DPP v Glascott (Ruling no 4)

[2008] VSC 243

IN THE SUPREME COURT OF VICTORIA
CRIMINAL DIVISION		Not Restricted

No. 1468 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN THOMAS GLASCOTT

Ruling No.4

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2008
DATE OF RULING:	21 May 2008
CASE MAY BE CITED AS:	DPP v Glascott (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2008] VSC 243

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Criminal law and procedure – murder – evidence – admissibility.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Horgan SC and Ms S. Borg	Office of Public Prosecutions
For the Accused	Mr R. Sarah	Slades & Parsons

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RULING NO. 4

HIS HONOUR:

1. This is a matter of some difficulty and delicacy and I have given careful thought to it while I was in Canberra the last two days and over the weekend, as I know all counsel have done as well.  Mr Sarah, in a most helpful and comprehensive submission, has put to the court that the evidence holistically of Mr Houlihan, barrister, given on the voir dire and also contained in his statement of 7 August 2006 which appears in the depositions, p.69 to 71, is inadmissible.  He has put that it is inadmissible because it is irrelevant and further that it is prejudicial and further that it is speculative.

1. In a couple of aspects I agree with Mr Sarah but generally I do not and I consider that Mr Houlihan's evidence generally is admissible.  It can be divided into two parts, both logically and chronologically.  One is his evidence of the conduct and statements of the accused before 10 July 2006 and the other is his conduct and statements after 10 July 2006, specifically on 11 July 2006 in two telephone conversations with Mr Houlihan  initiated by Mr Glascott.

1. As to the first period, I consider that Mr Houlihan's evidence of his dealings directly with the accused are relevant because they demonstrate, if accepted, an animus by the accused concerning his matrimonial and financial affairs which in 2000 were handled by Mr Robinson.

1. The evidence bears upon the emotional pathway which the prosecution says in this case led the accused to attempt to torch the premises of Mr Robinson at the front and back on 10 July 2006.  The prosecution case is not that the accused went to those premises on that Monday night in order to kill the deceased, but rather that he went there to punish the deceased by torching his premises and when discovered by the deceased at the rear of the premises, he then killed the deceased with a gun he was carrying.

1. The burden of the prosecution case, psychologically speaking, is that the accused was bitter and brooding over the perceived injustice done to him by the legal system, a part of which was his solicitor Mr Robinson.

1. In the evidence both of Mr Douglas and Mr Antonicelli there is reference to the accused saying that the deceased had messed up the financial settlement.  Mr Douglas, who had known the accused for many years and who is a storeman, said in evidence at p.407, line 11, that the accused said to him, "That David had messed it up or to those words".  Mr Antonicelli, who had also known the accused for many years, indeed since primary school, said that as appears at p.283, Mr Glascott, "told me something to the effect of he lost 70 per cent of his house or something like that and I believe there were documents which David Robinson was meant to process which he didn't process".  It is the statements of the accused to those two persons which are relied upon by the prosecution as providing the evidentiary link between animus of the accused towards the general legal system and to Mr Robinson in particular.  Mr Robinson had drawn up at the accused's behest an agreement with his former wife Tina, but had failed to ensure that that agreement was binding.  Indeed, in the Family Court Mr Robinson was called as a witness by Mr Glascott and the consequence was that Mr Glascott lost 70 per cent of his house and had a financial disaster.  That is how the Crown puts the case.  That was, as Mr Sarah rightly says, the end of that property settlement, but of course as a matter of common knowledge it is well-known that people can carry resentment from legal adversity for years, and in this case the prosecution says there is evidence directly of that being what Mr Glascott did.  That evidence comes from Mr Houlihan, who said that on 11 July 2006 he had sought revenge against his former wife Tina and her husband because of "the property settlement" which expression I consider fairly can be taken to mean the whole property consequence and including the failure by Mr Robinson to ensure that the agreement was binding and the disaster financially for Mr Glascott from that failure.

