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

Copyright in the High Court of Australia

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 impairment. 

It cannot be the case in this country in the 21st century that a person with a mental impairment can be asked to argue his case before the Supreme Court of this State without legal representation.  The right is not an absolute right, as was argued in Dietrich initially.  It is not an absolute ‑ ‑ ‑

KIEFEL J:   Are you talking about a mental impairment at the time ‑ ‑ ‑

MR HANDS:   I am sorry, your Honour?

KIEFEL J:   Are you talking about him having this mental impairment at the time of trial, or before the Court of Appeal?

MR HANDS:   I am talking about him making the application before the Court of Appeal.  I am focusing on him not getting a fair hearing before the Court of Appeal.  I can deal with the question of unfitness to plead, but I wish to focus on his rights before the Court of Appeal.  It is imperative in relation to the interpretation of the Charter that this Court goes back to the seminal covenants and conventions which are a part of international human rights law.

HAYNE J:   Sorry, before we come to that, can I just identify where in the written argument you are making the point about the sufficiency of the procedures that occurred in the Court of Appeal?

KIEFEL J:   Yes, I thought you had focused upon whether or not the Court of Appeal should be more helpful, rather than his ability to cope.

MR HANDS:   That was certainly part of the argument, your Honour, but I suggested in my written submissions that there should be protocols engaged by this Court to assist people in relation – unrepresented people, and there are, but in this case my client was not given the opportunity to engage those and therefore the application for leave was unfair, your Honour.  The situation is that – did I answer your question to your satisfaction, your Honour?

HAYNE J:   Well, what you say appears, does it, at page 430 of the application book, “Appellate courts responsibilities to assist self‑represented litigants”?  What struck me in hearing your submission was that you injected into the submission the notion that the applicant was at the time of the proceedings in the Court of Appeal subject to a mental impairment.

MR HANDS:   Yes.

HAYNE J:   I had not picked that up out of what you had read.  Perhaps the fault is mine, but I had not identified that in what you had written.

MR HANDS:   That he had a mental impairment?

HAYNE J:   At the time of the appeal.

MR HANDS:   Your Honour, attached to the application book there are a number of reports from psychologists, psychiatrists and they indicate that – and these were not before the – I am not sure, but I do not think they were before the Court of Appeal – that he (a) was not able to represent himself in court; and (b) that he was mentally impaired, particularly the report of Dr Walton.  So he was a person who was gravely disadvantaged in the Court of Appeal.  I am conscious, your Honour, that the law is divided in relation to ‑ ‑ ‑

HAYNE J:   But let me just understand this.  If this is not before the Court of Appeal ‑ ‑ ‑

MR HANDS:   No, that is right.

HAYNE J:   ‑ ‑ ‑ you would have us now embark upon an inquiry as to whether the procedures in the Court of Appeal miscarried for reasons not revealed, whether in evidence or otherwise, before the Court of Appeal.  Is that right?

MR HANDS:   That is correct.

HAYNE J:   Well, that I think may present some quite serious issues about whether that is ‑ ‑ ‑

MR HANDS:   I understand, your Honour.

HAYNE J:   ‑ ‑ ‑ any part of this Court’s appellate role.

MR HANDS:   I refer you to the case of Eastman, your Honour.

HAYNE J:   Yes.

MR HANDS:   In Eastman’s Case, for the first time the applicant led evidence of Mr Eastman’s – the question of his unfitness to plead.  It had not been done at trial.  Mr Eastman was…..difficult client.  It had not been done in the Court of Appeal and for the first time counsel at special leave application led that evidence.  Now, the High Court took the view this was new evidence and should not be admissible.  The exception was Mr Justice ‑ ‑ ‑

HAYNE J:   Could not.  Not “should not”; could not.

MR HANDS:   That is right.  Mr Justice….was the dissenting judge, I believe and that is read out.  But in this particular case, your Honour, my client is mentally impaired.  He cannot argue his case.  He does not know the law.  He does not know how to make an application for an adjournment.  So to hold the fact that he did not raise it in the Court of Appeal when his Honour proceeded - your Honour, in my submission compounds the problems of this case.

I am not saying this case is an easy case, but my submission is that sections 24 and 25 of the Charter apply to the Court of Appeal’s decision.  It was not a fair hearing because he appeared in person and for all the forensic disadvantage that entails and because he was mentally impaired, the court should have adjourned the matter, as they did in Dietrich or as recommended in Dietrich, until he was legally represented.

