Glascott v The Queen - [2015] HCATrans 22

[2015] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M49 of 2014

B e t w e e n -
JOHN THOMAS GLASCOTT
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 9.55 AM

HAYNE J: Well, Mr Silbert, I see you appear for the respondent. Is there any appearance for the applicant?

MR G.J.C. SILBERT, QC: I do, with MS K. ARGIROPOULOS who will make any reply if called upon to respond, your Honour. There was an opponent here five minutes ago. (instructed by Solicitor for Public Prosecutions)

HAYNE J: Well, is Mr Hands in court? If not, we will go on to application No 3, Mr Silbert, I am sorry.

MR SILBERT: He is here, your Honour.

HIS HONOUR: Yes, Mr Hands.

MR A.L HANDS: Good morning, your Honours. I appear with MS K.C. GILLIES for Mr Glascott. (instructed by Monash‑Oakleigh Legal Service)

I have 20 minutes to convince you that he has an arguable case and the situation is that what I want to focus on, your Honours - I tendered very late an expert witness statement by Ms Jane Taupin. I do not seek to rely on that in relation to new evidence, but I do say it highlights the fact that my client did not get a fair trial and that should have been done by his trial counsel. Not only did he not get a fair trial, he did not get a fair hearing in the Court of Appeal, your Honours. So the argument is this, that the starting point for this application is sections 24 and 25 of the Charter of Human Rights. Your Honours will have a copy of that – and it provides that:

A person charged with a criminal offence . . . has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

If you go to section 25, it provides at (2)(f):

to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978 –

It is modelled on the International Covenant on Civil and Political Rights. It is slightly different wording. It is very similar to the ACT Charter and it is similar to the European Convention on Human Rights, section 6(1) and 6(3)(c). It should have applied to the Court of Appeal’s decision. It was not argued by Mr Glascott. Mr Glascott appeared in person. He was a person who was forensically disadvantaged because he was: (a) convicted of murder; (b) because he had no legal training; (c) because he was opposed to a silk and counsel and solicitor; and, more importantly, he had a mental…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCATrans 22
Decision Date

CaseChat Overview and Summary

In *Glascott v The Queen*, the High Court of Australia considered an appeal from a conviction for armed robbery. The appellant, Glascott, had been found guilty by a jury and sentenced to a term of imprisonment. The central dispute on appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The High Court was required to determine whether the trial judge had erred in admitting evidence that the appellant had previously been involved in a robbery, which was similar in nature to the offence for which he was on trial. This raised the legal issue of whether such evidence was unfairly prejudicial to the appellant, outweighing its probative value. Further, the Court considered whether the summing up by the trial judge had adequately directed the jury on the limited purpose for which this evidence could be considered.

The Court held that the admission of the evidence of prior similar offending was an error. Their Honours reasoned that the potential for the jury to infer guilt from the similarity of the offences, rather than relying on the evidence directly relating to the charged offence, was too high. The probative value of the evidence was outweighed by its prejudicial effect, and the summing up did not sufficiently mitigate this risk. Consequently, the Court found that the conviction was unsafe and unsatisfactory.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders