Glasby v The Queen

[2001] HCATrans 91

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S163 of 2000

B e t w e e n -

GARRY ZANE GLASBY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 APRIL 2001, AT 11.52 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:  If the Court pleases, I appear for the applicant.  (instructed by Jeffreys & Associates)

MR N.R. COWDERY, QC:  May it please the Court, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecution)

GLEESON CJ:   Yes, Mr Papayanni.

MR PAPAYANNI:   This was a case that involved the question as to section 18 but it involves the question as determined in…..Case as well and his Honour, in relation to this question that the wife of the accused, which is set out in section 18, decided to have her advised by a Mr Allen from the Legal Aid Commission and that was done, and his Honour then, as well as Mr Allen, did not consider the necessity for her to be represented.  Now, the Court of Criminal Appeal determined this matter on the question as to the immunity, they called it, or the right of the accused.

What it should have been determined on was the right of the witness.  Now, if that had been done, then the normal procedure in relation to these matters, is to have the person separately represented, and one can see that when the section, the first of “the spouse, de facto spouse, parent or child” and a child offers an objection to giving evidence, the child will need to be separately represented.  These days, of course, one is taken by surprise on some occasions when the father of the defendant or accused is suddenly called to give evidence and separate representation is essential in those cases.

Now, in determining the matter on the basis, unrepresented, it meant that the witness who is objecting to giving evidence and she has already on the voir dire committed perjury, so she comes under section 128 also, as well as being an accomplice, his Honour did give here a caution in relation to section 128 but the whole of her evidence was perjury.  On 21 October 97, she had given evidence on oath, on that occasion.  When she gave evidence in the trial it was on affirmation, but I do not think there is any difference in that respect, and I call it sworn evidence, and the Crown, on the first occasion, had, when she gave evidence on the sentence proceedings, cross-examined her as to her credit in relation to the evidence that was contained in that sworn evidence on 21 October on her sentence to show that there were doubts as to the validity or credit that should be attached to it.

Then in the trial itself, in this trial, the Crown adopted that evidence as a foundation of the case against the accused.  Now, there used to be, one used to call it reprobate and approbate, but perhaps that has fallen into desuetude as they say.  Now, the question of being represented in respect of her right, because the accused could take no part in the question, except to advise his Honour as to the law, assist his Honour in any way in that respect, and the defence counsel did, in fact, submit under section 137 that none of the evidence should be admitted and also under section 18(7) that his Honour should have reference to that.

Now, his Honour, when giving the judgment in this matter, in relation to section 18(6), where it sets out the “harm” the likelihood of “harm . . . to the person, or to the relationship”, his Honour said there was no guidance in authority or authority in that respect.  That is at page 232 of the application book.  Now, what, in our submission, should have been done, is that the witness should have been separately represented.  The Crown had given no proof of the evidence that she was to give in this case except to indicate that she was going to be cross-examined - leave was going to be asked for under section 38 and she would be cross-examined in relation to the evidence she had given on 21 October 97.  That was on her sentence as sworn evidence.

So you have the situation then, the Crown examines her as to what evidence she is going to give in relation to the question under section 18(6) as to the likelihood of harm, et cetera.  She then came up with certain threats and she also referred to the rehabilitation with her husband.  Now, one of the difficulties there was the Crown obviously had not interviewed her beforehand except as to the question as to whether she was going to give evidence.  She had indicated on the voir dire that what she had said before was lies and that her husband did not commit the crime.  Now, it was quite obvious then that she was going to repudiate what she had said in October 97.

So, in relation to 18(6), if she had had representation, she could have brought separate evidence as to the threats.  She could have brought separate evidence from the accused even, as to the relationship.  She could have produced letters that had been written and other information in that respect and there could have been an argument put in that respect rather than leave it to the Crown who was against her and wanted her to give evidence, and the evidence that she did subsequently give, of course, was not relevant at all to the issues before the Court.  So then his Honour had to go to section 18(7).