KIEFEL J:   Am I wrong in thinking that Dr Walton’s opinion was that the applicant had some impairment of his cognitive functions together with some depression and some paranoia from time to time and that this may have compromised him at the material time, the material time being at the time of the murder ‑ ‑ ‑

MR HANDS:   That is right.

KIEFEL J:   ‑ ‑ ‑ and that this could be taken into account by a sentencing court?  That was the purpose of the report.

MR HANDS:   That is right.

KIEFEL J:   You are extrapolating from that, are you not ‑ ‑ ‑

MR HANDS:   I am.

KIEFEL J:   ‑ ‑ ‑ about what his condition was like in the Court of Appeal?

MR HANDS:   Well, your Honour, he suffered ‑ ‑ ‑

KIEFEL J:   The doctor does not say that.

MR HANDS:   No, he does not.

KIEFEL J:   You really should be careful about the use that you make of expert reports, Mr Hands.

MR HANDS:   I am conscious of that, your Honour, but they are the only reports I have.

KIEFEL J:   Well, that is not how you stated the report to be ‑ ‑ ‑

MR HANDS:   I apologise about that, your Honour.

KIEFEL J:   ‑ ‑ ‑ and you should exercise more care in submissions to this Court.

MR HANDS:   I apologise about that.  But it does say that he suffered organic brain damage at the ‑ ‑ ‑

KIEFEL J:   Affecting cognitive functioning, yes.

MR HANDS:   That is right.  So, yes, there should have been an up to date ‑ ‑ ‑

KIEFEL J:   But there is no medical report that says it was of such a level that it would have been immediately apparent to the Court of Appeal that he could not follow what was occurring and was unable to make submissions.  That is the kind of report you need.

MR HANDS:   Of course it is, but I do not have it, your Honour.

KIEFEL J:   No, you do not.

MR HANDS:   But my submission remains the same, that sections 24 and 25 of the Charter are relevant, that the matter should have been adjourned until he was provided with legal representation, and in Dietrich’s Case at that time there was no domestic human rights law in this State.  The Charter came into force on 1 January 2007 and provided domestic human rights.  The appropriate place to look for interpretation of that is its founding legislation international, the ICCPR, and, more importantly, the European Charter on Human Rights and the cases therein. 

Dietrich was concerned with the right to a fair trial and in a seminal case it laid down some of the guidelines in relation to what a fair trial included.  But the Charter and the Covenant and the Convention go beyond that.  They talk a fair and a public hearing in the determination of a criminal charge, not about a trial on indictment, not about – it is much broader than the concept that was argued in Dietrich. 

But my submission is, if you look at the European Court of Human Rights in relation to the interpretation of determination of a criminal charge, you will see that the appeal process is part of the determination of the criminal charge, and at paragraph 20 of the decision of Chief Justice Mason and Justice McHugh in Dietrich’s Case they refer to Monnell’s Case and Granger’s Case.  I would be asking your Honours to look at those.

The other thing that those cases say is that in relation to the right to a fair and public hearing at the appeal stage, you look at the entire proceedings from go to whoa.  So you look not just at what happened in the Court of Appeal.  You go back to the leave application, you go back to the trial, and then you make the determination whether or not the applicant had had a fair hearing. 

The problem with the Charter as I see it in relation to my client, your Honours, is that section 25(2)(f) takes you back to the Legal Aid Act.  It says “if the interests of justice” and that is the way it works.  It is not an absolute right.  If in the interests of justice the person is entitled to a hearing – to have legal aid, but it says:

if he or she meets the eligibility criteria set out in the Legal Aid Act 1978 –

The problem with that is that my client was not eligible.  Trial counsel had provided an opinion that there was no merit in his application for an appeal against conviction – sentence.  Remember in fact that this case impeaches the effectiveness of trial counsel, but this issue was unresolved in the Court of Appeal because after Dietrich, section 197 of the Criminal Procedure Act was brought in to provide that, notwithstanding anything contained in the Legal Aid Act, then the judge or judges could provide legal aid.  So that has not been…..I believe, but that is a problem with interpretation of the Charter.

Your Honours, in Dietrich’s Case it was a case against existing case law.  This Court bit the bullet and said there is such a thing as a human right in a trial, or a civil right, if you like.  A person who is indigent and cannot get legal aid, even if there is no merit in his case, is entitled to be represented in the court.  That is significant.  What Dietrich’s Case did not do, it did not and could not spell out what the other indicia of a fair trial were, and each of the Judges in Dietrich went to the Covenant and they went to the European Convention and said, “Well, look, if we had our way, this is the way we would go.  It tells us what the minimum requirements for a fair trial are”.

