lapich spoke to Kevin Gall at Wiltona Place and said “Neil wants you to ring him” to which he said “I don’t want to talk to him”.

Kevin Gall’s evidence was somewhat different. He said that some months before 29 March 2010 he met with the deceased and two persons, who were people associated with the Nomads. They told him that they wanted him to swear an affidavit, which would help the deceased. They did not tell him what was going to be in the affidavit. They wanted him to go to a solicitor’s office and sign it. Kevin Gall said that he did not go. He was adamant that he was not going to “take the wrap” for the deceased’s drugs.

The first time Mr Fox went to the Girraween premises, Kevin Gall was not there but Bruce was. Mr Fox said that he asked Bruce to get the “stuff” and then he would pick it up from him. Bruce said that he did not know anything about it. Mr Fox left his business card in the letterbox. A few days later, Mr Fox rang the home phone number at the Girraween premises. Bruce answered and said that the boys said to tell him “to get fucked”. The reference to “the boys” was to Kevin Gall and Troy Ryan.

The following is based upon the evidence of Mr Fox as to what happened on that day. At about lunchtime on 16 April 2010 he drove to the deceased’s home in Westmead in his blue Ford Laser. He asked the deceased if he was “carrying”, meaning armed, and the deceased said that he was not. He and the deceased drove to Wiltona Place. He left the keys in the ignition and had his wallet, passport and personal effects in the car but had brought no weapons.

Only Bruce Gall was present. They first saw him standing in the driveway. The deceased told him to get the boys on the phone and to tell them to come over. Mr Fox could tell that Bruce was scared. He told Bruce that they were not armed and pulled up his shirt to show him. The deceased asked Bruce if he had any guns lying around and he said “no”. They took a look around the workshop but they did not see anything.

Bruce asked what the property was that he wanted returned. The deceased said it was “two and a half”. When Bruce wanted that clarified, the deceased said “two and a half million” and he mentioned a couple of firearms. Mr Fox said there was “no way in the world” that he knew that they were there for an amount like that.

Bruce went inside and rang Kevin Gall. He told them that he had spoken to Kevin and that he was coming. Mr Lapich was in the office when they arrived. He said that he wanted to go to a nearby workshop and the deceased offered to drive him there. Mr Fox waited with Bruce at the premises. After the deceased returned they waited another 10 minutes. The deceased said “they might come back like this” and made a shooting action with his hand. At that point Mr Fox realised that there was more to what was going on and he asked Bruce where he kept his guns.

Mr Fox gave the following evidence as to what next happened:

Mr Fox said that he was next to a 6 – 8 foot high metal fence. He managed to get over the fence and went down 15 - 20 feet on the other side, got off the ground and ran for his life. There were three more shots as he ran and he felt gravel bouncing off the back of his legs. He cut his hand and arm when he went over the fence. Mr Fox ran to Portia Road, spoke to some people who let him use a phone to call a taxi and from there went to a friend’s workshop in Rouse Hill.

Mr Fox did not inform the police about what had happened. He hoped the deceased had not been killed and had been dumped at a hospital or maybe escaped. He spent the next few days trying to locate the deceased. He went back to the Girraween premises late that night to try to recover his car but it was nowhere to be seen. Neither he nor the deceased made any threats to Bruce or Kevin that day.

When cross-examined Mr Fox maintained that he did not know what the “stuff” was and said that as long as it was not drugs he did not care. He denied that he was there to lean on Kevin Gall to get him to sign a statement. He had never spoken to Bruce or Kevin Gall about signing a statement. He had only heard about the deceased’s drug charges in general conversation from others, not from the deceased.

When the deceased said “two and a half million” that day, he realised that the matter was a lot more serious than he first thought. He said that the deceased had suffered a head injury and left a lot of things out that he [Fox] should have known that day. The deceased had not told him about the gravity of what they were there for. The deceased had not told him that other persons had previously gone to Wiltona Place to speak to Kevin Gall.

Just before the deceased was shot, Mr Fox walked to the back of the building but the door was locked. He was coming back when he saw Bruce running towards the shed with the deceased running after him.

Mr Fox thought it was likely that the deceased was dead or seriously injured. He did not call the police because if it turned out to be two and a half million dollars there were a lot more parameters to the situation that he did not know about. He did not know how the bike clubs dealt with their affairs and chose to stay out of it. He strongly disagreed that Bruce was not holding a gun. He refused to identify whom he first told about the shooting and refused to answer the proposition it was somebody from the Nomads. He did not make a statement until 9 November 2010. Even then he did not want to make a statement and it was not given willingly. He was under extreme duress from the Crime Commission to make the statement. He did not willingly provide the police with information because he was not privy to all the laws, rules and regulations of the bike club. He knew that the deceased would not have spoken to the police, so he just kept his mouth shut.

Mr Fox disagreed that he went to Wiltona Place as “hired muscle”. He said that if the deceased had wanted to use muscle, he would have used the Nomads who were a lot more intimidating than he was. He denied that he had a gun that day. He denied that Bruce called out “Look out, he’s got a gun”. He estimated that it took between 20-30 seconds from the first shot being fired to the last shot. He denied that Kevin Gall yelled out to him to get on the ground before firing at him.

Kevin Gall’s evidence as to what happened that day was different. He agreed that in 2009 he was travelling in a car driven by the deceased when they were stopped by the police. They had been partying at a nightclub and afterwards stayed the night at a hotel in the city. It was the next day that they were pulled over by the police for speeding. He had no idea what was in the car. When the police searched the car, he and the deceased were taken to the station and the deceased was charged. He was never made aware that the deceased had been charged with a “supply drugs” offence. After that incident, he and the deceased had less and less contact because he did not like what the deceased was getting into. He retained possession of a machine pistol which the deceased had given him.

A few months before the deceased was due in court, he sent him a text message saying “Adrian and Lionel” wanted to see him. Adrian and Lionel were important members of the Nomads bike club. When Adrian and Lionel came to the Girraween premises, they sought to intimidate him and said that they wanted him to sign an affidavit for the deceased “to get him off the court thing”. He was supposed to go to a solicitor’s office to sign it, but he did not attend.

Sometime later, Peter Van Straalen and another man came to his workshop on separate occasions asking for the deceased’s belongings and saying that the deceased wanted to see him. Mr Lapich told him that the deceased wanted to speak to him and he said that he did not want to see him. He said that because he did not want to have anything to do with making a statement. When Peter Van Straalen asked for the deceased’s belongings, he knew that he meant the machine pistol, the ammunition, silencer and bulletproof vest which he was holding for the deceased.

Kevin Gall said:

In early 2010 Bruce told him that Mr Fox had been to the workshop looking for him, that he had put a business card in the letterbox and that he wanted to speak to him.

The deceased had once told him about an incident he had involving guns. The deceased said that he was chased by police and that he had taken a shot at someone. On another occasion, Kevin Gall had taken a registered firearm with him to a property where they were using their trail bikes. Both he and the deceased had fired some shots using the firearm.

On the morning of 16 April 2010 he was at home when he saw some missed messages from Mr Lapich on his phone. When he read those messages, he immediately booked a taxi and left for the Girraween premises taking with him a .45 pistol. He had been taking that pistol everywhere in a shoulder bag after he missed the meeting with the solicitor to sign the document. He had it with him for protection because the deceased was high up in the Nomads club. He believed that the deceased was capable of violence and that he had connections with people who could do things for him. He had seen the deceased bash an older person on a previous occasion, punching him to the face several times. This was the only time he had seen the deceased engage in violent activity although he had heard that on another occasion, the deceased had gone to someone’s house and knocked the person’s tooth out.

The firearm which the applicant took with him was possibly a FK 45. It was a blackish, semi-automatic firearm with a magazine capacity of 10-12. It had seven rounds in it that day. While he was in the taxi, he received a text message from Mr Lapich which said “Don’t come, Neil’s here”. He was worried about his father being there on his own and he asked if Troy was there to which Mr Lapich responded “No”. He did not make, nor receive, any other messages while in the taxi.

He got out of the taxi near the Girraween premises, but not at them. He was worried about the Nomads hanging around the workshop. He believed that he would be taken by them or hurt in some way. He received a call from his father who sounded very worried and distressed and said “Neil is here and something very serious is about to happen”. Kevin Gall replied “I’ll be there soon”.

