JUDGES	BUCHANAN, NETTLE JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 April 2011
DATE OF JUDGMENT	29 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 109
JUDGMENT APPEALED FROM	[2008] VSC 236 (Cummins J)

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CRIMINAL LAW – Conviction – Murder – Manslaughter – Whether judge erred in failing to leave manslaughter to jury as possible alternative verdict – Jury – Discharge – Whether judge erred in declining to discharge jury after witness gave evidence previously ruled to be inadmissible – Jury Directions – Whether judge erred in jury directions as to motive, propensity, prior inconsistent statements, contradictions in evidence in and between evidence of Crown witnesses – Trial – Whether trial unfair because failure of Crown to call material witnesses – Fitness to stand trial – Whether applicant was fit to stand trial – Evidence – Whether evidence of applicant’s dissatisfaction with Family Court proceedings admissible as evidence of motive to kill former solicitor – Counsel – Alleged incompetence of counsel – Whether applicant’s failure to give evidence at trial indicative of incompetence of counsel or otherwise productive of injustice – Verdict – Whether against the evidence and the weight of the evidence – Application for leave to appeal against conviction dismissed.

CRIMINAL LAW – Sentence – Sentence of 28 years with non-parole period of 24 years for murder of former solicitor – Whether need to protect ‘caring’ professionals necessitated increased general deterrence – Whether sentence manifestly excessive in view of applicant’s mental condition at time of offending – Re-sentenced to 24 years’ imprisonment with non-parole period of 20 years.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	In Person
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA

NETTLE JA
KYROU AJA:

Following trial in the Criminal Division, on 29 May 2008 the applicant was convicted of the murder of David Robinson, solicitor, at Fairfield on 10 July 2006 and, after a plea in mitigation of penalty, on 30 June 2008 he was sentenced to 28 years’ imprisonment with a non-parole period of 24 years. He now seeks leave to appeal against conviction and sentence. He represented himself at the hearing of the application.

The Crown case at trial

The Crown’s case at trial was that the killing arose out of an attempt by the applicant to set fire to Mr Robinson’s offices as retribution for what the applicant perceived to be the disservice which Mr Robinson had done him in the conduct of the applicant’s property settlement proceedings with his former wife.

Prior to the applicant’s divorce, Mr Robinson had known the applicant for many years and had acted for him on several occasions. Following the divorce, Mr Robinson drew up a property settlement agreement which was executed by the applicant and his former wife. Subsequently, the applicant’s former wife applied to a judge of the Family Court…

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.

Continue reading Glascott v The Queen

Details

AGLC: Glascott v The Queen [2011] VSCA 109
Case: [2011] VSCA 109
Decision Date: 29 April 2011

CaseChat Overview and Summary

The applicant, Glascott, was convicted of murdering his former solicitor. He applied to appeal his conviction and sentence. The main legal issues were whether the trial judge erred in not leaving manslaughter to the jury, declining to discharge the jury after an inadmissible witness gave evidence, and in giving certain jury directions. Additionally, the applicant argued that the trial was unfair due to the Crown's failure to call material witnesses, and that he was not fit to stand trial. The court found no errors by the trial judge and concluded that the applicant was fit to stand trial. The applicant also argued that his counsel was incompetent and that his failure to give evidence was due to this incompetence or produced injustice. The court found no merit in these claims.

The court further examined whether the original sentence was manifestly excessive given the applicant's mental condition at the time of the offence and whether the need to protect 'caring' professionals necessitated increased general deterrence. The court concluded that the sentence was manifestly excessive and re-sentenced the applicant to 24 years' imprisonment with a non-parole period of 20 years. The application for leave to appeal against conviction was dismissed, and the new sentence was confirmed.

Orders