Application by Garry Zane Glasby pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

[2018] NSWSC 130

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Garry Zane Glasby pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 130
Hearing dates:	On the papers
Date of orders:	16 February 2018
Decision date:	16 February 2018
Jurisdiction:	Common Law - Criminal
Before:	Lonergan J
Decision:	Application refused
Catchwords:	CRIMINAL LAW – appeals – application under Part 7 Div 3 of the Crimes (Appeal and Review) Act 2001 – applicant convicted of murder – appeal dismissed by Court of Criminal Appeal – special leave to appeal refused by High Court of Australia
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) ss 78, 79 Criminal Appeal Act 1912 (NSW) s 6 Criminal Law Amendment Act 1883 (NSW) s 383 Evidence Act 1995 (NSW) s 18
Cases Cited:	Application by Ali Hussein pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1855 Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Crofts v R (1996) 186 CLR 427; 88 A Crim R 232; [1996] HCA 22 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; 140 A Crim R 472; [2003] HCA 28 Glasby v The Queen S163/2000 [2001] HCATrans 143 R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 Regina v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83 Sinkovich v Attorney General for the State of New South Wales (2013) 85 NSWLR 783; 238 A Crim R 238; [2013] NSWCA 383 Varley v Attorney-General (NSW) (1987) 8 NSWLR 30; 24 A Crim R 413 The Queen v Baden-Clay (2016) 258 CLR 308; 256 A Crim R 132; [2016] HCA 35
Category:	Principal judgment
Parties:	Garry Zane Glasby (Applicant)
Representation:	Counsel: C McGorey (Attorney-General)   Solicitor: Applicant (self-represented) Crown Solicitor’s Office (Attorney-General)
File Number(s):	1996/1203
Publication restriction:	Nil

Judgment

Introduction

1. The Applicant seeks an inquiry into his conviction for the murder of John Albert Theissl on 6 November 1994. He makes this application pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW).

2. The Applicant initially submitted approximately 120 pages of closely typed, unparagraphed written submissions in support of his application. This was followed by a further tranche of submissions sent on 17 October 2017 that were stated to be in reply to the written submissions of the Attorney-General dated 8 March 2017.

3. A great deal of the second tranche of submissions repeats the initiating submissions. There were some additional points raised with which I will deal later in this judgment.

Procedural background

4. The Applicant was indicted before Sully J on a charge that on 6 November 1994, he murdered John Albert Theissl. He pleaded not guilty and was tried before his Honour and a jury of twelve. The trial commenced on 26 March 1998 and on 24 April 1998, the Applicant was found guilty of murder and was sentenced on 11 June 1998 by Sully J to penal servitude for life.

5. A subsequent appeal from conviction was heard on 27 October 1999, and on 22 June 2000, the Court comprising Stein JA, Hulme and James JJ dismissed the appeal (Regina v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83).

6. The grounds of appeal related to both conviction and sentence.

7. The grounds of appeal were initially 12 in number but were reduced to nine. Those grounds included canvassing the requiring of the Applicant’s wife, Suzette Louise Glasby to give evidence contrary to her wishes (pursuant to s 18 of the Evidence Act 1995 (NSW)). Other grounds dealt with an asserted error in the way the trial Judge dealt with Mrs Glasby’s evidence. It was argued that the trial Judge should have discharged the jury, and that the verdict was unsafe and unsatisfactory. I will return to the grounds of appeal later in this judgment as the detail of the matters considered in that appeal, and the fact that they were comprehensively dealt with by the Court of Criminal Appeal, is directly relevant to this application.

8. The appeal was unsuccessful. The Court of Criminal Appeal held that while there was error in relation to the failure to direct the jury in relation to Mrs Glasby’s evidence from her sentencing hearing, that error did not deny the Applicant a real chance of acquittal, and the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) was applied.

9. The life sentence given by Sully J was also subject to appeal but that ground of appeal was dismissed.

10. An application to the High Court of Australia for special leave to appeal was dismissed in April 2001. The Applicant is currently serving his life sentence.