He ran down the grass laneway, which ran from where he had left the taxi nearly all the way to the workshop. It was the fastest way he could get to his father. He then jumped a gate and ran across a paddock to the fence near the factory carport. He could not see anything at first and then his father came into view. He was at the corner of the green shed and then Michael Fox appeared with the deceased. Kevin Gall’s version of what then happened was as follows:

He jumped the fence and chased Mr Fox because he believed he was going to do something else. He tried to stop him from leaving because he did not know what he was planning to do. He said “get on the ground” several times but Mr Fox would not comply. Before he could react, Mr Fox had jumped over the fence. He fired two shots into the air but Mr Fox did not stop.

He said:

The evidence of Mr Jones and Mr Lapich confirmed that at about 1pm the deceased used Mr Fox’s blue Ford Laser to drop Mr Lapich off at P & L Cycles. Mr Jones worked there as a motorbike mechanic. After the deceased had left P & L Cycles, Mr Lapich telephoned Kevin Gall and advised that the deceased was at the Girraween premises and was “with a big guy”.

There was evidence from persons who worked and lived near the Girraween premises as to what they heard and saw.

Ms Schensher was working on her computer in an upstairs office at Wiltona Place next to the Gall premises in April 2010 when she heard yelling and about four or five loud bangs. They sounded like gunshots. She heard a male voice yelling something like “get down on the ground” then she heard the gunshots or bangs.

Ms Schensher went to the window and looked in the direction of the Gall premises because that was where the noise was coming from. She knew Bruce Gall as someone she would wave and say hello to. She said:

She thought she probably heard two shots. There were a couple of seconds between the man jumping over the fence and the other man coming over. When the man with the gun came to the fence, “he was sort of leaning on it”. She was not sure if he was standing on something. Her view of the man became obscured by a storage unit which was located at the back of the premises. She agreed that at the time she heard the shots being fired, she could not see the man who was running away. She saw that the shots were being fired in the direction she had seen the man heading before he disappeared from view.

Victor Gilbert was Ms Schensher’s boss. He was on the ground floor of the business premises when on 16 April 2010 he heard three shots. At that time he was on the phone to Terry Banders who was in Western Australia. Mr Banders thought that he heard three or four shots over the phone close together. Mr Gilbert thought the sound of the shots was coming from the Galls’ premises. Mr Gilbert looked in the direction of where the shots came from. He saw a man jump over the fence and he saw Kevin Gall on the fence holding a gun and firing shots at the man who jumped the fence. Once the man had jumped the fence, Mr Gilbert could no longer see him because he [Mr Gilbert] was at ground level.

Mr Gilbert obtained Bruce Gall’s phone number from another employee and rang him. His evidence was:

Mr David Attwood had an inflatable boat business near to the Galls’ premises. He knew Bruce Gall as his neighbour and owned a twenty foot container which was kept on the premises. On 16 April 2010, early in the morning, he heard loud shouting from a single male voice. He then heard more than one gunshot. He had been in the Army and Navy and was familiar with firearms. The gunshots came from the direction of Bruce’s factory. He was concerned for Bruce and he walked out of his factory to see what he could see.

As he was walking out, he dialled triple 0 and asked for the police. He stood on some strips of wood and had a clear view over the fence. He turned his phone off because of what he saw. He heard Kevin Gall say “stay there, stay underneath it”. Immediately after that, a man “barrel rolled” over the fence and a few seconds later the heads of Kevin and Bruce appeared. The man was moving extremely fast and basically he just got over the top and partially rolled over the fence and he was gone.

His evidence was:

Kevin Gall gave evidence as to what happened after the shooting. The body of the deceased was on the walkway near the office. He was not moving. The van into which he placed him was a white Mazda with false number plates. He had bought it years earlier and it was unregistered. Mr Fox’s car was parked in the back towards the house. He left everything in the car. He had no idea where his father was while he was putting the body of the deceased into the van. He was in a panicked state and was terrified that the Nomads would be around very soon. He was worried for his own safety and that of his father.

He drove for four hours to a place called Coolongolook near Forster. He drove off the road onto a track into the bush. He buried the deceased using a shovel from work. On the way back, he pulled the gun apart and threw the pieces out the window. He estimated that he was at the burial site in the bush for about 10 - 12 hours.

He later tried his “absolute best” to show police where he had buried the body but could not find the spot. He estimated that he was away from the Girraween premises for somewhere between 18 and 24 hours.

He first spoke to Peter Van Straalen two days after the shooting. Peter came around and wanted to know what was happening. He did not tell him anything but asked if he could help out with Mr Fox’s car, which was still at the Girraween premises and still had everything in it. Mr Van Straalen suggested getting rid of the car because he was worried about Mr Lapich’s DNA being in it. He was worried that Kevin Gall would not get rid of the car properly and wanted to do it himself.

There were six CCTV cameras operating at the workshop at Wiltona Place on 16 April 2010. After the shooting, Kevin Gall did not look at the CCTV because there was no need. The CCTV was set up to record only at night time. He was not able to comment on evidence that the CCTV hard drive seized by police had no data recorded on it. He had “no idea” about that.

He believed that the fired cartridge cases that the police located at the Girraween premises on 7 May 2010 and 16 November 2010 were those he and the deceased had fired many years earlier when testing the machine pistol, silencer and magazine which were found at the premises. After shooting the deceased, he collected some of the five cartridge cases and squashed them in a vice and threw them in a bin.

On 23 April 2010 Kevin Gall’s home was firebombed by the Nomads. His girlfriend called the police and they were already there when Kevin Gall came home. He did not tell the police the entire truth about what had happened because the Nomads were involved and he was extremely fearful of them. Thereafter Kevin Gall, his girlfriend and Troy resided at the Girraween workshop.

On 6 May 2010 the police searched the Girraween premises and located a black 9mm calibre automatic weapon, a silencer and a magazine holding 11 cartridges. This was the machine pistol which Kevin Gall was holding for the deceased. He was also in possession of a .32 automatic self-loading pistol. He was in possession of those weapons because his house had been firebombed by the Nomads. He was worried about his own safety and that of his father, his girlfriend and Troy.

In cross-examination Kevin Gall agreed that he had completely pulled the white van to pieces within a week of disposing of the deceased’s body. This was because he had not wrapped the body in anything and there was blood in the back of the van.

Kevin Gall realised that he would have to do something about the Ford Laser belonging to Mr Fox. He painted the car white using spray cans, changed the number plates and cut out the VIN and the engine number. He started to modify the car as soon as he got back from burying the deceased’s body. He dealt with Mr Fox’s car before destroying the van he used to transport the deceased’s body.

The police subsequently found the Ford Laser and it was common ground at the trial that subsequent to the killing of the deceased, Kevin Gall had tried to disguise that car.

He denied having any conversation with his father concerning blood in the carport area. He said “I didn’t see any blood there”.

Ms Schensher went back to the window to see what was happening next door on a number of occasions. After the shooting, she saw Bruce and it looked to her like he was using a hose of some sort and was washing the carport area:

Mr Buhagiar gave evidence that he used the corner of the back shed on the Girraween premises and rented the space from Bruce Gall. He was not at work on Friday, 16 April 2010 but when he returned on Monday, 19 April he notice that an area under the carport next to the office had been cleaned. He spoke to Bruce Gall about it saying:

Mr Edward Clarke worked in security systems and alarm installations. He had known Bruce Gall for many years. In 2009 he installed security cameras for him at the Girraween premises. On Sunday, 18 April 2010 he received a telephone call from Bruce Gall to say three of his cameras were not working. He attended the property next day and found that the power supply for the camera in front of the house had blown. Two cameras in the shed were powered by the same power supply which meant that they had stopped working as well. He did not ask Bruce what had happened but determined that the power supply was not working and replaced it. He denied changing any of the hard drives for the cameras at the premises. (He had been accused of changing the hard drives by the police, an accusation which he denied.) He said that should a hard drive break down, he would send it back to the manufacturer to get changed.

In June 2010 Kevin Gall was present at a meeting at Peter Van Straalen’s house with Peter, Mr Lapich and Bruce. The conversation was recorded by a police listening device (exhibit AC). Mr Lapich was worried and said “If I messaged you or rang you and said Neil is here they would hold me responsible for his death”. Kevin Gall understood that to mean that Adrian and Lionel from the Nomads would hold Mr Lapich responsible for the death of the deceased. Kevin Gall advised Mr Lapich to get rid of his phone. He gave that advice because Mr Lapich was worried and he wanted to ease his mind and provide a solution for him.

When he was asked about what he had said to Mr Lapich in Exhibit AC Kevin Gall gave this evidence:

On page 19 of Exhibit AC Bruce Gall made suggestions to Mr Lapich of ways in which he could persuade the police that he had not been at the Girraween premises on 16 April 2010. He suggested that the text messages could have been sent while he was walking from Mr Van Straalen’s premises to the station.

