Glascott v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0728
JOHN THOMAS GLASCOTT	Appellant
v
THE QUEEN	Respondent

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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 to have the agreement set aside and obtained an order to that effect. But the applicant then appealed to the Full Family Court, which set aside the order of the judge and remitted the matter for re-trial. Eventually, the proceeding was settled but on terms which left the applicant considerably worse off than he would have been under the original agreement.

Those proceedings took place in 2000 and 2001. They were followed by protracted access proceedings concerning a child of the marriage, and those proceedings continued until the time of the killing.

The applicant represented himself in the Family Court property settlement proceedings and in the access proceedings but he held Mr Robinson responsible for the fact that the property settlement agreement was set aside, which he regarded as demonstrating the failure of the legal system in general, and of Mr Robinson in particular, to secure the applicant’s interests.

So motivated, on the night of Monday 10 July 2006, the applicant attended Mr Robinson’s solicitors’ offices in Station Street, Fairfield with the intention of setting them alight. He was also armed illegally with an unlicensed Tokarev pistol and ammunition (both of which are relatively rare in this country), which he had acquired from abroad by complex arrangements put in place over time.

The Crown did not suggest that the applicant went to Mr Robinson’s offices with the intention of shooting him or even expecting to see him there. The Crown case was that applicant shot Mr Robinson in order to avoid apprehension and punishment for his attempted arson.

The applicant arrived at Mr Robinson’s offices some time before 8.00 pm and loitered for a while, contemplating the action he was about to take. Then, shortly after 8.00pm, he attempted to set fire to the premises at the front and, when that failed, he went to the rear of the premises, broke two glass bricks in the rear wall and attempted to set fire to the premises at the rear.

Earlier in the evening, Mr Robinson had left the offices and gone home to dinner with his family. But he returned shortly after 8.00 pm with his son, Nicholas, who was then studying for VCE, so that Nicholas could use the office computer to print out an assignment.

When they entered at the front of the offices it was apparent to them that some interference had occurred but they did not know then that the applicant was still at the rear. Nicholas began printing out his assignment while Mr Robinson telephoned his wife and then went to the rear of the premises to investigate. When Mr Robinson got to the rear of the premises, he saw and recognised the applicant and, presumably, appreciated that the applicant was the attempted arsonist.

In order to avoid apprehension, the applicant hit Mr Robinson over the head with the pistol and then repeatedly shot at him, striking him once fatally to the chest. Mr Robinson staggered down the rear lane out to the middle of the road but the applicant pursued him and shot at him again, before he collapsed on a nearby grass verge. Moments later, Mrs Robinson arrived at the scene, but by then the applicant had gone. She remained with the deceased until ambulance officers and the police arrived.

With the aid of several witnesses, police were soon able to track down the applicant and arrest him. When interviewed, he declined to answer any questions.

Forensic examination of matches left at the scene of the crime showed them to bear a mixture of DNA to which one contributor was likely to be the applicant. There was also evidence that the applicant had said to a number of persons before the crime that he was dissatisfied with the way in which Mr Robinson had handled the property settlement agreement and that the applicant had asked them whether they knew where he could purchase a gun. Other evidence implied that the applicant purchased the Tokarev pistol and ammunition from abroad and expert forensic evidence established that the bullets found at the scene were Tokarev bullets (which can only be fired in a Tokarev pistol or in an even rarer long Mauser pistol).

The defence case

The defence case was to deny that the applicant had any motive to harm the deceased and anything to do with the crime. The applicant did not give evidence or call evidence.

Appeal against conviction
Ground 1: Directions as to motive

Under Ground 1, the applicant complained that the judge erred in his direction to the jury concerning motive. It was as follows:

The other thing about intention is this, the prosecution does have to prove intention at the time of the shooting. It does not have to prove a motive. Motive is not an essential element of murder, ladies and gentlemen, that’s why it’s not on that sheet. You know in this case the prosecution says there was a motive to torch the place, but the prosecution does not have to prove a motive to murder. Motive is not an element of the crime charged and does not have to be proved by the prosecution.
That may surprise you, ladies and gentlemen, because if you look at television or if you read novels, they’re all [about] motive, not about anything else most of the time, but the prosecution does not have to prove motive, and when you think about it, it’s just common sense. If you had … 100,000 people at the MCG and you saw someone pull a gun out and shoot someone through the head, you might never know why they did it; but you know that they did. So motive is not essential, it’s not an element of the crime charged. It’s relied upon here by the prosecution to prove the torching, attempted torching, but it’s not an element the prosecution has to prove beyond reasonable doubt.
…
[The prosecutor] … put to you that this is a circumstantial case and that the combined force of the circumstances point inevitably to the accused as being the shooter. He put to you that it is clear that the person who was the shooter intended to kill by reason of firing into the body of the deceased and by reason of the repeated attempts to discharge the weapon. He further put to you that the prosecution case here is not that Mr Glascott formed an intention to kill Mr Robinson, he did not even know Mr Robinson was going to be there that night, but what he did was for the very opposite, thinking Mr Robinson would not be there that night, he went along to cause Mr Robinson mischief, damage and trouble, and he intended to do so because of his own burning resentment over the years founded from hatred because – or revenge because of his financial and personal disaster …

We see no error in that. The first part of the direction is conventional and the second is an accurate summation of the Crown’s submission as to the applicant’s motive for attempting to burn Mr Robinson’s offices and then killing him when caught in the act.

The applicant argued that the direction was erroneous because of: (1) the prosecutor’s statement in opening that the Crown would seek to prove that, at the time of the killing, the applicant was becoming increasingly angry and frustrated in relation to the question of access; and (2) what the applicant said was the falsity of evidence given by the applicant’s former wife’s husband, Joshua Davine, that the state of the access litigation in mid 2006 was that there were temporary orders depriving the applicant of all custody of his child and that the applicant had put in appeal papers and the appeal was still to be heard. The applicant asserted in this court that there was no appeal against the interim custody orders, either filed or prosecuted.