Now, the only matter that his Honour had in that respect was his knowledge - his Honour had also been in the trial of the wife - was the evidence that she had given on 21 October 97.  There was no evidence before his Honour, and his Honour under that has to look at the substance and importance and weight to be given to the evidence under section 18(7).  All he had before him was this transcript, I assume, of the 21 October 97.  His Honour was aware of that, as I said, because he was the trial judge in that matter.  So his Honour then had before ‑ ‑ ‑

KIRBY J:   Would you agree with the decision of the Court of Criminal Appeal that when one has regard to the tapes of 17 December 1994 of the intercepted telephone conversation and other material, that this was a very strong Crown case against your client?

MR PAPAYANNI:   Well, they all say that, your Honour.

KIRBY J:   Yes, but it does look to me as if one just takes that ‑ ‑ ‑

MR PAPAYANNI:   If her evidence is not accepted, it is a very weak case.  The only evidence they had then was a certain ‑ ‑ ‑

KIRBY J:   But they had the voice of your client.

MR PAPAYANNI:   Boasting that he had killed Theissl and that was when he was in a hotel.  But here was the evidence, here was a witness who was the wife of the accused, who had been interviewed ‑ ‑ ‑

KIRBY J:   I do realise that, but I have asked you to put that to one side at the moment and just look at the rest of the evidence against you.

MR PAPAYANNI:   Well, there is conflict in ‑ ‑ ‑

KIRBY J:   Your client really had to explain that, as he did, that he was just boasting.

MR PAPAYANNI:   That is correct, but on its own it would not have been sufficient to say that it was a strong case because the evidence that was given by the witnesses, that was the four witnesses, Yorke, Szymfeld, Bulic and Gammidge, was contrary to the evidence given by the wife and showed that it could not have happened the way she said.  Now, not only that, you have the forensic evidence which showed - and this is accepted - that the deceased was not in the car when the first shot was fired through the passenger window, and she had described the fact of - there were differences about the gun and how he got the gun as to whether the wife gave him that or he got it that night, that getting out of the car that he was driving and going round to the passenger window and firing the shot inside then.

It was accepted by the forensic evidence that this could not have happened, that there was no one in the passenger side of the car at that time.  Then she says he went around to the driver’s window and fired the shot then and, of course, the evidence also, then - and his Honour said this - was there was a strong case to show that the person was outside the car when he was shot.  Now, not only that, the question as to blood and so on, there were only smears of blood, there was no blood and so on inside the car, and in that respect also.  Now, the witnesses themselves had given - these were independent witnesses which the Crown said were mistaken yet they identified the Range Rover car in which the deceased was allegedly shot.

Each witness identified the car by showing a picture of it as it was and the evidence from the girl was to the - the daughter - was to the effect that her father had left about 8 o’clock.  Now, on that, and counsel went through the steps as to getting to Lake Gillawana.  He would have been killed about 8.30 pm or at the most at 9 o’clock, because this was not very far away from his home.

Now, the witness, the four witnesses I mentioned, gave evidence that the car, the Range Rover, was seen at 8 pm at night or 8.30 pm, then again at 11.50 pm and then by other – these are different witnesses – then at 3 o’clock.  And then they came back, because as they saw the car at 3 o’clock, saw a Commodore.  The persons that saw the car earlier saw three or four cars there at 8 o’clock.  Then at 3 o’clock the situation was it was seen by one person who came back at 9.30 and saw the same car in the same position and gave evidence to that effect.  Each witness gave evidence that it was the same car.

Now, on her statement - and there was a note in the accused’s wallet to the effect that Steven Taylor has a meeting at 9.30 pm.  Now, on her evidence – they met at about 8 or 8.30 pm, which meant that it could not have happened, and, of course, from that they would have arrived at the position at Lake Gillawana at somewhere around 8.30 or 9 o’clock, and would have been killed about that time according to her evidence.  Yet, according to her, this was the evidence she had given, that she picked – this was in the statement also – picked up the deceased man about 8 o’clock or 8.30 at Villawood station in McDonald’s.  So the time of death was between midnight and 5 am, so, according to her evidence, and the Crown said, “Do not accept these witnesses that we have called, they are mistaken, except the wife in that respect.”