Factual Background

11. This factual background is extracted from Regina v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83:

[4]   The Crown case was that at about 5.45 am on 7 November 1994 the body of the deceased was found slumped on the floor between the front passenger seat and dashboard of a Range Rover motor vehicle. The vehicle was in a parking area overlooking Lake Gillawarna, adjacent to Henry Lawson Drive, Georges Hall. A fired .22 calibre cartridge case was found on the driver’s side of the front floor of the vehicle. Three .22 calibre long rifle cartridges were found on the ground outside the vehicle. Also found in the vehicle and around the wound to the deceased’s head were tufts of cotton wool. A post mortem examination revealed that the cause of death was a gunshot wound to the right side of the deceased’s head. The time of death was estimated to have been between midnight on 6 November and 5 am on 7 November 1994.

[5]   The Crown alleged that the murder was committed at the instigation of the deceased’s wife, Carmela Theissl, and that the appellant had contracted with her to murder the deceased in consideration of the payment of a large sum of money. The Crown alleged that the appellant and his wife, Mrs Glasby, had both been involved in the murder, the appellant as principal in the first degree having actually done the killing and Mrs Glasby as a principal in the second degree having been present at the time and place of the killing.

[6]   A number of weeks prior to her husband’s death, Mrs Theissl told a relative that she wanted to leave her husband and was moving out of the family home. On 17 October 1994 police had attended the Theissl family home in relation to a domestic dispute between the deceased and his wife. As a result, police had obtained an Apprehended Violence Order against the deceased.

[7]   Following the discovery of the deceased’s body police interviewed the deceased’s wife. She informed them that the deceased had been a member of a Swinging (wife swapping) Club. A search of the deceased’s home uncovered items relating to such activities. A witness, Mr Gomez, gave evidence that he had met the deceased and Carmela Theissl at a swinging party and that Mrs Theissl had been a reluctant participant. It was the Crown case that the deceased was lured to a meeting with the appellant using the promise of a sexual liaison with Mrs Glasby as the bait.

[8]   A search of the deceased’s clothing and personal effects revealed a notebook entry which read ‘Kaila, 8.30, 10 Glassop Street, Bankstown’ and a second note on a piece of paper which read, ‘Steve & Kayla, 9.30 at Villawood Station, 726 0105’. The telephone number on the note was for a telephone service connected to premises occupied by the appellant and Mrs Glasby. Records of telephone calls made from a mobile service in the name of Carmela Theissl revealed a number of calls to the Glasby number, 726 0105, between 22 October and 15 November 1994.

[9] During 1994 an inquiry pursuant to s 474 of the Crimes Act 1900, in relation to the conviction of Kevin Gallagher for the murder of Edward James Lloyd within the Parramatta Gaol on 18 September 1981, was commenced before James J. Mr Paul Blacket of Counsel was appointed to assist his Honour and Detective Stinson was appointed to work under the direction of Mr Blacket. During the course of that inquiry a statement dated 3 November 1994 was made by the appellant. As a result of that statement Mr Blacket requested that Gallagher’s solicitor arrange for the appellant to contact him. On 10 November 1994 the appellant telephoned Mr Blacket. During the conversation the appellant told Mr Blacket that he feared Gallagher and that he was concerned that Gallagher was going to ‘set him up’. He also mentioned the name John Theissl and a .22 calibre rifle.

[10]   On 13 November 1994 Mr Blacket and Detective Stinson visited the appellant. The appellant told Mr Blacket that Gallagher had threatened to implicate him in the murder of Theissl if he did not co-operate with Gallagher by giving evidence at the inquiry. Detective Stinson asked the appellant what he knew about the Theissl murder. The appellant said that two days before Theissl was killed, he was at Gallagher’s house and that Gallagher had asked him, and a person named Arthur Loveday, if they were interested in doing a job with him, a contract job. The appellant said that he could not remember if Gallagher actually said that he wanted them to ‘knock a bloke’, but that was what he took it to mean. The appellant said that he and Loveday both said that they were not interested. Gallagher did not mention who was to be killed on the job. Detective Stinson asked the appellant why he thought the conversation had anything to do with the Theissl murder and the appellant replied, ‘Because he asked us to do the job and two days later I bought a paper and read about the murder. I’ve still got the paper, it’s there’. The appellant then retrieved a newspaper opened at an article on the killing of Theissl. The appellant told Detective Stinson that when he read the article he ‘freaked out’ and thought, ‘maybe I’d been set up for it’. Detective Stinson asked the appellant why Gallagher would want to set him up and the appellant replied, ‘I don’t know, he just told me he could have done it if I gave him any trouble’.