We reject the argument. Mr Davine’s evidence that there was a custody appeal on foot was not challenged or contradicted. In those circumstances, there is no reason why the jury should not have accepted it. Nor is there any reason now not to accept it. The judge’s direction as to motive was unexceptionable.

Ground 2: Propensity direction

Under Ground 2, the applicant contended that the judge was in error in failing to give the jury a propensity direction.

It is not clear what the applicant meant by that, but we take it to be that the judge should have directed the jury that, if they found the applicant was the attempted arsonist, they were not to reason that, just because the applicant was the sort of person who attempted arson, he was more likely to be the sort of person who killed the deceased.[1]
[1]See and compare Paton v The Queen [2011] VSCA 72 [23]–[28], and the cases there cited.

If so, we reject the contention. The Crown’s case throughout was that the arsonist and the killer were one. The applicant’s defence throughout was that he was nowhere near the crime scene at the relevant time. It was never suggested, nor was there any evidence to support a possibility, that the arsonist and the killer were not identical. In effect, the trial was conducted on both sides on the basis that, if the jury were persuaded that the applicant was the arsonist, they should also be persuaded that he was the killer and, if they were not persuaded that the applicant was the arsonist, they should acquit him of murder. Hence, in the way in which the trial was conducted, there was no room for the possibility of improper propensity reasoning.

In any event, strictly speaking, evidence of a disposition to commit arson is not evidence of a propensity to commit murder. It is evidence only of criminal or discreditable conduct, and as McHugh J observed in KRM v The Queen:[2]

If evidence tendered to prove a subsidiary issue … reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning.

[2](2001) 206 CLR 221, 235 [39].

Given the disparate natures of the crimes of arson and the kind of murder which was in issue, it is unrealistic to suppose that the jury may have reasoned that, because the applicant was the sort of person who attempted arson, he was the sort of person who was likely to commit that murder.

Further, as McHugh J also said in KRM:

Hitherto, common law courts have accepted that a propensity warning is not required merely because a presentment contains a multiplicity of counts involving similar offences. No propensity warning is required, for example, because the accused is charged with several counts of housebreaking or stealing or murder or sexual offences.[3]

A fortiori in a case like this where, as opposed to there being several counts of murder, all that was charged was one count of murder with evidence of one uncharged act of arson. As a matter of logic and common sense, a jury is considerably less likely to reason from an accused’s propensity to commit arson to a conclusion that he is the sort of person who is likely to commit murder than they might reason from the fact that he committed one murder to a conclusion that he is the sort of person who was likely to commit another.

[3](2001) 206 CLR 221, 233 [33] (citation omitted).

We reject Ground 2.

Ground 3: Admissibility of evidence

The complaint under Ground 3 was that the judge erred in admitting evidence of Michael Houlihan, a barrister, who appeared for the applicant’s former wife in the Family Court proceedings.

Mr Houlihan was examined and cross-examined on the voir dire. His testimony on the voir dire was to the effect that the applicant was unfavourably disposed towards his former wife and her legal representatives (because of what the applicant perceived to be his former wife’s dishonourable conduct in reneging on the property settlement agreement drawn by Mr Robinson). Defence counsel objected to the admissibility of that testimony on the basis that it said nothing as to the applicant’s attitude towards Mr Robinson and, therefore, was irrelevant.

The judge disallowed the objection for reasons which he gave in Ruling No 4.[4] As his Honour observed, Mr Houlihan’s evidence was of two parts: the first to do with the applicant’s conduct and statements before 10 July 2006; and the second with his conduct and statements after 10 July 2006, specifically, on 11 July 2006 in two telephone conversations with Mr Houlihan initiated by the applicant.
[4][2008] VSC 243.

The judge considered that the first part was relevant because, if accepted, it demonstrated ‘an animus by the accused concerning his matrimonial and financial affairs which in 2000 were handled by Mr Robinson’ and thus bore ‘upon the emotional pathway which the prosecution [contended] led the accused to attempt to torch the premises of Mr Robinson at the front and back on 10 July 2006’. And his Honour considered that the second part[5] was relevant because, if accepted, it demonstrated that the applicant was of a mind to seek revenge against his former wife and her husband on account of ‘the property settlement’, an expression which the judge said could be interpreted as meaning ‘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’.
[5]Which was effectively all to do with Mr Houlihan’s conversations with the applicant on 11 July 2006.

The judge rejected defence counsel’s submission that the evidence was shown to be irrelevant by the fact that, by mid 2006, the only proceedings in which the applicant was still involved with his former wife were to do with access rather than property, and that the deceased had nothing to do with the access as opposed to property. His Honour took the view that so to approach the matter would be to divide the two aspects of property and access artificially into ‘hermetically sealed separate categories’, and that it was:

… a fallacy … to seek to separate … 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 [the deceased], and I consider that is admissible and probative and can be put by the Crown in that way. So the separation by [counsel for the applicant], 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.[6]

[6][2008] VSC 243 [10].

The judge did accept, however, that Mr Houlihan should not give evidence that the applicant told him that he ‘had been forced to bring forward something he had intended to do in the future’. His Honour considered that the statement was too vague and speculative and had the potential to cause the applicant prejudice. His Honour also ruled that Mr Houlihan should not say that the applicant told him: ‘The war's over’. In his Honour’s view, that was ‘speculative as to what it refers to’ and had ‘a particular potency and could have a life of its own in the jury room [which] could lead to unfairness as well as speculation’.

With respect, we see no error in that part of his Honour’s reasoning. We agree with his Honour, for the reasons he gave, that Mr Houlihan’s testimony was relevant because it showed that the applicant thought himself to have been wronged by Mr Robinson and, in turn, because that served to establish that the applicant had reason to cause Mr Robinson harm.

Ground 4: Edwards and Zoneff directions

Under the heading of Ground 4, the applicant contended that the judge erred in failing to give the jury Edwards[7] and Zoneff[8] directions.
[7]Edwards v The Queen (1993) 178 CLR 193.
[8]Zoneff v The Queen (2000) 200 CLR 234.

That contention is misplaced. The Crown did not rely on any post-offence conduct as evidence of consciousness of guilt and there was no evidence of post-offence conduct which the jury might conceivably have viewed as having that tendency. There was no occasion, therefore, for an Edwards direction or a Zoneff direction.

Ground 5: Fitness to plead

The applicant contended as Ground 5 that the judge erred in failing to consider whether the applicant was fit to stand trial.

That contention is unfounded. The issue of fitness to stand trial only ever arose on one occasion during the course of the trial and, when it did, the judge gave it active consideration. The trial began on 5 May 2008 and, after several witnesses had given evidence, on the morning of 14 May 2008 defence counsel told the judge in the absence of the jury that, when he and his instructing solicitor had consulted with the applicant before court that morning, the applicant was ‘quite suicidal’. The judge forthwith adjourned the trial to the next day to allow defence counsel and his instructing solicitor to determine what was to be done.

The next morning, defence counsel told the judge that the applicant:

looks a lot better today than he did yesterday and he tells me this morning he’s feeling better.

and that :
the problem that we have at the moment is whether he is fit to give proper instructions – they’ve changed again this morning.

The judge and counsel then discussed the applicant’s instructions in outline – defence counsel told the judge that his instructions remained that the applicant had not had anything to do with the crime, and that such equivocation as there was concerned matters of detail – and that appears to have led defence counsel to conclude that he was sufficiently instructed to continue with the trial for the time being. At the conclusion of the discussion, he told the judge that he ‘didn’t want to hold the trial up’. Thus the judge ruled as follows:

In the circumstances I consider the matter should proceed for the reasons I discussed with [defence counsel], namely number one, the general position of the accused is that he was not present at the scene and had nothing to do with the shooting, and that has not changed; and second, in the specific matter in relation to enquiring about a gun, the defence position is that the accused did make that enquiry but it was not a serious enquiry and that position has not changed either.
In all the circumstances, assuming that the Presser criteria are satisfied, as [defence counsel] responsibly says he considers they are, I consider the trial ought proceed.[9]

[9][2008] VSC 242.

After that, there was no more question of defence counsel having any difficulty in obtaining instructions, still less any reason to suppose that the applicant was unfit to stand trial, and we have not been presented with any evidence to the contrary.

In that state of affairs, we see no reason to doubt that the applicant was fit to stand trial, just as he appeared fit to conduct his application for leave to appeal when he appeared before us.

Ground 6: Failure to discharge the jury

Under Ground 6, the applicant contended that the judge erred by refusing to discharge the jury after Mr Houlihan gave evidence, contrary to the judge’s ruling, that the applicant said to him: ‘The war’s over’.

The relevant part of Mr Houlihan’s evidence was as follows:

PROSECUTOR: Did he [the applicant] tell you in this phone call that he wanted you to act for him in a very big case? --- He did.
PROSECUTOR: In the past, had he made it plain to you in conversations that he regarded you as incompetent? You needn’t elaborate on this, but just generally was that? --- Invariably he was playing mind games, he’d say, look you’re an incompetent old fool, yes.
PROSECUTOR: Just bear with the questions - - - ? --- Sure.
- - - I’m asking you, I just want really the historical facts? --- Certainly.
PROSECUTOR: But whereas in the past he’d said you were incompetent? --- Yes.
PROSECUTOR: He said on this occasion that he wanted you to act for him in a very big case? --- Yes.
PROSECUTOR: Did he say anything then about the access issue? - - - Yes. He said, you know, ‘The war’s over, forget about that. I want you to act in this other case’.
PROSECUTOR: Right. Did he say that he would not be pursuing the access issue any longer? - - - Yes, yes, he did. Thank you.
PROSECUTOR: Did you tell him that because of your having been instructed in the past by his ex-wife, you could not act for him? - - - I did.

Shortly after Mr Houlihan gave that evidence, defence counsel applied in the absence of the jury that the jury be discharged, because:

The jury [is] going to take that [reference to the war being over] on board and … we’ll will have all those problems that we went through this morning.

Although the judge had previously ruled that Mr Houlihan should not refer to the applicant’s statement that the war was over, his Honour rejected the application for discharge, on the basis that:

Having heard the witness, I do not now consider it is a real possibility at all that the jury would treat the phrase ‘The war's over’ as being any more than the litigation will no longer be pursued by Mr Glascott. I say that because the phrase came out in the very specific context of a war of litigation between the accused and his former wife, Tina, over a considerable period; and as [defence counsel] rightly has conceded, if the expression was in that first conversation, ‘I'm no longer pursuing the court case’ there could be no objection. That is to say, the enunciation by the accused the day after the murder that he was no longer pursuing the court case, of itself could not properly be objected to. The objection is not the substance of the matter. The objection is the danger in the phraseology.
I consider that in the context of the evidence given by the witness, the jury would only conclude that ‘The war's over’ referred to the litigation no longer being pursued.[10]

[10][2008] VSC 244 [4]–[5].

We agree with the judge. Given the context in which the remark was made, the jury are most unlikely to have attributed any meaning to ‘the war’s over’ other than that the access proceedings had concluded. A jury is not to be discharged unless there is a high degree of need to do so.[11] In this case, there was no need to do so.
[11]R v Boland [1974] VR 849, 866; R v Vaitos (1981) 4 A Crim R 238; R v George, Harris and Hilton (1987) 9 NSWLR 527; R v Su [1997] 1 VR 1; Crofts v The Queen (1996) 186 CLR 427; R v Hartwick and Clayton (2005) 14 VR 125, 156 [75].

Ground 8: Error in failing to leave manslaughter to the jury

The applicant’s eighth ground of appeal was that the judge erred by not leaving manslaughter to the jury as a possible alternative verdict. There is no basis for that contention. There was no suggestion or evidence capable of supporting the idea that the killing may have been manslaughter rather than murder.[12] The only issue was whether the applicant was the murderer.
[12]Cf Gillard v The Queen (2003) 219 CLR 1, 14 [25]–[26].

Ground 9: Error in directions as to prior inconsistent statements

Under Ground 9, the applicant contended that the judge erred in his directions concerning the significance of prior inconsistent statements.

In support of that contention, the applicant referred to page 334.14 of the Transcript, at which point defence counsel told the trial judge that ‘the instructions are changing day by day’; page 334.29 of the Transcript, at which point defence counsel told the judge that ‘we’ll speak to him again as soon as we possibly can and ascertain what the situation is precisely in relation to his mental status, whether he can properly give his instructions’; and Ruling No 3[13] to proceed with the trial, which was given the next day after the judge allowed the defence an adjournment of a day and defence counsel told the judge that the applicant looked a lot better after the day’s adjournment and that, although there was some difficulty in obtaining instructions, defence counsel was ready to proceed and did not wish to hold up the trial.
[13][2008] VSC 242.

The judge’s directions as to prior inconsistent statements were given in the following conventional terms:

Next, ladies and gentlemen, during cross-examination of some of the witnesses a previous statement was put to them that they had said earlier on outside the court which was said to be inconsistent with their evidence here in court, and that was done to assist you in assessing whether you accept the witness’s evidence or not. A previous statement made outside the court is not evidence of what actually happened at the scene, it is simply a statement made outside the court. It was not on oath, it is not subject to cross-examination, it is not made in front of you, it is simply a previous statement. So what a witness said outside of court, not oath and not subject to cross-examination, is not evidence of what happened on the night. It is led in order to assist you in assessing the witness here as to whether you can rely upon them or not. Of course, if the witness in front of you says, ‘Yes, I did say that and that was true’, then it becomes evidence because a witness has said it in front of you. But if the witness says, ‘Yes, I did say it, but it wasn’t true, because I got it wrong’, or whatever the reason given by the witness, what is said in the previous statement is not truth of what happened – is not proof of what happened on the night, but it is a matter that you can properly use in assessing whether you accept the witness or reject the witness as accurate or as truthful.

There is no error in those directions and they have nothing to do with the matters submitted by defence counsel in advance of Ruling No 3 or dealt with in that ruling.

We reject Ground 9.

Ground 11: Section 399(5)(b)

Ground 11 was expressed in these terms:

Section 399(5b) [sic] Hanging over my head.

In written submissions filed in support of that ground, the applicant added that:
Then to have section 399(5b) [sic] hanging over my head was a Judicial control of the evidence.

By those submissions, we take the applicant to mean that he is aggrieved because the effect of s 399(5)(b) of the Crimes Act 1958 was that, if defence counsel asked questions of other witnesses with a view to establishing the applicant’s own good character, the applicant would have been at risk under the section, if he gave evidence, of being asked questions about his prior convictions.

We note that there was an occasion early in the trial where the judge ruled that defence counsel had so questioned a witness as to engage the operation of the section. But, on that occasion, the judge ruled in favour of the applicant that he would not allow the Crown to put questions concerning the applicant’s prior convictions. Possibly, the applicant saw that as unfairly constraining further questioning.

The ruling, however, was not unfair. Section 399(5)(b) was the law and the judge was bound to apply it. Nor was there any error or injustice in the section hanging over the applicant’s head. The section is intended to hang over the head of an accused and inform the way in which the accused or his counsel conducts cross-examination of other witnesses.

Ground 12: Ruling in suspension

Ground 12 was expressed in these terms:

Ruling in suspension Page 556, Page 557, Page 548 Pt 6 Page 565 to 568.

Those pages of the transcript record counsel’s submissions to the judge as to the admissibility of Mr Houlihan’s evidence and whether defence counsel should be permitted to cross-examine Mr Houlihan on the voir dire in order to test the admissibility of his evidence. The complaint ‘ruling in suspension’ appears to be that the judge was wrong to accede to defence counsel’s application that, before the judge finally ruled on the admissibility of Mr Houlihan’s evidence, defence counsel should be permitted to cross-examine Mr Houlihan on the voir dire. The relevant part of the exchange between counsel and the judge was as follows:

HIS HONOUR: That’s a mere – when I say ‘mere’ I am not diminishing it but I am characterising it – that’s an evidentiary matter. If you want to explore on the voir dire , you are very welcome to. He might say, ‘Well he didn’t say it, that was just what I understood the burden of what he was saying to me’ or he might say, ‘He said the word’. At least at the moment in evidence-in-chief he has said ‘he said the word’.
DEFENCE COUNSEL: I would like to cross-examine him on that particular point simply - - -
HIS HONOUR: Well, you are welcome to.
DEFENCE COUNSEL: - - - before your Honour rules if I could. That’s the only point I want to cross-examine him on, is that - that’s the point that really concerns me, your Honour.
HIS HONOUR: All right. Well if you want to do that before I rule, I would certainly give you that locus, Mr Sarah.
DEFENCE COUNSEL: Thank you, your Honour.
HIS HONOUR: [to the prosecutor] I think I should give Mr Sarah the locus although it’s slightly unusual to have a ruling in suspension but I have indicated to Mr Sarah that my overall view is that, subject to excluding the words ‘The war’s over’ because I consider that is too speculative, and a couple of other things I’ll deal with in my ruling , that I think the evidence of Mr Houlihan is admissible but he wants to see whether he can in effect remove the revenge part of that conversation on the 11th and I think I should allow him to do that on the voir dire.
PROSECUTOR: Yes, I won’t argue with that, sir.

The applicant has no cause for complaint that the ruling was held in suspension pending examination of Mr Houlihan on the voir dire. The judge held it in suspension at the request of defence counsel, in order to allow defence counsel to attempt to improve his position.

We reject Ground 12.

Ground 13: Failing to pick up on contradictions

The complaint under Ground 13 was that:

The learned trial judge Never pick up [sic] on the contradictions; That could only allow the Jury to speculate and left little parameters.

We take that to mean that the judge should have done more to identify for the jury such contradictions as there were in and between the evidence given by witnesses called for the Crown.

We do not accept the complaint. Defence counsel had the opportunity in cross-examination and final address to make whatever he could of any contradictions in and between the evidence of witnesses, and he cross-examined several witnesses on differences between the evidence which they had given at the committal hearing and their evidence at trial. The judge’s directions to the jury included a summary of the evidence of the critical witnesses, including mention of differences between them on important matters of fact, and a summary of counsel’s arguments. Unsurprisingly, there was no exception taken along the lines which are now contended for.

We reject Ground 13.

Ground 14: Error as to DNA and Inquiry agent licence

Ground 14 was expressed as follows:

Error in the Trial Judge charge, with overstatement by his Honour relating [sic] to inquiry agent license [sic] DNA,[14] and Many other areas of concern.

[14]The issue of DNA is dealt with at [135]-[136].

In his written submissions, the applicant added:

Their [sic] was clear evidence to my Goverment [sic] inquiry agent license [sic] in which the jury were told in the Judge’s charge that was never license [sic], which goes to my character.
The many contradictions and perjury evidence by Mr Paul Sheehan and others, were over look [sic] by the court as well as the O.P.I. (Police) perjury them self [sic] on their own letterhead, with regards to the police officer Det-Sen Con. Ross Hancock who[se] finger prints are all over this investigation.

The first complaint seems to be directed to the judge’s observation, in the course of summarising Mr Antonicelli’s evidence, that:

He, Mr Antonicelli, said he is a licensed – that is, he himself, Mr Antonicelli is a licensed security guard. He got his licence probably seven or eight years ago. He said Mr Glascott was working as a private investigator and told Mr Antonicelli that he was licensed – we know from the other witness he was not licensed - but he also did clairvoyancy.

At first sight, there might appear to be something in the complaint. Standing alone, the quoted section of the directions suggests that the applicant was never licensed. The evidence was a little different. Senior Sergeant Belinda Murphy of the Licensing Services Division gave evidence-in-chief that the applicant had made an unsuccessful application for a private agent’s licence in January 1991 and that ‘he’s never been issued a private agent’s or currently a private security licence’. But, in cross-examination, she accepted that the applicant had been a licensed private agent prior to 1991.

When the judge’s observation is read in context, however, it appears that all that his Honour was attempting to convey was that the applicant was not licensed by the time he came to deal with Mr Antonicelli (which, in terms of whether the applicant was licensed, was the only relevant consideration). The fact that there was no exception implies that defence counsel took a similar view of it. But, even if the judge did overstate the position, we think it was such a small matter in the overall context of the trial that it could not have made a difference to the outcome.

The second aspect of the applicant’s complaint is more complex. It was supported by an ‘Affidavit of Additional Events and Circumstances’ sworn by the applicant on 5 October 2010 in which he deposed, inter alia, that one Detective Ross Hancock of the Preston Police Station was a material witness whom the Crown failed to call, and that the Office of Police Integrity had attempted to pervert the course of justice by stating on their letterhead that there was no person by the name of Hancock in the Victoria Police Force. According to the applicant, Mr Hancock was a material witness because he attended at the applicant’s former wife’s house during the day on 10 July 2006, after an incident between the applicant and Joshua Davine earlier in the day outside the applicant’s home, and later appeared at the crime scene.

We were provided with one page of a letter apparently from the Office of Police Integrity which stated that there were no brothers by the name of Hancock serving in the police force. Clearly enough, however, Detective Constable Ross Hancock was and so far as appears may still be a member of the police force. We were told that his statement was included in the hand-up brief. Yet it is also plain that he was not a material witness. In his statement, which was marked as part of Exhibit B for the purposes of the appeal, Detective Constable Ross Hancock referred to the fact that he had been involved in the prosecution of the applicant for other offences and that he had been called to the crime scene on the night of the killing and attempted to obtain CCTV footage from a nearby business. Otherwise, he was not involved. A copy of that statement was provided to the judge at page 125 of the transcript, and after that the matter was not mentioned again.

Consequently, we reject Ground 14.

Ground 15: Revision of transcript

The complaint under Ground 15 was that the transcript of Mr Houlihan’s evidence and of the judge’s charge to the jury are revised transcripts.

That is not a ground for complaint. It does not appear to that Mr Houlihan’s transcript has been revised, but even if it had been it would not be surprising. It is commonplace for errors and omissions which appear in the first published version of a transcript to be corrected against the tape and for the issue of a revised transcript including the amendments. The revision of the transcript of a judge’s charge to the jury is a matter of long standing custom to enable the correction of errors in transcription and minor grammatical solecisms. There is nothing to indicate that any part of the transcript has been amended in a fashion which significantly alters or distorts the meaning of what was originally said.

We reject Ground 15.

Ground 16: Applicant denied chance to give evidence

Under Ground 16, the applicant complained that he was ‘refused the chance to give his own evidence, Page 985 pt 5 [sic], As my counsel had booked a trip to Sydney and the Judge wouldn’t’ allow me to speak’.

The transcript reference is to a point in the judge’s sentencing remarks where his Honour noted that the applicant had chosen not to give evidence, and the reference to defence counsel having booked a trip to Sydney appears to be based on a remark by defence counsel at page 691.22 of the Transcript, in the absence of the jury after the Crown case had closed, that he was supposed to be in Sydney the following Thursday.

In argument before this court, the applicant asserted that, although he instructed defence counsel that he wanted to give evidence before other witnesses, so that they could be cross-examined in light of his testimony, defence counsel prevented him from going first and, after the Crown case had closed, defence counsel told him that they had run out of time to give evidence.