Page 20 of Exhibit AC set out a discussion between Bruce Gall and Mr Van Straalen, the effect of which was to indicate that Bruce Gall did not believe that the deceased and Mr Fox had any guns, or any other weapons, but rather that they were looking for his guns and that they wanted to search his premises to look for them.

Kevin Gall was cross-examined as to the contents of p 32 of Exhibit AC. The following was recorded on the exhibit:

In cross-examination Kevin Gall was taken to p 37 of Exhibit AC and the following exchange between him and Mr Van Straalen:

Kevin Gall explained that conversation by saying that the CCTV cameras at the Wiltona Place premises only recorded at night via infrared because it was pointless to record during the day. He was unaware that by the time the police seized the hard drive for the CCTV, the hard drive had been removed and a different one had been installed. He had no idea about that and did not know anything about it (T.522).

Kevin Gall accepted that no such complaint had been made during the trial and that leave pursuant to r 4 of the Criminal Appeal Act 1912 was required. The applicant submitted that because this error had given rise to a miscarriage of justice, leave should be granted.

Kevin Gall submitted that this ground related to the evidence concerning:

Kevin Gall reviewed what her Honour had said about each of those matters in her summing up:

Kevin Gall submitted that because the jury found him guilty of murder and of discharging a firearm with intent to cause grievous bodily harm, they must have rejected his evidence that he did not actually shoot at Mr Fox and must have rejected his evidence that he shot at the deceased to protect his father whom he said had told him the deceased had a gun. That being so, he submitted that inferentially the jury must have used his post offence conduct to corroborate the evidence of Mr Fox, causing them to reject his evidence on these questions and to have concluded that his actions demonstrated an intent to kill the deceased and to shoot at Mr Fox. He submitted that such a line of reasoning was the same as that involving lies told out of a consciousness of guilt (R v Cook [2004] NSWCCA 52 at [25]).

He submitted that her Honour invited this type of reasoning when she said in her summing up:

He submitted that in those circumstances the jury should have been directed that they could only use these matters against him if they found that he did these things out of a consciousness of guilt of the actual offences with which he had been charged and not out of fear of retribution from the Nomads. He submitted that on the facts of this case that was a critical consideration and the failure to direct the jury as to consciousness of guilt constituted a miscarriage of justice requiring a re-trial. He submitted that with respect to the murder charge, this post offence conduct was not logically available to distinguish between a consciousness of guilt of murder, as opposed to manslaughter, on the basis of excessive self-defence and a direction should have been given by her Honour to make the distinction clear.

In order to properly assess this ground of appeal, it is necessary to understand the rationale behind the need for a “consciousness of guilt” direction by a trial judge. A helpful analysis of that rationale is to be found in the judgment of Simpson J (Ipp JA and Adams J agreeing) in R v Cook.

In a case involving the offence of threatening to inflict actual bodily harm with an offensive weapon with intent to have sexual intercourse, the Crown made it clear that it was going to rely upon evidence of flight by the accused to indicate consciousness of guilt. At [21] Simpson J set out what Gleeson CJ had said in R v Heyde [1990] 20 NSWLR 234 as follows:

Thereafter, Simpson J set out the conditions to which Gleeson CJ had referred and added one of her own:

As Simpson J pointed out at [25] those conditions, which were referred to in the context of lies indicating a consciousness of guilt, are readily adaptable to other conduct which could rationally lead to the same conclusion. Her Honour said:

In other words, the rationale behind the need for a consciousness of guilt direction by a trial judge is that the particular conduct relied upon by the Crown, while being capable of allowing a legitimate inference of guilt, may also be readily explained by another innocent or less culpable motivation. When that rationale is kept in mind, a proper understanding of the issues which arose in this trial makes it clear that there was no need for a consciousness of guilt direction by her Honour and that no miscarriage of justice has occurred by her Honour not having done so.

Before her Honour commenced her summing up, there was a discussion with trial counsel as to its content. The overwhelming inference is that no counsel at trial considered that a consciousness of guilt direction was necessary, otherwise they would have raised the issue. It is trite to observe that not every case in which evidence of post offence conduct is adduced requires a consciousness of guilt direction. The direction is only required when it is necessary in order to ensure a fair trial in the light of the issues and evidence in the trial.

There was no question in this trial of the post offence conduct of Kevin Gall “corroborating” the evidence of Mr Fox or any other Crown witness. In any event, the evidence was not capable of doing so. Such an approach misunderstands the fundamental issue in the trial.

Kevin Gall admitted that he had shot the deceased. He admitted that he fired shots thereafter and that Mr Fox was running away. This was at a time when there was eyewitness evidence confirming not only that Mr Fox was running away but that Kevin Gall appeared to be shooting in his direction. The relevant actus reus was established. The crucial issue at trial was whether the Crown had negated Kevin Gall’s contention that he had carried out these actions in order to defend himself and his father out of a genuine fear of the Nomads.

The issue before the jury was the intention of Kevin Gall at the relevant time. There was no issue as to whether or not he had carried out the relevant act. On his case, the apparently sinister actions of shooting at both the deceased and Mr Fox had an innocent or less culpable explanation. The issue for the jury was whether the Crown had negated that less culpable explanation to the relevant standard, i.e. beyond reasonable doubt. Part of the Crown case to achieve that result was its reliance upon the post offence conduct. The issue was not whether a less culpable explanation for the post offence conduct was available – it was and it constituted the basis of Kevin Gall’s defence. The jury had to decide whether the Crown had excluded that less culpable explanation.

The difference between the cases of the Crown and Kevin Gall was stark. On the Crown case, he shot the deceased to remove an adversary. On Kevin Gall’s case, he did so out of fear of what might happen to his father and himself. An important part of the Crown case was the post offence conduct to establish Kevin Gall’s intention. When the issue before the jury was as clear as this, to have given a consciousness of guilt direction would have needlessly complicated the question which the jury had to decide. It would have involved a circularity of reasoning, i.e. the jury could only be satisfied as to consciousness of guilt if they were also satisfied that Kevin Gall had the intent necessary for murder.

It would involve the triumph of form over substance and an empty exercise in semantics to require a trial judge in the circumstances of this case to give a direction to the jury that the post offence conduct of Kevin Gall, while capable of giving rise to an inference of guilt of murder, was also capable of giving rise to a less serious or even innocent inference and for that direction to be couched in consciousness of guilt terminology. This is because that very issue was the fundamental question for the jury to decide. They were well aware of the competing issues as to intent as a result of the addresses by counsel and her Honour’s comprehensive summary of the competing cases in relation to which there has been no complaint. The evidence of Kevin Gall’s post offence conduct was simply part of the Crown’s case to rebut his contention that he had acted out of fear and in self-defence.

Kevin Gall’s submission that the evidence of his post offence conduct could not distinguish between a consciousness of guilt for murder or manslaughter is misconceived. At no time was it suggested by any counsel or her Honour to the jury that the post offence conduct could be used in this way or was capable by itself of establishing guilt of any particular offence. It was simply part of the Crown’s overall case to establish Kevin Gall’s intention at the relevant time and to establish the negative proposition beyond reasonable doubt that Kevin Gall did not personally believe that it was necessary for him to shoot at the deceased to defend his father and himself.

Her Honour’s summing up as to manslaughter was at [274] – [285]. No complaint as to this part of the summing up was made at trial, nor in the appeal, nor could there be.

Her Honour gave clear, accurate and comprehensive directions as to the state of mind of Kevin Gall at the time of offending and as to the onus and burden of proof. She gave all the necessary warnings. She was not required to do any more and in particular, she was not required in the circumstances of this case to say anything about “consciousness of guilt reasoning”. I would grant leave to raise this ground of appeal but dismiss it.

Kevin Gall accepted that leave was required pursuant to r 4 to rely upon this ground since this issue was not raised at trial. He submitted that since this ground raised a potential miscarriage of justice, leave should be granted.

Kevin Gall submitted that there was a risk that the jury would misuse the fact that Bruce Gall did not give evidence in support of his account. He submitted that there was a risk that the jury might have used the fact that Bruce Gall did not give evidence that he had told him that the deceased had a gun, as indicating that he [Bruce Gall] had not said any such thing. Kevin Gall submitted that if the jury reasoned in that way, this would almost certainly have led the jury to convict him of murder. He submitted that what her Honour said in the summing up at [40] – [44] was insufficient since it only related to the effect of Bruce Gall not giving evidence in the case against him. It said nothing about what use the jury could make of that fact in the case against him [Kevin Gall].

