The verdict after 19 years: Gilham killed one person, not three
Paul Bibby, Louise Hall, Lisa Davies
June 26, 2012
IT WAS an extraordinary end to an extraordinary saga.
Nineteen years after Helen and Stephen Gilham were stabbed to death in their southern Sydney home, their son Jeffrey was finally acquitted of the crimes by the highest court in NSW.
In a judgment that was scathing of the prosecution case and has brought renewed calls for change to the way forensic scientific evidence is used in trials, the NSW Court of Criminal Appeal formally overturned the 2008 conviction of Mr Gilham and the two life sentences he had been given for the 1993 murders.
Jeffrey Gilham and his wife Robecca leaving the Supreme Court this afternoon after being acquitted of murder. Photo: Dean Sewell
The 42-year-old father of three clutched the hand of his wife Robecca as the 2-1 majority decision was read, embracing her when the result finally became clear.
''This has been a horrendous experience for us. I'm glad today that I have been acquitted of the charges,'' Mr Gilham said.
''I am very happy to be going home a free man and that's just all I want to do, is go home.''
A Gilham family picture shows murder victims Steven (left), Helen Gilham (right) with their dead son Christopher in the middle.
The judgment goes a considerable way to upholding Mr Gilham's 19-year insistence that it was not he, but his brother Christopher who was responsible for the murder of Helen and Stephen Gilham in the early hours of August 28, 1993.
Jeffrey Gilham admitted to killing Christopher, but said he did so in a fit of rage after discovering that his older sibling had killed their parents and was in the process of setting them on fire.
Police initially accepted Mr Gilham's story, allowing him to plead guilty to manslaughter for killing his 25-year-old brother.
Justice Peter Garling. Photo: Getty Images
But there were others who did not accept it, most notably Tony Gilham, who was convinced that his nephew was guilty and began campaigning for him to be brought to trial.
Police eventually reopened the investigation and in 2000 a coroner recommended that Mr Gilham be charged with the murder of his parents.
Eight years later, after one trial in which the jury failed to reach a verdict, Mr Gilham was convicted over the murder of his parents and given two consecutive life sentences.
But Mr Gilham appealed against the convictions to the state's highest court and presented new expert scientific evidence that cast doubt over a key part of the prosecution case.
An American toxicologist, David Penney, told the court that - contrary to the Crown case - Stephen, Helen and Christopher Gilham must have been alive when the fire was lit as they had significant amounts of carbon monoxide in their bloodstream.
This undermined the Crown's argument - based on testimony from its own expert - that Christopher had a ''negative'' level of CO in his bloodstream and thus must have been dead before the fire was lit.
It also brought into question the timing and sequence of events presented to the jury by the Crown Prosecutor, Margaret Cunneen, SC.
The evidence proved crucial to the appeal panel's decision yesterday.
''[Dr Penney's] conclusions contradict two central elements of the Crown case as presented at trial,'' the judges said.
''It is inevitable … that a miscarriage of justice has occurred.''
The judges also upheld Mr Gilham's claim that the prosecution misled the jury by leading evidence about apparent ''similarity'' between the clustered stab wounds on the three deceased.
The appeal heard that this conclusion was not supported by forensic science, with clusters of stab wounds commonplace in many homicides, including those that involved more than one victim and more than one killer.
The judges noted that Ms Cunneen had elected not to call a Victorian forensic expert, Stephen Cordner, who had given evidence in pre-trial hearings that such conclusions could not be drawn, calling, instead, a forensic expert with a more favourable view.
''[The] evidence of a pattern in the stab wounds suffered by each of the deceased was wrongly admitted as expert evidence and, for that reason, is not available to be used by the Crown at any retrial, further weakening the Crown case,'' Justice Fullerton said.
Though Mr Gilham's support group hailed the decision as ''justice finally done'', not everyone agreed.
Leaving the court, Tony Gilham, Jeffrey's uncle, said: ''It's not over yet Jeffrey - I'll fix you.''