1. Mr Sarah, however, I think is in error when he says that "Everyone is missing the point" because the later dealings by Mr Glascott were not to do with the property settlement, but were to do with access.  I think it is Mr Sarah who has, with respect, missed the point, because he has put the two into hermetically sealed separate categories, finance and property on the one hand and access on the other.  Again it is Mr Houlihan's evidence on the Tuesday 11 July which connects the two, because it is Mr Houlihan's evidence that the accused said that he was pursuing the access - supposedly irrelevant according to Mr Sarah - because of the property settlement. That is the connection between the two.  Thus, it seems to me generally speaking that Mr Houlihan's prior evidence is relevant as to the animus of the accused in relation to the property settlement; and his subsequent evidence, the two phone calls on 11 July, are relevant to provide the link between the animus and the access issue, which was a continuing issue, thus providing the chronological nexus between 2000 on the one hand and 2006 on the other, they being a continuum of animus, not separate chronologically and not unrelated events.

1. Accordingly, I am generally satisfied that Mr Houlihan's evidence is admissible.  There are four aspects of it which I consider inadmissible.

1. One is, which I have already ruled upon and is not going to be led by the Crown, that Mr Glascott said he "had been forced to bring forward something he had intended to do in the future".  I have ruled that out already, because it is too vague and speculative and has a potential of prejudice and the Crown is not going to lead that in any event.

1. It is also I consider a fallacy in Mr Sarah's submission to seek to separate out two other categories which I consider are not separate categories, and that is of the players, Tina and Josh Davine on the one hand, and Mr Robinson on the other.  True it is that they are entirely separate camps; but the prosecution's submission is that the accused had an animus holistically, that is to say there was a constellation of persons, part of which was his own incompetent lawyer, and I consider that is admissible and probative and can be put by the Crown in that way.  So the separation by Mr Sarah, which on its face is correct is, in my view, inefficacious because it is the group, the constellation, the holism, which is what the Crown properly can rely upon.

1. The next item which I consider should not be led is the phrase "The war's over".  I consider that should not be led for two reasons.  First, it is speculative as to what it refers to.  Second, it has a particular potency and could have a life of its own in the jury room and I think is dangerous and could lead to unfairness as well as speculation, and I exclude it.

1. The next matter I exclude, and I am quite sure Mr Horgan will ensure that this occurs, is any evidence of opinion by Mr Houlihan.  That should be rigorously excluded.  I think Mr Houlihan has a tendency to express conclusions rather than direct evidence, and he ought to be told clearly just to give direct evidence.  Thus the revenge conversation ought to be the actual words as best Mr Houlihan can remember them, or their substance, but not Mr Houlihan's opinion of it.

1. Finally, as I have already said, there must be no mention of paedophilia; and the new one that has emerged today there must be no mention of is that Mr Glascott was in custody at one point of the access proceedings.  That must not be mentioned.

1. Finally, there is a general area which I think is a matter of some difficulty, and that is the general demeanour of the accused towards Mr Houlihan - not personally to him, but his general emotional pitch.  I consider that is relevant because it goes to the question of animus which the prosecution relies upon.  However, again, it is most desirable that no prejudicial material comes in under that heading, and that needs to be carefully watched.

1. In relation to the contrast in tone between the previous dealings and the Tuesday morning, I think that ought to be handled very carefully.  Theoretically, none of it should be led.  I think Mr Horgan and Mr Sarah ought have a professional consultation together before two o'clock about that, because it may be that if the conversation goes in, it is appropriate for some contextual evidence to go in, but if Mr Sarah is of the wish that no reference to the change in tone is referred to, I think then the change in tone should not be referred to.  It may be preferable for Mr Sarah to think about that rather than make a submission now.  If the defence does not want any reference to the change in tone, then I consider that only the conversation ought be led, that is to say what Mr Glascott said in the two conversations on the Tuesday, and no reference to the demeanour made in evidence by Mr Houlihan.

1. I hope that assists counsel in knowing the guidelines for the evidence.

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