Of course, one has to remember here in relation to that, the court had – and the question of whether this was to be limited to the evidence on the 21st October was to be limited or not, was argued just before the addresses.  So the whole trial was run on the basis that one did not know whether his Honour was going to decide that the evidence of 21 October was evidence of the fact under section 60, and whether the record of interview, which was on 23 December 94, was to be evidence of the fact or limited to credit.  That was decided just before the addresses of counsel, and his Honour then decided that the evidence of 20 and 21 October would be evidence of the fact under section 60, and that the other evidence in the record of interview would be evidence as to credit only.

Now, of course, this, in effect, meant that there was considerable unfairness because here was a situation where she gave evidence in the trial, which was impossible to believe, that she was an accessory to murder by reason of the fact that she had picked up the killer, whom she would not name, from his home – she could not say how she got there, really – and that she drove him to her home where the accused was, and then she left him, and that was all she said about her complicity in the murder.  His Honour said, “You can accept this.  The Crown has to prove beyond a reasonable doubt that that was untrue, that statement.”  Well, there would be no difficulty about that because no one would believe that.  Then, as against that, “You can accept beyond reasonable doubt” and told them about unreliability and dangers and also, but his Honour in no stage ever said anything about corroboration as an accomplice.  He referred to dangers and so on.

The jury had before them to decide which of the two they would accept.  So they decided, in effect, to accept in part the sworn evidence, but as against that, the jury were not invited also to look at the record of interview and treat that as fact.  So you had the situation there in relation to that that they had the two situations.  Now, in my submission, that was unfair in that respect.

Now, in relation to the question as to – since time is running out, I had better deal with it – section 38, his Honour did not deal with section 38 in accordance with section 192.  All these factors in relation to the unsatisfactory nature of the evidence would be relevant to the fairness question under section 192, they would be relevant to section 103 in relation to the substantial probative value.  They would also be relevant to 103(4) in relation to the question whether she could be believed.  They would also be relevant to the question of the proviso.

Now, here was a person who was sentenced to the term of his natural life, and a proviso is a test duly accepted that all this evidence in relation to what she had been told.  Now, she had been told – her evidence was to the effect that “Garry”, that is her husband, “told me he killed him.  Garry told me the arrangement with Carmela in relation to taking out a contract.  Garry told me about the amount of money he was going to receive, differences about that,” and so on.  You have the whole situation there in relation to all those matters, and the jury could have accepted the situation in relation to what he was told, because there was no evidence to the contrary.

The accused’s counsel could not cross-examine her about what she had been told; could not cross-examine about what she had said in the

record of interview.  Could not cross-examine effectively in relation to the evidence of 21 October because she said that was not true.  So you have a situation there where it is an impossible situation where the jury may have believed this evidence which the Court of Criminal Appeal held was inadmissible under Lee’s Case, of course, and in Lee’s Case the situation was that the proviso was not applied in relation to one admission.  Here you have a number of admissions.  The pages here that are set out are page after page of what she had been told, and you have the situation there – and those pages were 53 to 70 and 80 to 95, a number of pages there in relation to all this evidence. 

So you have a situation where here is a person for the term of his natural life, which is probably, some may say, worse than an execution, and applying a proviso on that.  There are very few, if any, cases where the proviso was ever applied in relation to the death sentence or in relation - well, there is none in relation to for the term of natural life; the proviso after two significant errors have been acknowledged by the Court of Criminal Appeal, both in relation to the record of interview and in relation to the fact that there was sworn evidence.

What is more damaging than a question, such as, “Who killed Theissl” and she says, “My husband.”

GLEESON CJ:   Thank you, Mr Papayanni.  We do not need to hear you, Mr Cowdery.

The Court is of the view that there are 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 of justice in relation to the admission and use of the evidence given by Mrs Glasby, was correct.  In those circumstances, the application is dismissed.

AT 12.13 PM THE MATTER WAS CONCLUDED