He said the court's decision was ''a miscarriage of justice'' and he would ask the DPP to consider an appeal to the High Court. He said his nephew was a ''family killer''.
Nevertheless the decision stands and it is unlikely to be appealed.
Coming just four months after Gordon Wood was acquitted over the murder of his girlfriend Caroline Byrne, it has also raised further questions about the way alleged offenders are tried in NSW.
In particular, it raises questions about the use of forensic scientific evidence to prove a person's guilt or innocence, and the ability of juries to understand this evidence and its fallibility.
''I think it highlights how potentially damaging, unreliable and speculative experts can be,'' Professor Gary Edmond, a legal expert in forensic science from the University of NSW, said of the decision last night.
''It is hopefully part of a a slow move, following the decisions in Wood, towards requiring trial judges to be more attentive to the opinions that experts express. It also seems to suggest that some of the trial safeguards, like cautionary ruling to juries, might not be as affective as juries believe.''
(26/6/2012 Sydney Morning Herald)
2011年12月5日我寫了 Gilham謀殺案 ，新南威爾斯州上訴庭昨日判被告上訴得直，無需重審，刑事案的發展已完結。儘管死者家屬要求刑事檢控專員上訴至聯邦高等法院，那只是一廂情願的想法。從法理看，裁決是案情事實的裁斷(factual finding)，控方毫無上訴空間。書面判辭尚未上載，需時往往盈月，我也沒有耐性等待，還是先作評論。
上訴最關鍵的地方是有關控方構想的事發經過，控方的理論是上訴人殺了父母和兄長，然後燒屍，另外控方也依賴3名死者的刀傷模式(stab wounds pattern)，推論作案手法如出一轍，為同一人所為。上訴人提出新證據(控方對此不爭論)，美國的毒理學家(toxicologist)從死者血液中的二氧化碳含量斷定，死者被焚的時候尚未死去，推翻控方的理論。法庭同時裁定刀傷模式理論也不可靠，陪審團受到誤導。
控方處理這件案的手法，有幾點值得商確的地方。警方在案發後輕信了被告的講法，只檢控他一項殺兄罪，又接納了他承認誤殺，以致法庭輕判他守行為5年，如果一開始調查方法不粗疏，告他3項謀殺，這件案的結果必定改寫。就算最後只能定一項誤殺罪，量刑的依據也絕不相同，怎會守行為這麼便宜。這就是典型的一子錯，滿盤皆落索。刑事檢控不可overkill，也不能undermine自己的證據。
另一方面，科學鑑證(forensic evidence)開啟了現代刑事檢控的新領域，可惜應用的人未必真正了解這種證據的可靠性和限制，聽了一個專家的講法便照單全收，繼而想出一些犯案的理論出來。以這件案而言，控方其實無需要把講法局限於人死後才燒屍，擴闊講法不更好嗎？如果法官和主控官的科學知識不足，理解能力便大打節扣，Gordon Wood案便涉及物理的原理，聽審上訴的法官未必真正明白。
澳洲人一般給我的印象是，做事充滿信心，說話講得漂亮，manual寫得頭頭是道，做起事來卻一塌糊塗。以Epping滅門案為例(The Epping Murder ，再談Epping謀殺案 ，Epping滅門案的一些發展 )，警方在新聞發佈時，講到好像證據確鑿，被告犯案手法動機，如數家珍。在被告申請保釋聆訊中披露的案情，卻使我覺得審訊結果會是no case to answer。若然是這樣，就不應自信心膨脹，給別人和自己錯覺，自信心比證據強，當輸了案件時，一般人的期望與事實的落差大，對警察的能力，公義的彰顯，信心頓失。Epping案很快就開審，我的推測是否準確，很快就會揭曉。
如果讀我第一篇Gilham案的評論，可見整件案的發展荒謬得難以置信，警方的查案能力，控方對私人檢控(private prosecution)中途介入，撤銷控罪的做法，使我大開眼界，嘆為觀止，這就是澳洲。
IT WAS an extraordinary end to an extraordinary saga.