The first part of the complaint is misconceived. Section 397 of the Crimes Act 1958 dictated that the applicant was not to give evidence until after the Crown case closed. As to the second part of the complaint, the law is clear that this court ought not to intervene on the basis that defence counsel is supposed to have erred in the conduct of an applicant’s defence unless there be material before the court which establishes that the error amounted to such defect of judgment or neglect as to dictate that justice miscarried.[15] There is nothing before us to suggest anything of the kind.
[15]R v Miletic [1997] 1 VR 593, 598–9; R v Birks (1990) 19 NSWLR 677, 683–5; R v Wakin [1998] 2 VR 46, 50.

As matters stand, there is no way of knowing what led to the applicant’s decision not to give evidence. He did not say anything in his affidavit about it and he did not call any evidence about it. But given the strength of the Crown case, it is difficult to imagine that the applicant could have improved his position by giving evidence. In all probability, defence counsel made a reasoned forensic decision that it was in the best interests of the applicant to keep well clear of the witness box.

Accordingly, we reject Ground 16.

Ground 17: Failure to follow instructions

Ground 17 was a complaint that submissions put by defence counsel on the plea in mitigation of penalty did not accord with the applicant’s instructions that he was taken to hospital on 10 July 2006 after the altercation with Joshua Davine and so could not have been the arsonist.

Since the plea was not heard until after the applicant was convicted, Ground 17 is not a tenable ground of appeal against conviction. Accordingly, we reject it. For the sake of completeness, however, we add that what defence counsel said about the matter was accurate.

In attempting to persuade the judge that the applicant was in such a distressed psychological state at the time of the killing as to engage the operation of the Verdins principles, counsel submitted that:

You’ve got his bizarre behaviour outside the school when Mr Davine arrives, the fact that he used to hold up signs and things like that, but the fact that he had a confrontation with Mr Davine that day. He fell down and then the ambulance was called – you’ll see on the depositional material, he wasn’t in fact taken to hospital, although he believed that he was taken to hospital, but that’s contained within one of the report, so it’s incredibly bizarre behaviour…

That accorded with an endorsement ‘I don’t want to go to hospital’ which appeared on the ambulance report (marked as Exhibit A for the purposes of the application for leave to appeal) and which appeared to have been signed by the applicant.

In the course of argument before this court, the applicant asserted for the first time that his signature on the ambulance report had been forged or that the report related to another incident when he was injured at the Family Court. Since nothing of that kind was ever suggested at the trial, and because of its inherent improbability, we reject it.

We reject Ground 17.

Grounds 18 and 23: Failure to act with professionalism

Grounds 18 and 23 may be dealt with together. Ground 18 alleged that defence counsel:

ran the trial without professionalism counsel speak about his trip to Sydney Page 691 pt 23, As he knew their [sic] would be no deliberation

and Ground 23 alleged that:
My counsel was negligence [sic]and had his own personal agenda that he put first before natural Justice and Made Many contradiction statement [sic] during my trial.

We have referred already to the principles which govern the setting aside of a verdict because of counsel’s incompetence. We need only add with respect to Grounds 18 and 23 that there does not appear from the transcript to be any point at which defence counsel ‘ran the trial without professionalism’ or made contradictory statements.

We reject Grounds 18 and 23.

Ground 19: Hazardous territory

Ground 19 alleged that:

The trial was prejudice and allowed to go into hazardous territory, Page [476].9; page [479].16; page 335.[10]; page 567.27; page [662].14; page 812.[10].

At page 476.9 of the Transcript, after the applicant had interrupted the examination of Mr Houlihan on the voir dire, the judge told the applicant to resume his seat and, when the applicant again attempted to interrupt, the judge told him to resume his seat or he would have him removed.

At page 479.16, in discussion between defence counsel and the judge as to the admissibility of Mr Houlihan’s evidence, the judge said that he would stand the question over to the following week to allow defence counsel to confer with the applicant. The exchange was as follows:

HIS HONOUR: Mr Sarah, this is very hazardous territory. First, the prosecution is entitled to lead relevant and admissible evidence, subject to the question of prejudice, on what it says is the animus of the accused towards the deceased. On its face that is relevant and admissible. The November 2000 proceeding is five and a half years earlier than the relevant event but as I apprehend it you do not submit – or you certainly have not submitted yet that it is remote in time and on its face it appears to me, subject to the benefit of your submissions, to be relevant as a starting point of later animus – put that aside for the moment.
Assuming that the prosecution is entitled to evidence from Mr Houlihan of what your client said, including the repeated statements that he proposed to ‘destroy’ Tina and that side of the family, and on its face that appears to me to be admissible, subject to the benefit of your submissions, the very real question is containing it so that three things don’t come out. The first is any reference whatsoever to paedophilia, the second is any reference to other threats to kill or other criminal connections, real or imagined.
DEFENCE COUNSEL: Yes.
HIS HONOUR: But asserted. And the third is that overwhelming prejudice does not enter this calm courtroom from the evidence of Mr Houlihan, generally or specifically. So it needs careful handling. Now my instinct is this: I think it might be better to stand Mr Houlihan’s evidence before the jury over until next week - - -
DEFENCE COUNSEL: I was going to suggest - - -
HIS HONOUR: And you try to quietly digest its parameters – clearly there are parameters which need to be laid down. Your client has jumped up and down wanting to interrupt the proceedings, which I didn’t permit, but I’ll certainly facilitate him having a proper conference with you.
DEFENCE COUNSEL: That’s what he wanted to do, your Honour.
HIS HONOUR: Yes, I’ll certainly - - -
APPLICANT: Sorry, your Honour.
DEFENCE COUNSEL: He apologises through me, your Honour.
HIS HONOUR: That’s quite all right, I’ll certainly facilitated that…

At page 335.10, there was the following further exchange between defence counsel and the judge as to whether the applicant was fit to stand trial, during which defence counsel thanked the judge for standing the matter over for a day to enable him and his instructing solicitor to confirm the applicant’s instructions:

HIS HONOUR: Do you have an anticipation of whether the situation is going to be any better tomorrow?
DEFENCE COUNSEL: Yes, I do. I hope so. What we have to do is [to] use the old expression, the vernacular, ‘sign him up’ in respect of various matters that have arisen.
HIS HONOUR: Thank you, I won’t ask you any further. Thank you Mr Sarah.