Kevin Gall submitted that Bruce Gall’s failure to give evidence corroborating what he [Kevin Gall] had said and her Honour’s failure to explain the implications of that to the jury were grossly prejudicial to his case in circumstances where his father was not a compellable witness in that case. Kevin Gall submitted that the jury should have been directed in the clearest terms that they must not use the silence of Bruce Gall against him and that it would be quite unfair and wrong for them to do so. He submitted that her Honour should have explained that he [Kevin Gall] was not in a position to require his father to give evidence in his trial and that his father might have quite independent reasons why he did not want to give evidence in the presentation of his own case that had nothing to do with the presentation of Kevin Gall’s case.

Her Honour said the following in relation to Bruce Gall not giving evidence:

Those directions by her Honour were given in clear and, with respect, forceful terms. Of particular importance were the directions at [44] – [45]. Her Honour’s directions that the election not to give evidence could not be used to fill gaps in the Crown case and that the jury should not speculate as to what might have been said in evidence if Bruce Gall had given evidence, are important. There is no reason why the jury would have disregarded those directions had they thought about the effect on Kevin Gall’s case of Bruce Gall not giving evidence.

Against that background, there is no reason to suppose that the jury used the fact that Bruce Gall did not give evidence against Kevin Gall. There is nothing about the conduct of the trial, the directions that were given or any submissions made that would give rise to such a reasoning process. The ground of appeal can only be based upon speculation.

On this issue, it is also useful to have regard to what her Honour said about separate trials:

This direction, taken with the direction in relation to Bruce Gall not giving evidence, make it most unlikely that the jury acted in the way suggested by the ground of appeal. It should also be noted that in the course of the trial on a number of occasions the jury were clearly and accurately directed on the onus and burden of proof. These directions stressed that there was no onus on the accused but that it was for the Crown to prove his guilt.

The assertion in submissions that Bruce Gall’s silence was “overwhelmingly and grossly prejudicial” and that as such required the direction now sought is not borne out by the conduct of the trial. There was nothing even faintly suggestive of the need for such a direction in the addresses of counsel, in the discussions between counsel and her Honour and in the questions received from the jury.

I would grant leave to rely upon this ground of appeal but the ground has not been made out.

When this ground of appeal was raised with senior counsel for Kevin Gall, he made it clear that he was not relying upon this ground as a separate and freestanding ground. He advised that the ground depended for its success on the matters raised in support of Ground 1. It was for this reason that no submissions, either oral or written, were made in respect of any aspects of the evidence said to give rise to any of the verdicts against Kevin Gall being unreasonable.

That being so, the failure of Kevin Gall to succeed on Ground 1 means that he must also fail on this ground.

Kevin Gall was sentenced as follows:

The overall effect of the sentence was a head sentence of 33 years with a non-parole period of 24 years to date from 16 November 2010. In the course of her sentencing judgment, her Honour noted that were she to set a separate sentence for murder she would have set a non-parole period of 20 years and that she only reduced same by reference to the overall non-parole period and the principle of totality.

Her Honour reviewed the factual background to Kevin Gall’s offending in terms similar to those set out in this judgment. In relation to his subjective circumstances, her Honour found that he was born in 1978 and was aged 34 at the time of sentence (November 2012). In 1998 he had completed an apprenticeship and obtained a TAFE Certificate in Mechanical Engineering after completing a four year course. He had no significant prior criminal convictions and had not previously served a custodial sentence. He did not give evidence in the sentence proceedings.

In relation to the murder offence her Honour found that Kevin Gall’s motive was a desire to rid himself of an unwanted adversary. Her Honour found that the jury verdict showed that it rejected the proposition that he had killed the deceased to defend or protect his father. She assessed the offence at the middle of the range of seriousness for an offence of murder.

Her Honour took into account as an aggravating factor that Kevin Gall had disposed of the body of the deceased which was never found. She rejected his evidence that he did so because of fear of retribution by the Nomads and found that he did so to ensure that the body could not be examined.

Her Honour accepted that the offence was planned in the sense that Kevin Gall chose to approach the Girraween premises unobtrusively so that his arrival would not be easily detected. She took into account that he used a pistol from a satchel in which he had carried it for months since the cessation of his friendship with the deceased. Her Honour noted that he had the pistol in his hand ready to fire as he approached the premises.

Her Honour found as a mitigating factor that the offence had been provoked by the victim in that he had gone to the premises with Mr Fox demanding Kevin Gall’s presence. Her Honour also found that both Mr Fox and the deceased spoke to Bruce Gall in tones which were both aggressive and confrontational. Her Honour rejected the proposition that Kevin Gall was a person of good character and rejected the submission that he was genuinely remorseful.

Her Honour found that Kevin Gall had good prospects of rehabilitation.

Kevin Gall submitted to her Honour that his sentence should be reduced because of the degree to which the administration of justice had been facilitated by the conduct of his defence, i.e. by disclosures and admissions made pre-trial and during the trial. This meant that the trial had been significantly shortened. Her Honour accepted that his case had been properly and efficiently run which meant that many witnesses did not need to be called. Her Honour also accepted that in his evidence Kevin Gall had made admissions, particularly as to post offence conduct. Her Honour was not prepared to accept that he had made a genuine attempt to locate the deceased’s body. In the circumstances of the case, her Honour was not disposed to reduce his sentence by reason of those matters.

Kevin Gall submitted that her Honour’s finding as to his motivation to commit the offence of murder was inconsistent with her finding that there was a significant level of provocation involved in the offence. He submitted that in all the circumstances of the case, her Honour could not be satisfied beyond reasonable doubt that he had an intention to kill the deceased rather than to inflict grievous bodily harm. He submitted that this placed the case at a lower level of seriousness than those where there was an intention to kill. He submitted that it was for this reason that her Honour erred in assessing the offence at the middle level of seriousness.

He submitted that this was supported by the jury’s verdict on count 4 – i.e. that he discharged the firearm with intent to cause grievous bodily harm to Michael Fox, not with intent to murder him.

Kevin Gall submitted that her Honour had erred in not specifically taking into account, when sentencing for the murder offence, that he was unlikely to re-offend whereas she had taken that into account in relation to the other offences. He referred to the particular circumstances of this offending and to the absence of any other criminal conduct on his record.

Kevin Gall submitted that his admissions had significantly shortened the trial and that he should have received some benefit in sentencing because of this.

Her Honour’s finding as to Kevin Gall’s intention when he shot at the deceased was open to her. The finding was consistent with him alighting from the taxi before arriving at the Girraween premises, drawing the pistol and firing without warning and firing at least 3 shots at the deceased. The fact that there was an element of provocation on the part of the deceased and Mr Fox by being at the premises, is not inconsistent with that finding. Their presence merely brought matters to a head.

Her Honour was well aware that in making that finding she had to do so beyond reasonable doubt (sentence judgment at [5]). There was sufficient evidence to allow her Honour to make her finding to that standard. The position of Mr Fox was different to that of the deceased. The deceased was the person who was pressing Kevin Gall to return property and to do other things, whereas Mr Fox occupied a supporting role.

In order to set aside a factual finding by a sentencing judge, it is necessary to establish that there was an error of principle or a mistake of fact or law so as to indicate that the sentencing discretion miscarried (House v R [1936] HCA 40; 55 CLR 499 at 505). Kevin Gall has not identified error of that kind.

Kevin Gall’s challenge to her Honour’s assessment of the objective seriousness of the offending was largely dependent on him being successful in challenging her factual finding as to his intent when he shot the deceased. Since he has failed on that issue, this challenge largely falls away.

As this Court has said on many occasions, the objective seriousness of an offence is a matter of evaluative judgment about which reasonable minds can differ. Spigelman CJ said in Mulato v Regina [2006] NSWCCA 282 at [37]:

In Mulato Simpson J said at [46]:

Those passages have repeatedly been endorsed (R v Lolesio [2014] NSWCCA 219 at [63] – [64]; Kaminic v R [2014] NSWCCA 116 at [46] – [47] and McGeown v R [2014] NSWCCA 314 at [9] – [11].) That approach was most recently confirmed in Sabongi v R [2015] NSWCCA 25 at [65] – [69].

While her Honour did not say in terms that she took into account the unlikelihood of Kevin Gall re-offending as a mitigating factor, it is clear that she did so. She referred to that matter three times in her sentence judgment. In that regard, it should be noted that although her Honour did not find that the applicant was a person of good character, she still took into account in his favour that he had good prospects of rehabilitation. That finding is closely aligned with a finding that he was unlikely to re-offend.