Nineteen years after Helen and Stephen Gilham were stabbed to death in their southern Sydney home, their son Jeffrey was finally acquitted of the crimes by the highest court in NSW.
In a judgment that was scathing of the prosecution case and has brought renewed calls for change to the way forensic scientific evidence is used in trials, the NSW Court of Criminal Appeal formally overturned the 2008 conviction of Mr Gilham and the two life sentences he had been given for the 1993 murders.
Jeffrey Gilham and his wife Robecca leaving the Supreme Court this afternoon after being acquitted of murder. Photo: Dean Sewell
The 42-year-old father of three clutched the hand of his wife Robecca as the 2-1 majority decision was read, embracing her when the result finally became clear.
''This has been a horrendous experience for us. I'm glad today that I have been acquitted of the charges,'' Mr Gilham said.
''I am very happy to be going home a free man and that's just all I want to do, is go home.''
A Gilham family picture shows murder victims Steven (left), Helen Gilham (right) with their dead son Christopher in the middle.
The judgment goes a considerable way to upholding Mr Gilham's 19-year insistence that it was not he, but his brother Christopher who was responsible for the murder of Helen and Stephen Gilham in the early hours of August 28, 1993.
Jeffrey Gilham admitted to killing Christopher, but said he did so in a fit of rage after discovering that his older sibling had killed their parents and was in the process of setting them on fire.
Police initially accepted Mr Gilham's story, allowing him to plead guilty to manslaughter for killing his 25-year-old brother.
Justice Peter Garling. Photo: Getty Images
But there were others who did not accept it, most notably Tony Gilham, who was convinced that his nephew was guilty and began campaigning for him to be brought to trial.
Police eventually reopened the investigation and in 2000 a coroner recommended that Mr Gilham be charged with the murder of his parents.
Eight years later, after one trial in which the jury failed to reach a verdict, Mr Gilham was convicted over the murder of his parents and given two consecutive life sentences.
But Mr Gilham appealed against the convictions to the state's highest court and presented new expert scientific evidence that cast doubt over a key part of the prosecution case.
An American toxicologist, David Penney, told the court that - contrary to the Crown case - Stephen, Helen and Christopher Gilham must have been alive when the fire was lit as they had significant amounts of carbon monoxide in their bloodstream.
This undermined the Crown's argument - based on testimony from its own expert - that Christopher had a ''negative'' level of CO in his bloodstream and thus must have been dead before the fire was lit.
It also brought into question the timing and sequence of events presented to the jury by the Crown Prosecutor, Margaret Cunneen, SC.
The evidence proved crucial to the appeal panel's decision yesterday.
''[Dr Penney's] conclusions contradict two central elements of the Crown case as presented at trial,'' the judges said.
''It is inevitable … that a miscarriage of justice has occurred.''
The judges also upheld Mr Gilham's claim that the prosecution misled the jury by leading evidence about apparent ''similarity'' between the clustered stab wounds on the three deceased.
The appeal heard that this conclusion was not supported by forensic science, with clusters of stab wounds commonplace in many homicides, including those that involved more than one victim and more than one killer.
The judges noted that Ms Cunneen had elected not to call a Victorian forensic expert, Stephen Cordner, who had given evidence in pre-trial hearings that such conclusions could not be drawn, calling, instead, a forensic expert with a more favourable view.
''[The] evidence of a pattern in the stab wounds suffered by each of the deceased was wrongly admitted as expert evidence and, for that reason, is not available to be used by the Crown at any retrial, further weakening the Crown case,'' Justice Fullerton said.
Though Mr Gilham's support group hailed the decision as ''justice finally done'', not everyone agreed.
Leaving the court, Tony Gilham, Jeffrey's uncle, said: ''It's not over yet Jeffrey - I'll fix you.''