[11]   On 28 November 1994 police undertaking surveillance of Mrs Theissl observed her meeting with the appellant at a shopping centre near her home. On 13 December 1994 two listening devices were installed in the appellant and Mrs Glasby’s mobile home. On 16 December telephone intercepts were placed on Mrs Theissl’s home and mobile telephone services. On that same day a conversation between the appellant and Mrs Glasby was recorded which, the Crown contended, related to a complaint that they had still not been paid by Mrs Theissl after 7 weeks. On 17 December the appellant was recorded talking to an unknown male and describing how he had killed a man. It was the Crown case that the appellant was talking about having killed Theissl. The appellant admitted in his evidence that this was the purport of the conversation but explained that it was drunken bragging to impress.

[12]   On 19 December 1994 detectives visited the appellant at his home and spoke to him about the Gallagher inquiry and the murder of Theissl. After the police left the appellant said to Mrs Glasby, ‘Hey, they kept fuckin trying to nail it down, as if I knew Carmela, right, before fuckin all this shit went down’. The appellant and Mrs Glasby were then observed leaving the premises, driving to a convenience store and then to a telephone booth where the appellant was seen holding the handpiece to his head.

[13]   On 22 December 1994 police attended the Glasby’s home and spoke to Mrs Glasby. After the police left Mrs Glasby and the appellant discussed the need to speak to Mrs Theissl. Telephone intercepts on Mrs Theissl’s mobile phone recorded arrangements being made between the appellant and Mrs Theissl to meet at David Jones at Parramatta later that day. Police observed the meeting taking place as planned.

[14]   Later on 22 December 1994 Mrs Theissl was arrested for the murder of her husband. During the early hours of 23 December the appellant and Mrs Glasby were also arrested for the murder. During a search of the appellant’s premises, a note addressed to ‘Carmella’ was found on a coffee table in the lounge area.

[15]   Mrs Glasby was called to give evidence in the Crown case. She said that she knew who killed John Theissl, that it was the not the appellant, but that she was not prepared to name the person who had carried out the murder. She said that she played a part in the killing of Theissl. On the night of the murder she went to the person’s house at an address which she refused to name. She understood that the person, a man, wanted her to go to his place because he had arranged to take out a contract on Theissl. She drove the man back to her home. The man talked to her and she knew what was going on. She refused to say what was mentioned in the car but said that she believed it concerned Theissl. When they reached her place the man got out of the car and left.

[16] Pursuant to the provisions of s 38 of the Evidence Act the Crown was granted leave to cross-examine Suzette Glasby. This is the subject of ground 3 in the Notice of Appeal.

[17]   Following her arrest Mrs Glasby participated in an ERISP interview in which she denied any involvement by either herself or the appellant in the murder of Theissl. After some excerpts of listening device recordings were played during the course of the interview Mrs Glasby indicated that she wished to terminate the interview. She was then taken to the dock area and allowed to speak to the appellant, after which she said that she wished to be reinterviewed and to tell the truth about the matter.

[18]   During the second interview Mrs Glasby told the police that Mrs Theissl told the appellant that she and her children had been maltreated by John Theissl. She said that Carmela Theissl asked the appellant to carry out the contract killing of the deceased in return for the payment of $50,000. Mrs Glasby told the police how she and the appellant, using the aliases Kayla and Steve, had lured the deceased to his death by pretending that she would be made available to him for sexual gratification. She described having seen the murder weapon under the matrimonial bed a couple of days prior to the murder and having taken that weapon to a place and handing it to the appellant in anticipation of him using it to murder the deceased. She told how, later, the appellant described to her how he had shot the deceased. She described how she had disposed of the weapon and of the clothing worn by the appellant by throwing them into the Prospect Creek.

[19]   Mrs Glasby stood trial for the murder of John Theissl. On the second day of her trial she pleaded guilty. Sentence proceedings took place on 20 October 1997 and on that day she gave sworn evidence. In that evidence she said that about two weeks prior to the killing the appellant asked her to drive him to the car park of McDonald’s at Villawood. She did so and saw him meet Mrs Theissl. He returned to the car with $2,000 which Mrs Theissl had given him. The appellant told her that Carmela Theissl had offered him $40,000 to kill her husband because he had been molesting their children. The appellant told her that he did not want to kill Theissl but was going to take advantage of the situation by trying to extort more money from him.