Kevin Gall admitted his involvement in the shooting at an early point in time. There is no doubt that counsel appearing for him conducted his case properly and efficiently. On the former issue, however, eye witness and other evidence would have made a denial of an involvement in the shooting counter-productive. By admitting his involvement, Kevin Gall was able to direct his evidence to exculpating factors.

Although his case was run expeditiously and his legal advisors are to be congratulated in that regard, it does not automatically follow that there should be a discount of sentence. This is very much a matter for the sentencing judge particularly when the judge had already had regard to totality and was required to impose a sentence which, in all the circumstances, was commensurate with the offending.

This ground of appeal has not been made out.

Kevin Gall submitted that her Honour, having found a level of provocation in that the deceased and Mr Fox went to the premises to stand over him and his father, should have reduced the sentence for this offence in order to take that matter into account.

Kevin Gall relied upon the earlier submissions relating to the facilitation of justice in relation to the sentence for this offence.

Her Honour specifically rejected any element of provocation in relation to this offence when she said:

This finding was open to her Honour. All the evidence was to the effect that Mr Fox was trying to escape when Kevin Gall fired at him. The provocation which her Honour found in relation to the murder offence had already ceased by the time this offence was committed, i.e. having seen the deceased shot, Mr Fox was fleeing for his life.

In relation to the second part of this ground of appeal, the matters raised in pars [126] – [127] apply and it was open to her Honour to take the approach which she did.

This ground of appeal has not been made out.

Kevin Gall submitted that although the question of accumulation was a discretionary matter, when one took into account the extent of the accumulation on the firearms offences, as well as that relating to the discharge firearm with intent offence, it was clear that the extent of the accumulation was excessive in that the sentence for the murder offence did not commence for 6 years after the sentence for pervert the course of justice.

As was appreciated by Kevin Gall, the question of accumulation and concurrency is a discretionary one. Howie J set out the relevant principles in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 . One of the issues to be considered by a sentencing judge is the extent to which one offence can be said to subsume another or other offences. While these offences were part of a course of conduct, they were nevertheless quite separate. Having killed the deceased, Kevin Gall chased Mr Fox shooting at him with an intent to inflict grievous bodily harm. The quite separate nature of this offence required a level of accumulation. The extent of that accumulation was a matter entirely within her Honour’s discretion (House v R). Kevin Gall has failed to show how that exercise of discretion miscarried.

This ground of appeal has not been made out.

This ground of appeal relates to the occasion, approximately two months after the murder, when Kevin Gall, Bruce Gall, Mr Van Straalen and Mr Lapich were talking and a transcript of what they said became Exhibit AC. It is apparent from that exhibit that Kevin and Bruce Gall encouraged Mr Lapich to give false evidence and that Kevin Gall encouraged Mr Lapich to destroy his mobile phone.

The relevant findings by her Honour, which are challenged by this ground of appeal were that the offence was committed in company and the rejection of the two matters put forward by Kevin Gall as mitigating considerations – that the damage caused by the offence was not substantial and that the offence was not part of a planned or organised criminal activity. Her Honour declined to make findings in accordance with those submissions. This was because there was insufficient evidence before her to allow her to ascertain how long the arrest of Kevin Gall had been delayed by that conduct and there was insufficient evidence to allow her to make a positive finding that the advice given to Mr Lapich was not part of a planned or organised criminal activity.

Kevin Gall submitted that despite the fact that Bruce Gall was present at the time the advice was provided to Mr Lapich, there was no evidence that his presence precipitated or had any role in causing that advice to be given. He submitted that there was no evidence that the advice given to Mr Lapich had any material effect upon his subsequent arrest. He submitted that there was no evidence that he had discussed the giving of this advice with any other person including Bruce Gall. In those circumstances, he submitted, her Honour should have made the findings which were requested.

The fact that the conversation with Mr Lapich occurred more than two months after the murder allowed the inference that Kevin and Bruce Gall had plenty of time to think about the circumstances of the murder and “the various ways in which the investigation of the killing could be thwarted with a view to Kevin Gall’s culpability never being discovered by the police”. The state of the evidence was such that it was open to her Honour not to be satisfied as to the two mitigating matters referred to. By way of contrast, the part played by Kevin and Bruce Gall in what was discussed at the time that Exhibit AC came into existence, meant it was open to her Honour to find that this offence was committed by Kevin Gall in company with Bruce Gall. Bruce Gall made remarks which encouraged Mr Lapich to give false evidence at a time when Kevin Gall was trying to achieve the same result.

This ground of appeal has not been made out.

This ground of appeal was not relied upon.

Kevin Gall relied upon the same submissions as were made in respect of ground 3.

The same principles apply to this ground of appeal as apply to ground 3 and Kevin Gall has the same difficulties in making out this ground. Since he has failed to show how her Honour’s sentencing discretion miscarried on this issue, this ground of appeal should be dismissed.

The orders which I propose in relation to the conviction appeal and the application for leave to appeal against sentence are as follows:

Her Honour gave directions to the jury on this issue in writing and orally. The content of the directions was agreed to by all counsel. The written directions were:

The oral directions were as follows:

By way of further background, at the close of his case Bruce Gall submitted that it was not open to her Honour to leave to the jury the alternative verdict of accessory after the fact to manslaughter. By judgment entitled R v Kevin Gall; R v Bruce Gall [No 4] [2012] NSWSC 1355 her Honour rejected that submission. In the course of doing so, her Honour said:

The submissions on behalf of Bruce Gall were as follows.

His liability was for the discrete offence of being an accessory after the fact to either murder or manslaughter. These are alternative offences. They are plainly different from one another. It was essential that the jury be instructed that they were separate alternative offences.

Her Honour omitted to properly instruct the jury that before Bruce Gall could be found guilty of the subject offence, his knowledge must have been of the precise felony, namely murder, committed by Kevin Gall. It was not sufficient to simply refer to “the unlawful homicide” (R v Tevendale [1955] VLR 95; ALR 260; R v Stone [1981] VR 737).

It was essential that the jury be instructed that before they could convict Bruce Gall, they had to be satisfied beyond a reasonable doubt that at the time he performed the alleged act of assistance, he knew that his son had committed the offence of murder. The jury had to be instructed that before they could convict, they needed to be satisfied that he was aware that his son had shot the deceased, either with the intent to kill him or cause him grievous bodily harm, or with reckless indifference to whether the deceased would be killed by the gunshot.

The jury also had to be directed that they had to be satisfied beyond reasonable doubt that at the relevant time, Bruce Gall did not believe that his son had shot the deceased in his [Bruce Gall’s] defence and did not believe that his son’s conduct was a reasonable response in the circumstances as he [Kevin Gall] perceived them to be. It was essential that the jury’s attention be focused upon what crime, if any, Bruce Gall understood had been committed at the time of his assistance.

The directions of her Honour failed to do this. The directions ignored the mental state of Bruce Gall at the time he was said to have hosed down the carport. Even though trial counsel for Bruce Gall did not seek a re-direction, the error was a fundamental one and touched upon the elements of the offence. The error occasioned a miscarriage of justice and for this reason, leave should be granted pursuant to r 4 of the Criminal Appeal Rules.

The error in her Honour’s written direction in relation to the alternative verdict of accessory after the fact to manslaughter was that such an alternative verdict would only arise in the event that the jury returned a verdict of not guilty of murder, but guilty of manslaughter with respect to Kevin Gall. That was incorrect. The jury should have been told that even if they found Kevin Gall guilty of the murder of the deceased, they could still return a verdict of guilty of being an accessory after the fact to manslaughter of the deceased against Bruce Gall. R v Nguyen [2010] HCA 38; 242 CLR 491 at [44] – [46], [49] – [50] and Nguyen v R [2013] HCA 32; 298 ALR 649 at [23] – [27] were said to be authority for that proposition.

Such an alternative verdict continued to be available because it remained open that Bruce Gall was not aware of all of the essential facts necessary for murder and might have believed that Kevin Gall had committed manslaughter. For example, he may have considered that Kevin Gall had killed the deceased by way of excessive self-defence, provocation or an unlawful and dangerous act.

The written directions made it impossible for the jury to consider the alternative verdict of being an accessory after the fact to manslaughter if a verdict of guilty of murder was to be returned against Kevin Gall. Such a verdict was returned and accordingly, the jury never got to consider the alternative verdict in Bruce Gall’s case. It was submitted that a similar issue arose in Budrodeen v R [2014] NSWCCA 332.