But that was not argued and that was not available because the ICCPR, while it had been signed and ratified, and the Protocol had been signed in 1991, I think, it was not part of the domestic law.  Mr Dietrich, if he had been unsuccessful at the High Court, could have been an individual petitioner to the Human Rights Committee of the United Nations.

KIEFEL J:   I think, given the amount of time that we have, you are moving a little bit away from your topic.

MR HANDS:   Yes, that is right, but what I was saying was at that time there was no – it was not enshrined in domestic legislation.

KIEFEL J:   Given the amount of time that you do have, do you want to say anything about the issues of trial and whether there were any errors in the Court of Appeal?

MR HANDS:   Yes, your Honour, thank you very much.  In relation to the trial, my submission is that my client did not get a fair trial for the reasons outlined in my submission, and not just because of errors by counsel or errors by the judge.  The situation was that in relation to the question of the fitness to plead, it was squarely raised by trial counsel early on.  He said he was not able to get instructions or that his instructions changed from day to day, and he raised the matter with his Honour and his Honour said, “Well, look, does he say he was not there?”  “Yes”.  It was a very abbreviated response and should have been investigated.  If not requested by defence counsel or the Crown, it should have been investigated by his Honour.

KIEFEL J:   But this was only one occasion in which it was obvious that the accused, as the applicant was at that point, was – it was said that he was feeling suicidal and it was dealt with on that basis about whether or not instructions were changing.  But it did not occur again in the trial.  It was never revisited by defence counsel.  It was never suggested that after that point he was having any difficulty in receiving instructions.

MR HANDS:   Your Honour, if you look at the voir dire - we know what a voir dire is.  Mr Glascott did not know what a voir dire was, did not know what it meant in English.  He sacked the trial counsel because the barrister Houlihan was saying nasty things about him on the voir dire.  Now, that suggests that he did not understand the way trials worked, because of course it is not before the jury and the judge ruled out the evidence.  Unfortunately Mr Houlihan decided to put it in anyway and the judge tried to deal with that by saying, “Well, look, ignore that” or “Just use it for this purpose”.  But that is further suggestion he did not understand the nature of the trial process.

In relation to the DNA, the prosecution put 10 propositions which said you could be satisfied beyond reasonable doubt but the clincher,

according to the judge, was the fact that his DNA was on the matches and the piece of paper.  In course of the ‑ ‑ ‑

KIEFEL J:   I thought the evidence in relation to the gun could have been slightly influential.

MR HANDS:   Of course.  Tokarev, it is an unusual – standard Russian army issue after the First World War, but he always had indicated that he had a death wish.  He wanted to kill himself.  That is how you deal with that.  He may have inquired about a Tokarev.  No Tokarev was found.  But he made those inquiries and the case was put that he was possibly going to shoot himself with it.

KIEFEL J:   But that does not answer the question of the bullet being likely only to come from one of two guns.

MR HANDS:   Yes, the other was a Luger, I think, your Honour.

KIEFEL J:   A Mauser, I think.

MR HANDS:   Sorry, it was a?

KIEFEL J:   I think it was a Mauser.

MR HANDS:   It was a Mauser, sorry.  We do not know and the court was never told how many Mausers and how many Tokarevs were issued.  There were hundreds of thousands, that is something I know, but it should have been investigated.  If it was like, I do not know, a Winchester or something, they are probably a dime a dozen.  There is something in what you say, your Honour, about it being incriminating, but it is a circumstantial case, your Honour, and the prosecution relied on the DNA evidence.  It was from the judge’s point of view a clincher, and it was never addressed by defence counsel and should have been, and that is the purpose of Ms Taupin’s report.  I think I have said as much as I need to say, your Honour.  Thank you very much.

HAYNE J:   Yes, thank you very much.  We will not trouble you, Mr Silbert.

The applicant seeks to allege in this Court that his application for leave to appeal to the Court of Appeal against conviction for murder was not fair because he was then mentally impaired and was not legally represented.  The fitness of the applicant to conduct his application for leave to appeal was not raised in the Court of Appeal and there is no material before this Court that would show that it was an issue which the Court of Appeal should have investigated.  The Court of Appeal gave elaborate consideration to all of the issues which the applicant raised in his application for leave to appeal against conviction.  It is not shown to be in the interests of justice, either generally or in this particular case, that there be a grant of special leave to appeal.  Special leave is refused.

AT 10.17 AM THE MATTER WAS CONCLUDED