[20]   About a week later she drove the appellant to a second meeting with Mrs Theissl at shopping centre carpark near where she lived at Northmead. Mrs Theissl gave the appellant a gun and some ammunition to be used in the killing, as well as a telephone number. During the week prior to the murder, the appellant told Mrs Glasby that he had arranged to meet the deceased at Villawood Station on the Thursday night and that she was to be used as bait, in effect, to lure the victim there. As planned, she drove the appellant to Villawood to near where Theissl was waiting. However, she refused to leave the vehicle. She and the appellant argued and they drove off without having made contact with Theissl.

[21]   A further arrangement was made between the appellant and Theissl. Again, they were to meet at Villawood and again she was to be used as sexual bait. On this occasion the appellant made contact with Theissl. The appellant got into the victim’s vehicle and Mrs Glasby followed them in her vehicle. At one stage the victim’s vehicle stopped, the appellant alighted, returned to Mrs Glasby’s vehicle and retrieved a bag containing the gun. The appellant returned to the victim’s vehicle; got into the driver’s seat, the victim having moved into the passenger’s seat; and drove off at high speed, Mrs Glasby following in her car.

[22]   The appellant drove to the carpark at Lake Gillawarna. Mrs Glasby parked nearby. She saw the appellant walk from the driver’s side to the passenger’s side of the vehicle. The appellant had the gun in his hand and was shaking it. He pointed the gun into the window of the vehicle and fired. She saw the appellant wiping the door of the vehicle. He returned to the car and she drove him to a cul-de-sac near the Georges River. The appellant removed his clothes and put them and the gun into a bag. He got out of the car, weighted the bag with rocks and threw it into the river. She drove the appellant to Carramar where he got something to eat. Then she drove him to a phone booth where he telephoned Carmela Theissl.

12. The Applicant gave evidence and was cross-examined as the trial. He said that he did not kill the deceased, but that he was present when there was a discussion about the killing of Theissl between an acquaintance, “Gallagher”, and a Mr Loveday.

Proceedings in the Court of Criminal Appeal

13. Nine grounds of appeal were argued by counsel for the Applicant. The first two related to the compellability of Mrs Glasby to give evidence at her husband’s trial. Those grounds were thoroughly dealt with and rejected by the Court in its joint judgment dated 22 June 2000.

14. Ground 3 related to leave to cross-examine Mrs Glasby under s 38 of the Evidence Act. This argument was dealt with in detail in the judgment, [56]-[62] inclusive. It was determined that there was no merit in this ground, that the trial Judge’s decision to grant leave pursuant to s 38(1)(a) and (c) was entirely appropriate and was a discretionary decision which had not miscarried.

15. Grounds 4, 5 and 6 related to the use of Mrs Glasby’s evidence at the trial. The Court dealt with these grounds in detail in [63]-[98] of the judgment. Whilst recognising that with the hindsight of Lee’s Case it is apparent that many of the representations by Mrs Glasby should not have been admitted, or if admitted clear directions should have been given to the jury of the purpose of the evidence and the use sought to be made of it ([84]), in considering whether the Applicant had lost a chance of being acquitted which was fairly open to him by reason of the error, the Court concluded at [98] that there was no such loss:

[98] ...A jury, acting reasonably on the evidence before them, would have inevitably convicted the appellant of murder in the event that the representations that Mrs Glasby says that the appellant made to her had either been excluded or an appropriate direction given to the jury concerning their use. In either of these events, the Crown case against the appellant was still very strong and the appellant’s case weak and implausible. It would have made no difference to the verdict. We do not see that there was any substantial miscarriage of justice. The proviso to s 6(1) of the Criminal Appeal Act should be applied.

16. Ground 7 was abandoned. Ground 8 was framed based on some language used by the trial Judge regarding the “accepting” of the evidence of the Applicant. It was asserted that the trial Judge erred in law in misdirecting the jury as to the need for the Applicant’s evidence to be accepted and that by saying this, the onus of proof had been reversed. This ground was rejected because when reading the summing up as a whole, it was “impossible to see how the jury could have been under any misapprehension as to who had the onus of proof” [104].