At page 567.27, the prosecutor made this observation:

PROSECUTOR: My learned friend has not made any secret as far as what his present instructions are in relation to calling his client and we expect the accused to be called. But that means the Crown case in any event, your Honour, will probably finish mid morning tomorrow and then the question of addresses start. Does you Honour have a view about that? I am happy to start the address tomorrow afternoon.
HIS HONOUR: No. I think there should be a little time between the end of evidence and addresses. We will see what happens at the end of the prosecution case.

At page 662.14, Dr Ranson, the Crown pathologist, gave the following evidence as to whether the deceased was standing upright when shot:

DEFENCE COUNSEL: It would have, as you understood it, the person was standing upright when shot? --- Well, I don’t know that, all I know is that there’s a wound at the front of the chest, and there’s a wound at the back, and there’s a fairly straight path, as far as I could see, between those two. Clearly the wound at the front of the chest has gone through a portion of bone, and that may well have caused [a slight] deflection of the path, certainly possible, but I don’t believe that the path itself through the body would have been affected by the injury to the bone at the back; the injury to the bone at the rear of the back was very minor.

Finally, at page 812.16, in final address, defence counsel endeavoured to deal with seemingly incontrovertible evidence that the applicant’s car was seen at the scene of the crime, very shortly before the crime was committed, by suggesting that it was reasonably possible that someone else may have driven it there:

His car’s seen in Station Street. Well, again, so what? How did it get there? We don’t know. We don’t know. Whether other people had access to his motor vehicle, his friends, we’ve just got no idea. No idea. But one thing is for sure, there’s no doubt, and as the prosecutor said, his car was seen there.

We do not see in any of those passages of the transcript that the trial was allowed to go into ‘hazardous territory’ or otherwise cause the applicant undue prejudice.

As to the exchange at page 476.9 to 482.3, the applicant deposed in his Affidavit of Additional Events & Circumstances that:

[I]f you go to Page 482 line 3, my Counsel is once asked by His Honourable Justice Cummins to seek my instruction’s, however by this stage, I had been verbally threatened not to speak and if by doing so I would be placed in the holding cells, which emotionally paralysed me, and resulted in me breaking down in an outburst of tears, I was therefore incapable of giving instruction’s, then if we refer to Page 486 point 20 it is clear of the distress that the impact of the non communication was having on me and effectively hindering the proper procedure and guild lines that were meant to be followed and taken within the trial [sic].

It is apparent from the passages of the transcript which we have set out above that that allegation is incorrect. As has been noted, the judge gave the applicant a day off in which to confer with counsel and the applicant personally thanked the judge for that indulgence.

The passage at page 335.15 shows that defence counsel was confident that, with a day off to confer, he and his instructing solicitor would be able to confirm their instructions in writing. There is nothing by way of evidence or otherwise which suggests that they could not or did not.

The passage at page 567.27 implies that, after assessing the effects of the Crown case, defence counsel changed his mind about calling the applicant. As we have observed already, there is nothing untoward about that. Given the strength of the Crown case, it is what one might expect counsel to have done.

The passage at page 662.14 is unexceptionable. It is the expression of opinion by an expert pathologist as to possible causes of the fact that the trajectory of the bullet through the body of the deceased was slightly downward from the point of entry at the front of his body to the point of exit at his back. So far from excluding the possibility of the applicant having been the shooter, as the applicant contended, it explains how the applicant could have been the shooter notwithstanding that the trajectory of the bullet was more or less level from front to back of the deceased’s body. It all depends on the angle of the body to the vertical at the time of shooting.

Finally, as to the passage at page 812.17, although the possible explanation that someone other than the applicant drove the applicant’s car to the crime scene might have seemed lame, we cannot think of a better possible explanation. It seems that counsel probably did the best he could at that point in face of a difficult situation.

We reject Ground 19.

Ground 20 : Trial had no parameters

Ground 20 was as follows:

The trial had no parameters which further place[d] the focus on the applicant[‘s] character. The Ruling in suspension Page 548 and their [sic] was not phone call to Mr Houlihan on the 11^th July 2006, refer to Ruling No 4.

In effect, we have already dealt with that ground. In substance, it repeats the complaint made under cover of Ground 12. We reject it for the same reasons that we rejected Ground 12.

Ground 21: Withholding of important witnesses

Under Ground 21, the applicant repeated the claim that the trial miscarried because of the Crown’s failure to call Detective Senior Constable Ross Hancock and he added a further complaint that the trial miscarried because the Crown did not call Mrs Lazar.

It is unnecessary to say anything further about the alleged failure of the Crown to call Detective Senior Constable Hancock. As we have said, he was not a material witness.

The point about Mrs Lazar was based on the following exchange between defence counsel and the judge, at page 90 of the Transcript:

DEFENCE COUNSEL: That’s this, that there’s Josephine Lazar who is Dom Antoniciello’s [sic] sister, who claims to have seen, according to the IR report that’s been kindly handed by my learned friend to me, saw my client on the night around 7.30. He pulled into her driveway, where she was then living, asks ‘Is Dom about?’ had a conversation and so forth. Now we’d be asking for a statement to be obtained from that witness. Now my learned friend’s resisting that for some reason, I don’t know why. We asked for it last week and I ask for it again.
HIS HONOUR: When is the issue likely to come up?
DEFENCE COUNSEL: Either tomorrow or Wednesday.
HIS HONOUR: All right. We can deal with the matter at lunch time or at four o’clock. I won’t hold the jury up now.
DEFENCE COUNSEL: No.
…
PROSECUTOR: If the fact were as my learned friend had said we would have got a statement, but he’s misunderstood something.

Later, however, the Crown did obtain a statement from Mrs Lazar, and provided it to the defence, and it showed that what Mrs Lazar was able to say was immaterial. That statement was marked for the purposes of the appeal as part of Exhibit B. Having seen Mrs Lazar’s statement, defence counsel told the judge that he did not want her called, because:

If I can advance this, the reason the Lazars weren’t called is that they don’t take it anywhere. No one identifies anybody, no one identifies the car so we can’t take it – they would be just pointless witnesses that would clutter up the jury’s minds.