He said the court's decision was ''a miscarriage of justice'' and he would ask the DPP to consider an appeal to the High Court. He said his nephew was a ''family killer''.
Nevertheless the decision stands and it is unlikely to be appealed.
Coming just four months after Gordon Wood was acquitted over the murder of his girlfriend Caroline Byrne, it has also raised further questions about the way alleged offenders are tried in NSW.
In particular, it raises questions about the use of forensic scientific evidence to prove a person's guilt or innocence, and the ability of juries to understand this evidence and its fallibility.
''I think it highlights how potentially damaging, unreliable and speculative experts can be,'' Professor Gary Edmond, a legal expert in forensic science from the University of NSW, said of the decision last night.
''It is hopefully part of a a slow move, following the decisions in Wood, towards requiring trial judges to be more attentive to the opinions that experts express. It also seems to suggest that some of the trial safeguards, like cautionary ruling to juries, might not be as affective as juries believe.''
(26/6/2012 Sydney Morning Herald)
2011年12月5日我寫了 Gilham謀殺案 ，新南威爾斯州上訴庭昨日判被告上訴得直，無需重審，刑事案的發展已完結。儘管死者家屬要求刑事檢控專員上訴至聯邦高等法院，那只是一廂情願的想法。從法理看，裁決是案情事實的裁斷(factual finding)，控方毫無上訴空間。書面判辭尚未上載，需時往往盈月，我也沒有耐性等待，還是先作評論。
上訴最關鍵的地方是有關控方構想的事發經過，控方的理論是上訴人殺了父母和兄長，然後燒屍，另外控方也依賴3名死者的刀傷模式(stab wounds pattern)，推論作案手法如出一轍，為同一人所為。上訴人提出新證據(控方對此不爭論)，美國的毒理學家(toxicologist)從死者血液中的二氧化碳含量斷定，死者被焚的時候尚未死去，推翻控方的理論。法庭同時裁定刀傷模式理論也不可靠，陪審團受到誤導。
控方處理這件案的手法，有幾點值得商確的地方。警方在案發後輕信了被告的講法，只檢控他一項殺兄罪，又接納了他承認誤殺，以致法庭輕判他守行為5年，如果一開始調查方法不粗疏，告他3項謀殺，這件案的結果必定改寫。就算最後只能定一項誤殺罪，量刑的依據也絕不相同，怎會守行為這麼便宜。這就是典型的一子錯，滿盤皆落索。刑事檢控不可overkill，也不能undermine自己的證據。
另一方面，科學鑑證(forensic evidence)開啟了現代刑事檢控的新領域，可惜應用的人未必真正了解這種證據的可靠性和限制，聽了一個專家的講法便照單全收，繼而想出一些犯案的理論出來。以這件案而言，控方其實無需要把講法局限於人死後才燒屍，擴闊講法不更好嗎？如果法官和主控官的科學知識不足，理解能力便大打節扣，Gordon Wood案便涉及物理的原理，聽審上訴的法官未必真正明白。
澳洲人一般給我的印象是，做事充滿信心，說話講得漂亮，manual寫得頭頭是道，做起事來卻一塌糊塗。以Epping滅門案為例(The Epping Murder ，再談Epping謀殺案 ，Epping滅門案的一些發展 )，警方在新聞發佈時，講到好像證據確鑿，被告犯案手法動機，如數家珍。在被告申請保釋聆訊中披露的案情，卻使我覺得審訊結果會是no case to answer。若然是這樣，就不應自信心膨脹，給別人和自己錯覺，自信心比證據強，當輸了案件時，一般人的期望與事實的落差大，對警察的能力，公義的彰顯，信心頓失。Epping案很快就開審，我的推測是否準確，很快就會揭曉。
如果讀我第一篇Gilham案的評論，可見整件案的發展荒謬得難以置信，警方的查案能力，控方對私人檢控(private prosecution)中途介入，撤銷控罪的做法，使我大開眼界，嘆為觀止，這就是澳洲。
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