The Crown did not join issue with the submissions put on behalf of Bruce Gall other than to rely upon R v Stone. It was the Crown’s submission that R v Stone provided a complete answer to the submission and should be followed by this Court.

I have concluded that Bruce Gall’s submissions should be accepted. As a matter of logic, they conform with the approach which the courts have consistently adopted for murder and manslaughter. The principle was succinctly stated by Cockburn CJ in The Queen v Richards (1877) 2 QBD 311 at 313:

To the extent that there is any authority on the issue, it supports the submission of Bruce Gall. A surprising feature of this ground of appeal is the paucity of authority.

In R v Tevendale Herring CJ said:

Martin J was not so definite and said:

Sholl J went into the matter in most detail and said:

Comments to similar effect were made by Hasluck and Roberts-Smith JJ in Winning v The Queen [2003] WASCA 245. The difficulty with Winning is that the criminal law in Western Australia has been codified and it may be that, in part, this qualifies the reliance which can be placed on these observations.

Hasluck J said:

Roberts-Smith J made observations to similar effect:

It follows that this ground of appeal has been made out. That, however, does not end the matter. The issue of the proviso arises. Section 6(1) of the Criminal Appeal Act 1912 provides:

The proviso has been applied even though a trial judge did not properly direct the jury on an element of the offence charged (R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558, Festa v R [2001] HCA 72; 208 CLR 593). The issue on the proviso is whether Bruce Gall lost a real chance of being convicted of the lesser offence of being an accessory after the fact to manslaughter because of her Honour’s erroneous direction on that issue.

The Crown submitted that the evidence was such that the only rational inference open on the evidence was that Bruce Gall knew all of the facts which gave rise to the conviction of Kevin Gall for the offence of murder so that even if the jury had been properly directed, they could not rationally have come to any other conclusion but that Bruce Gall was an accessory after the fact to the murder of the deceased.

The Crown submitted that the jury had clearly rejected Kevin Gall’s evidence to the effect that he shot the deceased in order to protect his father and himself. The Crown submitted that it followed from that rejection that the jury had also rejected his evidence that Bruce Gall said to him, immediately before he shot the deceased, that the deceased had a gun. The Crown submitted that even without relying upon the evidence of Mr Fox (which the jury may not have wholly accepted) it would have been clear to Bruce Gall, after the shooting but before the hosing down of the car port, that neither the deceased nor Mr Fox had a gun. An inspection of the deceased would have made that clear and the compelling inference from the flight of Mr Fox without attempting to retaliate, was that he was not armed.

The Crown also relied upon the following extract from p 20 of Exhibit AC:

That part of the transcript of Exhibit AC (if accurate) provided very strong evidence that at no time did Bruce Gall believe that either the deceased or Mr Fox had guns before the deceased was shot.

In a supplementary written submission following the conclusion of oral submissions in the appeal, it was asserted on behalf of Kevin Gall (but not on behalf of Bruce Gall) that this part of the transcript was incorrectly transcribed. It was submitted that it was not clear that Bruce Gall said “no” or whether it was only Van Straalen that said “no” and that thereafter Bruce Gall said “yeah he had it on him” which has not been recorded in the transcript.

This point was not taken by either applicant at trial and has not been taken by Bruce Gall in the appeal. At trial the transcript of Exhibit AC was accepted as an accurate transcription of what the listening device was able to pick up and was tendered without objection (T.291.40). The submission is contrary to the evidence of Kevin Gall on this very point (T.467.4). A challenge to the accuracy and completeness of the transcript should not be allowed to be taken for the first time in the appeal. In any event, the issue was not raised in Bruce Gall’s appeal and I propose to disregard it.

The Crown submission should be accepted. The evidence was such that the only rational inference open was that Bruce Gall knew all the relevant facts relating to the shooting of the deceased and that there was no basis for a belief on his part that his son was trying to defend either him or himself.

The Crown position is even stronger when the evidence of Mr Fox is taken into account. Although the jury may not have accepted all of his evidence, they must have accepted most of it for them to reach the verdict which they did in relation to Kevin Gall.

It needs to be remembered that it is the state of knowledge of Bruce Gall which is relevant. He was in the presence of the deceased and Mr Fox for the whole of the time. Even before the death of the deceased and the flight of Mr Fox he was likely to have been well aware that they were not carrying guns. If they had been armed with guns, the compelling inference is that he would have been threatened with them. In that respect, the evidence of Mr Fox was almost certainly correct when he surmised that when Bruce Gall started to run he was not “fleeing” from the deceased but was going to either lock himself in the office or get a gun. It is also relevant that the layout and photographs of the premises make it clear that when Kevin Gall shot the deceased, Bruce Gall was running directly towards him.

The issue can be looked at in another way. The only evidence to the contrary depended upon an acceptance of Kevin Gall’s explanation for why he shot the deceased which was clearly rejected by the jury. There is no other evidence which would provide a rational basis for a belief on the part of Bruce Gall that his son was trying to defend him or himself. Not surprisingly, given the state of the evidence, no submission was made at trial that Bruce Gall may have thought that his son was trying to defend him.

This is a case in which the proviso to s6(1) of the Criminal Appeal Act 1912 should be applied in that Bruce Gall did not lose a real chance of an acquittal on the more serious accessory charge. This ground of appeal has not been made out.

Bruce Gall was sentenced as follows:

The total effective sentence was imprisonment for 6 years with a non-parole period of 4 years and 6 months. Bruce Gall is eligible for release to parole on 15 July 2016.

In accordance with the jury verdict, her Honour found that on 16 April 2010 Bruce Gall assisted his son to escape detection by hosing away the deceased’s blood from the concrete floor of the premises with a high pressure hose.

When reviewing the facts in her sentence judgment, her Honour noted that in the intercepted conversation of 19 June 2010 (exhibit AC) Kevin Gall sought to influence Mr Lapich to give a false account to police about his whereabouts on 16 April 2010 and to destroy his mobile phone so that the text messages he had sent to Kevin Gall on that day would never be recovered. In accordance with his plea of guilty, her Honour noted that on that occasion Bruce Gall had also encouraged Mr Lapich to give a false version of his whereabouts on that day.

Again in accordance with his plea of guilty, her Honour found that on 16 November 2010 a further search warrant was executed at the Wiltona Place premises and that in the process of executing the search warrant, Bruce Gall escorted police into the office where in response to questioning he indicated the whereabouts of a six round .38 calibre revolver. The revolver was wrapped in a light brown cloth on top of the table in the middle of the office. Police seized the revolver and found it to be loaded with six .38 calibre rounds.

On 16 November 2010 Bruce Gall was arrested and charged but was released on conditional bail on 22 September 2011, having spent the intervening period in custody. Her Honour in structuring his sentences took into account time already served.

Bruce Gall did not give evidence at the trial nor at the sentence hearing. Her Honour based her findings of fact as to his subjective circumstances on a pre-sentence report dated 26 October 2012. Bruce Gall relied upon a report of a psychologist, Bradley Jones, dated 1 October 2012. Her Honour was not prepared to accept the history recorded by Mr Jones because it was not otherwise verified and as a result, the opinions expressed by him were without foundation.

Her Honour found that Bruce Gall was born in 1951 and was the younger of two siblings. His mother abused alcohol and was violent, leaving the family home when he was about 12. He had little further contact with her. His father remarried but he was rejected by his stepmother and left the family home when aged about 17. He left school at 15 and commenced an apprenticeship as a fitter and turner. He worked with his father who owned an engineering company and eventually ran his own business.

Bruce Gall married in 1970 and had two sons, one of whom was Kevin Gall. Although he and his wife separated in 1999 and divorced in 2000, they remained on good terms. At the time of sentencing he resided with his former wife who continued to provide him with support and friendship. He had a prior criminal record but because the most recent offence was in 1990, her Honour regarded that as being of little moment.

Her Honour made the following findings in relation to the offences. Bruce Gall’s act of hosing down the car port was the only act relied upon by the Crown in relation to the offence of accessory after the fact. She found that its effect was to assist his son to escape detection, at least for a period, since had the blood remained in place it would probably have led the neighbours or other visitors to report it to the police. Her Honour was prepared to accept that although not excusable, this offence was an understandable act by a father who was devoted to and concerned about his son whom he knew to have just killed someone. Her Honour was prepared to accept that this was an instinctive act by a loyal father in the “heat of the moment”.

Her Honour found that the factors motivating Bruce Gall were emotional attachment and a misguided sense of loyalty.