16. Ground 9 argued that the jury should have been discharged because of various remarks made in the presence of the jury by Mrs Glasby while she was giving evidence. This ground was analysed in detail in [105]-[129]. Applying the test in Crofts v R (1996) 186 CLR 427 at 441; 88 A Crim R 232 at 242; [1996] HCA 22, the question was not whether the trial Judge’s refusal to discharge the jury was correct, but whether it occasioned the risk of a substantial miscarriage of justice. The Court said that there was nothing in the evidence, or in the other matters arising under or relevant to that ground which, considered alone or in conjunction with matters previously dealt with, persuaded the Court that this question should not be answered in favour of the Crown. The Court concluded at [129], “Indeed, we are positively persuaded that there was no miscarriage of justice”.

17. Grounds 10 and 11 were not pressed. The overarching assertion made in Ground 12, that the verdict was unsafe and unsatisfactory, was dismissed, as it was posited on the basis that if Mrs Glasby’s evidence was excluded, the verdict was unsafe and unsatisfactory. In light of the conclusions the Court had already reached, that ground also failed.

18. The Applicant filed proceedings in the High Court on 16 August 2000 seeking special leave to appeal and formulating the question for special leave as follows:

Whether the Court of Criminal Appeal erred in law:

(a)   In requiring Suzette Louise Glasby, the Applicant’s wife, to give evidence contrary to her wishes both generally and as to marital communications;

(b) In giving leave to the Crown to cross-examine Mrs Glasby under s 38(1)(a), (c) of the Evidence Act 1995 (NSW);

(c)   That if leave was appropriate, Mrs Glasby’s previous evidence on oath was admissible as evidence of the facts;

(d) In applying the proviso under s 6(1) of the Criminal Appeal Act 1912.

20. The application was dismissed on 6 April 2001 after oral submissions from counsel for the Applicant (Glasby v The Queen S163/2000 [2001] HCATrans 143). The Respondent was not called upon. The Court comprising Gleeson CJ and Kirby J stated that:

“there was not sufficient prospects of success of an appeal to warrant a grant of special leave and that the decision of the Court of Criminal Appeal that there was no miscarriage of justice, in particular, no miscarriage in relation to the admission and use of the evidence given by Mrs Glasby, was correct.”

Applications under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

21. Section 78 of the Crimes (Appeal and Review) Act 2001 (NSW) provides that an application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

22. Section 79 of the Act provides for consideration of such applications:

79 Consideration of applications

(1) After considering an application under section 78 or by its own motion:

(a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)   Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)   The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a)   it appears that the matter:

(i)   has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii)   has previously been dealt with under this Part or under the previous review provisions, or

(iii)   has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv)   has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b)   the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A)   …

(3B)   …

(4)   Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5)   The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

23. The type of referral or direction under sub-s (1) may only be made if, after considering the application, I am of the view that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case.

24. Pursuant to sub-s (3), I may refuse to consider or otherwise deal with the application for reasons including if it appears the matter has been fully dealt with in the proceedings giving rise to the conviction or sentence, or in any proceedings on appeal from the conviction or sentence (s 79(3)(a)(i)). I am not satisfied that there are special facts or special circumstances that justify the taking of further action (s 79(3)(b)).

25. Consideration of an application such as this pursuant to Pt 7 of the Act is administrative, not judicial in nature (s 79(4); Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 at 48-50; 24 A Crim R 413 at 431-432; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 361-362 [124]; 140 A Crim R 472 at 506-507 [124]; [2003] HCA 28 at [124].

26. Part 7 of the Act is remedial in nature and provides a mechanism by which an individual may seek to address some material doubt about the legitimacy of his or her conviction or sentence: see Wilson J in Application by Ali Hussein pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1855 (“Hussein”) at [39], referencing Basten JA in Sinkovich v Attorney General for the State of New South Wales (2013) 85 NSWLR 783 at 796 [52]; 238 A Crim R 323 at 336 [52]; [2013] NSWCA 383 at [52].

27. As explained by Wilson J in Hussein, the legislative background to Pt 7 of the Act came from s 383 of the Criminal Law Amendment Act 1883 (NSW) at a time when there was no formalised process for appeal against conviction or sentence, or for judicial or executive review. In 1912, the Criminal Appeal Act brought with it a more general right of appeal. It is evident that Pt 7 of the Act is not intended to operate as a substitute for the appeals process. As Johnson J said in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [9]:

The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn [2005] NSWSC 857 at [9]; Application of Milat [2005] NSWSC 920; (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.