Nevertheless, her Honour noted that the offence was a serious one, as indicated by the maximum penalty. Her Honour noted that there were strong policy reasons for regarding the offence as a serious one and quoted from Thomas JA in R v Hawken (1986) 27 A Crim R 32 at 38:

Her Honour took into account as an aggravating factor that the offence was committed in company (s21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999). By way of mitigating factors, her Honour took into account that the acts of Bruce Gall in hosing down the car port did not, to the extent that he was responding in a relatively short period of time to an event that was both violent and as far as he was concerned unexpected, form part of a planned or organised criminal activity (s21A(3)(b) Crimes (Sentencing Procedure) Act 1999).

In relation to the offence of perverting the course of justice, her Honour assessed the underlying facts as being in a different category to those associated with the accessory after the fact to murder offence. Whereas the hosing of blood from the car port might be understood as an impulsive emotional act borne of paternal devotion, the act of encouraging Mr Lapich to give false evidence could not be viewed in the same way.

Her Honour considered that the state of Bruce Gall’s knowledge at the time of that conversation was relevantly the same as that of Kevin Gall, i.e. it was a serious matter to encourage a potential witness to give a false account if questioned by police with a view to concealing a homicide. The events had occurred some two months after the murder and so could not be regarded as having been in the “heat of the moment”. He would also have been aware of the other acts of Kevin Gall to mislead the police, i.e. the disposal of the deceased’s body, the removal of the hard drive of the CCTV on the premises, the disguise of the Ford Laser and the destruction of the white van.

Because the plea of guilty was not entered until the first day of trial, her Honour allowed a 10 percent reduction to take into account its utilitarian value.

Her Honour took into account as an aggravating factor that the offence was committed in company (s21A(2)(e)). Her Honour rejected the submission that the damage caused by the offence was not substantial on the basis that there was no evidence before her to that effect.

In relation to the offence of possessing an illegal firearm, her Honour did not accept that he had acquired the pistol after the killing of the deceased to protect himself and his son from the Nomads, or that he acquired it because of fear of reprisal from the Nomads. By implication therefore her Honour found that Bruce Gall possessed the firearm before the events of 16 April 2010. Her Honour noted that fear of reprisals was not an excuse much less a justification for possessing a firearm.

Her Honour was not prepared to take into account Bruce Gall’s co-operation with the police in showing them where the illegal firearm was located. Her Honour characterised that action as merely bowing to the inevitable.

Her Honour said:

Her Honour took into account as an aggravating factor that the offence was part of a planned or organised criminal activity and that by keeping a loaded firearm unsecured the offence was committed in a broad sense without regard to public safety (s23A(2)(n) and (i)). By way of mitigation her Honour took into account the lack of a substantial criminal record, the unlikelihood of re-offending and his good prospects of rehabilitation.

Her Honour was not prepared to find special circumstances. Her Honour found that although there was a common theme to these offences, the offences ought not be wholly concurrent since this would fail to reflect the discrete criminality of each which required a substantial measure of accumulation.

Bruce Gall submitted that there was no evidence to suggest that his actions in hosing away blood from the crime scene were committed with any other person. The same submission was made in relation to the pervert the course of justice offence on the basis that the mere presence of other people did not justify such a finding. He submitted that in both instances it was an error to take into account the fact that an offence was committed in company when that fact added no significant culpability to the offence.

There was no evidence that Kevin Gall was present when Bruce Gall was hosing out the car port. Even if he had been present, it would have added nothing to the offending. The Crown appears to accept this. Accordingly, this part of the ground of appeal is made out.

That does not end the matter. The question then becomes whether any lesser sentence is warranted (s6(3) of the Criminal Appeal Act 1912). Given the seriousness of the offending, the sentence was modest and when one has regard to the extent of the accumulation on other sentences, the time to be actually served in custody was 1 year and 8 months.

That being so, the Court has to carry out the task explained in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 where the plurality (French CJ, Hayne, Bell and Keane JJ) said:

Bruce Gall was present and witnessed the murder of the deceased by his son who then repeatedly shot at another man as he attempted to flee for his life. He was also aware that his son then removed the deceased’s body from the car port area and sought to dispose of it to remove the evidence. With that state of knowledge he hosed down the car port area with a high pressure hose in order to remove the deceased’s blood and therefore the evidence linking his son to the premises.

Even allowing for the mitigating factors to which her Honour referred, I’m of the opinion that the sentence imposed by her Honour was an appropriate sentence for this offending and that no lesser sentence is warranted.

In relation to the offence of attempting to pervert the course of justice, the factual proposition put forward in this ground of appeal is not made out. A proper reading of the transcript of the conversation which took place between Kevin Gall, Martin Lapich, Mr Van Straalen and Bruce Gall on 19 June 2010 makes it clear that not only was Mr Lapich worried and seeking advice from the three other persons, but that both Kevin Gall and Bruce Gall clearly and unequivocally advised him to give false evidence as to his whereabouts and activities on 16 April 2010 (see also [144] hereof). Not only as a matter of fact did the offence occur in company but in the circumstances of this offending the fact that more than one person was urging this course of conduct on Mr Lapich made it more likely that he would accept that advice. This part of the ground of appeal has not been made out.

Bruce Gall submitted that it was clear from the evidence that he was in possession of the firearm because he feared for his safety following the incident where the deceased was shot. This could be inferred from the fact that the deceased was a member of an outlaw motorcycle gang and that Kevin Gall’s house had been firebombed on 24 April 2010. He (Bruce Gall) was residing at a place where the deceased had been shot which was an industrial area with no other residential properties nearby.

He submitted that there was no basis for finding that this circumstance of aggravation existed. He submitted that such a finding could not be made beyond reasonable doubt and that in any event, to the extent there was planning, it did not go beyond that which would ordinarily be expected of an offence of this kind.

There is a factual error in the submissions. It is clear from the evidence that Kevin Gall, his girlfriend and Troy resided at the Girraween premises after his house had been firebombed. Bruce Gall resided with his former wife and not at these industrial premises.

There was ample evidence before her Honour to justify her Honour’s findings. It was clear from the circumstances surrounding the murder of the deceased, that both Bruce Gall and Kevin Gall had ready access to firearms and that firearms were stored at the various locations at the Girraween premises. In the absence of any evidence that this firearm was acquired after the death of the deceased, there is a compelling inference that it was one of the firearms which were regularly kept there.

The search warrant was not executed until seven months after the murder had been committed and Kevin Gall’s house had been firebombed. During that time, there had been no retaliatory action taken against Bruce Gall and no further retaliatory action taken against Kevin Gall. The degree of planning went beyond what one would normally expect for an offence of this kind in that the firearm was in a position where it was readily available for use and was loaded.

It was open to her Honour to find that the positioning of the prohibited firearm was well thought through and that Bruce Gall took steps to ensure that it was readily accessible and able to be used with potentially fatal consequences. This ground of appeal has not been made out.

Bruce Gall submitted that there was no evidence that warranted the conclusion that his possession of the firearm was to “attack and kill others”. He submitted that the only reasonable conclusion available from the evidence was that he was unlawfully in possession of the firearm because of fear that he would be the subject of a violent reprisal as a consequence of the death of the deceased.

This ground of appeal fails to place her Honour’s finding in context. When making that finding, her Honour was dealing with the question of accumulation and had regard to the common theme in all three offences committed by Bruce Gall. The totality of what her Honour said was:

The point which her Honour was making was that in keeping with all of these offences, the common theme was that Bruce Gall tended to ignore conventional ways of dealing with problems by using legal and other recognised processes but took the law into his own hands. Her Honour regarded having a loaded firearm readily available with a clear intention that it be used if Bruce Gall thought such action was required, as conduct of this kind. At no point was her Honour suggesting that Bruce Gall had in mind being an aggressor and attacking some unnamed person.

The important finding from her Honour’s point of view was that Bruce Gall was accustomed to taking the law into his own hands. Her Honour made the important point that despite the deceased’s death being largely due to the ready availability of a firearm, Bruce Gall had apparently learned nothing and had brought into existence a situation whereby another person might well be shot as a result of the use of an illegal firearm.

The finding made by her Honour was well open to her. This ground of appeal has not been made out.

Bruce Gall submitted that her Honour made no mention of any reduction in the sentence imposed for this offence because of his plea of guilty whereas she had done so in relation to the pervert the course of justice offence. Bruce Gall submitted that in such circumstances the Court should infer that her Honour had failed to take into account the plea of guilty.

Bruce Gall submitted that the weight of authority is that judges should explicitly state that a plea of guilty is taken into account and a failure to do so may be taken as indicating that the plea was not given sufficient weight: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. He submitted that her Honour’s failure to refer to the discount was indicative of her Honour having failed to take it into account.