28. I have borne in mind these principles and considerations in making my decision to dismiss this application.

Arguments raised by the Applicant

29. The Applicant’s submissions and appeal grounds were included in one long document and asserted multiple legal authorities from both Australia and England that were all irrelevant. To the extent that complaints can be gleaned from the submissions, as they are not extracted, enumerated or clearly identified or distinguished in any discrete fashion, the complaints seem to be as follows:

1. Incompetence of defence counsel at both the trial and on appeal;

2. Insufficient dealing by the Court of Criminal Appeal with the finding that the trial Judge misdirected the jury regarding the use it could make of communications between the Applicant and his wife;

3. The failure by either the trial Judge or the Court of Criminal Appeal to properly deal with the issue of the protection of communication between spouses and the non-compellability of spouses;

4. That s 18 of the Evidence Act 1995 (NSW), dealing with compellability of spouses and other in criminal proceedings generally is an illegitimate provision given the necessary religious and other freedoms and that the domain of marriage is rightly in the hands and authority of religious orders and that the Evidence Act creating a compellability of spouses is against those freedoms;

5. Insufficient attention by the Court of Criminal Appeal to the Applicant’s wife’s testimony being “against all the expert witness evidence and evidence in the case” and that she had fabricated evidence;

6. The failure by the Court of Criminal Appeal to deal with the “well-established position” that the Applicant’s wife had bias against the Applicant;

7. The way the appeal was run by counsel left out critical letters the Applicant wrote for the Court of Criminal Appeal’s assistance regarding grounds of appeal;

8. The trial Judge allowed examination of the Applicant on material that suggested the Applicant was a contract killer that was inadmissible and therefore denied the Applicant a chance of a fair trial;

9. Insufficient and unfair dealing with some of the product from telephone intercepts presented or not presented as evidence as the trial;

10. Expert evidence regarding the time of death changed from the time given at the Applicant’s committal hearing of “between 12:00 am and 9:25 in the morning” to the position at trial that the murder was possibly committed “as early as 8:30 am the prior night” [sic]. It is argued that this is different from the expert report as he understood it that the murder could not have occurred “prior to 12:00 pm and no later than 5:00 am” [sic].

11. The Court of Criminal Appeal’s dealing with the Applicant’s wife’s evidence as “hostile” and against the Crown case, was insufficiently dealt with on the appeal.

12. At trial the evidence of the Applicant’s wife was provided to the jury in typed form so his counsel could thus not test the witness and the Applicant’s version was not able to be put to the jury in typed form and this was unfair.

13. All of the Applicant’s wife’s evidence should have been excluded from his trial.

14. A witness called Jason Ringrose can provide fresh evidence because he was at Lake Gillawarna car park at the time of the “victim being there in the car” [sic] but because Ringrose’s brother was a police officer, Ringrose was told by police to “keep quiet” and nothing about him was included in the police brief.

15. The Applicant had no access to tape players to listen to what evidence was going to be given at trial by way of telephone intercept.

30. The submissions also requested the issuing of approximately 60-70 subpoenas, the relevance of which was very difficult to follow.

31. A further tranche of submissions was sent by the Applicant in October 2017, purportedly in response to the submissions provided by the Crown in March. These submissions repeated much of the applicant’s material in the initial submissions. However, some further complaints were made: allegations about there being “no compellability of paedophiles” at the Royal Commission into Institutional Responses to Child Sexual Abuse, taking issue regarding the validity of s 18 of the Evidence Act because parliamentarians in place at the time of its enactment may not have had any right to sit due to dual citizenship, and appending documents purported to be letters handwritten by Jason Ringrose. The Applicant asserts that these letters are “an admission” that Jason Ringrose was at Lake Gillawarna on the night of the murder but had been “protected” because Ringrose’s brother was a police officer.

32. Four undated handwritten letters signed by “Jace” or “Jason” were attached. There is no reference within them to any knowledge of what occurred on the night of the murder. The only relevant content seems to be a vague reference to being in a particular place smoking drugs in a car on an unspecified date; possibly the night of the murder:

Well in answer to your question I did not see in the four-wheel-drive me and my mate were just pulling cones in the car park. Neither of us got out of the car as it was still coming on morning and we went without even looking around. First that I knew about what happened was when I drove past at about 10:00 am there were cops everywhere it wasn’t until later that night that I sore it on TV that I knew what had happened their. As for your other question, I only once ever seen the police and that was when you told me to go see them and that was the only time that I had ever spoke to them. It had nothing to do with my brother. I’m sorry that I can’t help you more but that is all that I remember. [sic]

Consideration of arguments raised by the Applicant

33. As can be seen from the framing of the extracted complaints set out in [29] of this judgment, the vast majority of matters raised in the application and submissions are essentially complaints about the result in the Court of Criminal Appeal and the refusal of the High Court to grant special leave to further pursue some of those complaints.