Bruce Gall submitted that the sentence for this offence of 3 years with a non-parole period of 18 months indicated that it was likely that her Honour had overlooked the discount for the plea of guilty. He submitted that the alternative conclusion that the discount was included but not expressly referred to, would have required her Honour to have adopted as a starting point a sentence of approximately 3 years and 4 months with a non-parole period of 1 year and 8 months, which was unlikely.

While this Court has on many occasions referred to the advisability of sentencing judges indicating the extent of any discount imposed for a plea of guilty, a failure to do so does not necessarily indicate that the sentencing judge failed to take the discount into account. This is particularly so when, as here, her Honour made specific reference to the fact of the plea of guilty at [122] of the judgment at a point in that judgment not long before the imposition of the sentence. Error is not established merely because her Honour did not expressly quantify the discount (R v Simpson [2001] NSWCCA 297; 53 NSWLR 704 at [82] – [83]; R v DF [2005] NSWCCA 259 at [15]; R v Henare [2005] NSWCCA 366 at [26]). By reference to the approach her Honour followed in relation to the offence of pervert the course of justice, the strong likelihood is that her Honour had in mind the same discount as she imposed in that sentence, i.e. 10 percent. There is nothing in the form of the sentence actually imposed to indicate that her Honour did not in fact apply a discount of that order. I am not satisfied that her Honour failed to take into account Bruce Gall’s plea of guilty.

This ground of appeal has not been made out.

Bruce Gall submitted that the three errors identified are errors of process and require correction for that reason.

Ground 6(a) – The sentence imposed upon the applicant was said to be a “fixed term”. That was incorrect as it also contained a non-parole period. This was contrary to s45 of the Crimes (Sentencing Procedure) Act 1999. It was also not appropriate to apply a “fixed term” sentence where the offence carried a standard non-parole period.

Ground 6(b) – Where the sentence is of 3 years or less in total, the Court must make an order directing the offender’s release at the end of the non-parole period (s50(1) Crimes (Sentencing Procedure) Act 1999). Even if the sentence is imposed on another sentence so the overall sentence is more than 3 years (Cross v Regina(No 2) [2012] NSWCCA 234 at pars [4] – [5]).

Ground 6(c) – Where a court is sentencing an offender for an offence committed after 1 February 2003, the court must fix a non-parole period and then fix the balance of the term which is not to exceed one-third of the total sentence unless there are special circumstances (s44 Crimes (Sentencing Procedure) Act 1999).

The errors identified are errors in form not substance.

Reference to a “fixed term” is clearly a typographical error. It has no effect on the sentence imposed.

The failure to make an order directing the offender’s release is once again an error of form. It has no effect on the sentence. Section 50(3) of the Crimes (Sentencing Procedure) Act 1999 says:

The failure to first fix the non-parole period before fixing a balance of term is the precise error identified in Kentwell v R which the plurality said was of no practical effect insofar as the sentence was concerned:

These errors while correctly identified have no effect on the sentence. Accordingly, while the ground of appeal has been made out, it also has no effect on the sentence and for practical purposes should be dismissed.

Bruce Gall submitted that while the issue of accumulation was discretionary, her Honour’s approach to accumulation in this case failed to properly take into account that the offences were connected. Each had a connection to the actions taken by Kevin Gall that led to the death of the deceased. With that in mind, the extent to which the sentences were accumulated was simply excessive.

Bruce Gall submitted that there was a need for the overall sentence to properly reflect the totality of the criminality (R v Wilson [2005] NSWCCA 219 at [38]). There was no mention made by her Honour of the need to observe this fundamental sentencing principle in her remarks on sentence. He submitted that her Honour had fallen into error by failing to take this principle into account when determining an appropriate overall sentence. He submitted that the consequence of this error was the imposition of a manifestly excessive total term of imprisonment.

As was appreciated by Bruce Gall, the issue of accumulation and concurrency is a discretionary one. Howie J set out the relevant principles in Cahyadi v Regina. One of the issues to be considered by a sentencing judge is the extent to which one offence can be said to subsume another or other offences.

While these offences all related to the primary offence of murder committed by Kevin Gall, they were each distinct, occurred at different times and involved different elements of criminality. Each was an entirely separate episode. Each was a very serious offence. Each was a serious example of an offence of its kind and each had substantial maximum penalties. While her Honour may not have used the word “totality” she clearly had it in mind (see [220] hereof).

While allowing for mitigating considerations, as her Honour did, the accessorial offence is serious in that Bruce Gall having witnessed the murder of the deceased, and the removal of his body from the location, deliberately sought to assist Kevin Gall.

More than two months later, in company with Kevin Gall, he encouraged a witness to give a false account of events so as to interfere with the police investigation. That was at a time when neither applicant had been arrested or charged and other steps had been taken to interfere with the police investigation, i.e. the removal of the body, the removal of the CCTV hard drive, the destruction of spent cartridges, disguising the Ford Laser and the destruction of the white van. In that context, persuading Mr Lapich to give false evidence was an important step in deflecting the police investigation away from Kevin Gall as the killer of the deceased.

For the reasons already set out, the keeping of a loaded firearm unsecured in a domestic dwelling, which was readily available to be used in the context of what had already happened to the deceased, was a serious example of offending of that kind.

It cannot be said that her Honour failed to take into account the principle of totality. She had specifically referred to it when sentencing Kevin Gall. Since both applicants were sentenced together, her Honour clearly had the principle in mind when sentencing Bruce Gall.

No challenge has been made to the individual sentences on the basis that they were manifestly excessive. In relation to the total sentence, nothing has been put before the Court to establish that it was “unreasonable or plainly unjust” (Markarian v R [2005] HCA 25; 228 CLR 357 at [25]). Nothing has been placed before the Court to indicate that House v R [1936] HCA 40; 55 CLR 499 error has occurred.

In those circumstances, this ground of appeal has not been made out and should be dismissed.

The orders which I propose in relation to Bruce Gall are as follows:

R A HULME J I agree with the reasons of Hoeben CJ at CL and the orders he proposes. I wish to add some observations about one of the issues raised in these appeals.

Ground 1 in the appeal against conviction of Bruce Gall raises questions about the state of the common law in relation to criminal liability for being an accessory after the fact. I agree with the observation of Hoeben CJ at CL about there being a paucity of authority on the subject. It has been observed that this is because the issue “has rarely come before the courts”: Peter Gillies, The Law of Criminal Complicity, (1980, The Law Book Company Limited) at 277. That was said some 35 years ago but it continues to be the case.

The state of the law concerning one aspect of the mental element required to be proved in relation to an accessory after the fact is uncertain but the weight of judicial opinion (such as there is) points to acceptance of the proposition advanced by the appellant Bruce Gall, namely that it was necessary for the prosecution to establish knowledge of the precise crime committed by his son. I agree with what Hoeben CJ at CL has said about this.

There has been criticism of a requirement that an accessory after the fact must know the precise offence committed by the principal: Brent Fisse, Howard’s Criminal Law, (5th ed, 1990, The Law Book Company Limited) at 355.

The NSW Law Reform Commission has examined the law on this subject: NSW Law Reform Commission, Complicity, Report 129 (December 2010) at 59-70. It identified that this State is alone among Australian jurisdictions in not providing a statutory definition of an accessory after the fact, or in providing a specific offence, rather leaving it to the common law.

The Law Reform Commission made a recommendation (Recommendation 3.3) for there to be a statutory provision setting out with clarity what would render a person liable for conviction as an accessory after the fact. It included that it would be sufficient proof of the offence if the accused knew or believed that the principal offender committed a certain offence, or that the accused believed that the principal offender committed a “related offence”. A “related offence” was defined to mean one that is committed in the same, or partly the same, circumstances as the offence actually committed by the principal. In other words, if the principal’s offence was murder, it would not matter whether the accessory knew or believed it was either murder or manslaughter.

A similar, but not identical, approach to what was recommended has been taken in other jurisdictions: see, for example, s 325 of the Crimes Act 1958 (Vic) and s 4 of the Criminal Law Act 1967 (UK).

It has been said that being an accessory after the fact is not concerned with a person’s implication in another’s offence; it is an independent offence against justice, incriminating the person who helps a felon to evade justice: Peter Gillies, Criminal Law, (4th ed 1997, LBC Information Services) at 202. Requiring proof that the accessory knew all of the precise details of the offence committed by the principal does not serve this purpose.

DAVIES J: I agree with Hoeben CJ at CL.