34. Items that I have numbered 1 and 7 in [29] relate to decisions made by counsel at trial or on appeal to “not run” evidence the Applicant wanted to put before the Court, or complaining that his counsel were incompetent. As stated by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 683-685; 48 A Crim R 385 at 390-392, a litigant is bound by the decision of his counsel:

In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:

“… His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client's interests are thereby prejudiced.”

…

As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

35. The principle was articulated by the High Court this way in The Queen v Baden-Clay (2016) 258 CLR 308 at 324 [48]; 256 A Crim R 132 at 142 [48]; [2016] HCA 35 at [48]:

‘…a criminal trial is accusatorial but also adversarial. Subject to well defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue”.’

36. Items 8, 9 and 10 were all within the remit of matters that were or either directly or implicitly raised in the appeal. Items 11, 12 and 13 were clearly raised on appeal and were canvassed extensively in the judgment of that Court.

37. The letters purported to be by a person called Jason Ringrose do not progress the matter at all as they are unverified and non-specific, and seem to disavow on their face the very matter the Applicant suggests they support, i.e. that Ringrose witnessed the death of Theissl.

38. Complaints regarding access to tape players during the trial are matters about which I can form no view other than to note that, at the trial, the Applicant was represented by highly competent Senior Counsel. The complaint made now has no merit.

39. The additional matters raised in the October 2017 submissions, namely the failure to “compel paedophiles” to give evidence at the Royal Commission, and the argument for invalidity of the Evidence Act because of the dual citizenship issue possibly relating to parliamentarians who passed that legislation are irrelevant and/or entirely without merit and do not warrant any further analysis.

Submissions on behalf of the Attorney-General of New South Wales

40. The Attorney-General submitted that there appeared to be six areas of content in the Applicant’s submissions as follows: First, that Mrs Glasby was not lawfully compellable as a witness to give evidence in the Crown’s case against him. Second, that Mrs Glasby’s evidence was wrongly admitted. Third, that matters relevant to Mrs Glasby’s credit and reliability that were not raised in the trial. Fourth, evidence about a handwritten statement that the Applicant signed on 3 November 1994 and the cross-examination of the Applicant about that statement was not properly dealt with. Fifth, inadequate disclosure of listening device recordings. Sixth, the competency of the Applicant’s representatives at trial and in the appeal.

41. It was submitted as a matter of general principle that the Applicant is bound by the forensic decisions made by his counsel. Second, it was said that there is no basis to infer that any forensic decision made by them was unreasonable, and no evidence had been provided in support of any contention to that effect. I accept each of the propositions as correct.

42. I also accept the submissions that there was no basis to conclude that the matters raised would have materially impacted the outcome of the trial or the subsequent appeal, particularly having regard to the totality of the evidence of the Crown case.

43. The Applicant’s complaint that he was denied the use of a prison tape player prior to his trial, that not all the listening device recordings were disclosed, and that listening devices were employed at his home address at Carramar at the time Mr Theissl was killed, but that material was withheld is not supported by any evidence. In particular, it is not clear on what basis the Applicant asserts that listening devices were installed in his residence prior to Mr Theissl’s death. I accept this submission and the overarching submission that no appearance of a doubt or question arises with respect to the Applicant’s guilt or any part of the evidence in the Applicant’s case on the basis of these complaints.

Conclusion

44. Whilst this judgment is not long, a large amount of time was required to read, dissect, and extract relevant issues from the material put forward in support of this application. The written submissions were repetitive and unfocussed.

44. It is evident that the vast majority of matters raised by the Applicant have been comprehensively dealt with at trial and on appeal (s 79(3)).

45. I have no unease or disquiet about the Applicant’s guilt, and in the terms of s 79(2), I am not persuaded that there is any doubt or question as to his guilt or as to any mitigating circumstance in the case, or as to any part of the evidence in this case, and I am satisfied that there are no special facts or circumstances that justify the taking of any further action.

46. The application is refused.

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Decision last updated: 27 February 2018