In those circumstances, we reject Ground 21.

Grounds 22, 24, 25 and 26

It is convenient to take Grounds 22, 24, 25 and 26 together. They were as follows:

Ground 22: The Crown used keywords to convict: Arsonist, Keys, Matches P 530 pt 4, P 63 pt 28, P 431 pt 13.
Ground 24: The Crown used the applicant[‘s] psychiatr[ic] condition to blanket his defence. Forensicare, Family Court issues, inquiry agent.
Ground 25: Inconsistent statements to that of evidence. The evidence was allowed on the run and my trial became a miscarriage of justice.
Ground 26: Evidence was allowed on the run, which could only confuse a jury.

In effect, the first two points appear to be allegations that the Crown acted unfairly in suggesting that the applicant’s motive for killing the deceased was to escape detection for the attempted arson of the deceased’s offices and that his motive for attempting to burn the offices was his dissatisfaction with the deceased’s handling of the property settlement agreement. In effect, we have dealt with that point already. There was adequate basis in the evidence for that allegation and it was not unfair or unjust for the Crown to make it.

The second two points are like Grounds 12 and 20, with which we have also dealt. It is not apparent from the transcript that the way in which evidence proceeded at trial was in any way unusual or irregular for a trial of this kind.

Consequently, we are not persuaded that there is any substance in Grounds 22, 24, 25 or 26 and, therefore, we reject them.

Ground 7: Against the evidence and the weight of the evidence

Under the heading of Ground 7, the applicant contended that the verdict was unsafe and unsatisfactory in that it was against the evidence and the weight of the evidence.

The test of whether a verdict is unsafe and unsatisfactory is whether, based on the evidence, the jury acting reasonably should, in the sense of must rather than might, have had a reasonable doubt. As Hayne J (with whom Gleeson CJ and Heydon J agreed) said in Libke v The Queen:[16]

the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

[16](2007) 230 CLR 559, 596 [113]. (Citation omitted).

We do not consider that the jury should have had a reasonable doubt about the appellant’s guilt. There was clear evidence of motive, opportunity and presence at the crime scene at the relevant time, including the fact that the applicant’s car was seen there at the relevant time; clear evidence sufficient from which to infer that the accused had obtained and had in his possession a relatively rare Tokarev pistol and Tokarev ammunition which was used to kill the deceased; and clear evidence that DNA located on matches found at the scene of the crime, which it appeared had been used in the attempt to set fire to the deceased’s offices, included DNA which was likely to have come from the applicant. All in all, the strength of the Crown case was such that it would have been surprising if the jury had not been satisfied of the applicant’s guilt beyond reasonable doubt.

Ground 8: Perjurous evidence

Finally, as Ground 8, the applicant contended that:

The verdict is unsafe and unsatisfactory by virtue of an aggregated of errors. Sheehan perjury Page 391 pt 3, OPI Perjury letter with regards to Detective Senr Constable Hancock.

We have dealt already with Detective Constable Hancock. As has been noted, he was not a material witness and that is why he was not called. Whatever significance is to be attached to the letter from the Office of Police Integrity, it cannot change the fact that, because he was not a material witness, he did not need to be called.

The point about the witness, Paul Sheehan, is that, although when first interviewed by police, he said that he knew very little about what happened, he gave evidence at trial of having heard and seen a number of important details of the crime and the offender. At page 391, defence counsel cross-examined him about that change and Sheehan accepted that when first interviewed he attempted to downplay the extent of his observations because he did not want to get involved. Those concessions went to both the credibility and reliability of Sheehan’s testimony, as was pointed out to the jury. That does not mean, however, that Sheehan was a perjurer, still less that the verdict is unsafe and unsatisfactory. Despite such criticisms as can be and were made of Sheehan’s testimony, it was open to the jury to accept his evidence and, even if they rejected it, still to be satisfied of the applicant’s guilt beyond reasonable doubt.

We reject Ground 8.

Additional arguments concerning conviction

Although not within the grounds of appeal or mentioned in the applicant’s written submissions, in the course of oral argument the applicant referred to several other matters which he submitted showed that his conviction was flawed. For the sake of completeness, we shall deal with them briefly.

Black bag

In several of the photographs of the crime scene tendered at trial it is possible to see a black bag on the ground near the foot of the deceased. The applicant complained that police said that the bag belonged to a bystander and was returned to the bystander. The applicant submitted that the police had acted improperly. The bag, he said, was important evidence which should have been available at trial.

It is apparent from the transcript that the only thing ever said about the black bag at trial was in the course of evidence of Mr Mooney, the police crime scene examiner. He was asked these question and gave the following answers:

PROSECUTOR: Does that [photograph 31] show the area that you went first to? --- That does, it shows – that shows a westerly view looking along Wingrove Street and the grass plantation is on the left-hand side there, and the deceased, David Robinson, is covered by that white sheet on the left-hand side.
PROSECUTOR: Do we see that portrayed in the subsequent photos, up to say 35, 36 – up to say 36 for the moment? --- Yes, we do.
PROSECUTOR: If you would continue please, Mr Mooney? --- This deceased person was lying on his back on the grass at a point 18 metres west of Station Street. The deceased’s body was covered with a white sheet. His feet were in the east and his head to the west with both arms by his sides. There was a black backpack adjacent to his feet and a set of keys lying on the sheet between his legs. I collected this set of keys and the black backpack. At 12.50 am on Tuesday 11 July, I handed both these items to Detective Sergeant Iddles of the Homicide Squad.
PROSECUTOR: These items, your Honour, if I may interrupt the witness, are items that turn out to be of no significance, they were from bystanders or people attending.

In view of what was there said, and that it was never challenged, we see no reason to doubt that the bag was irrelevant. It is also worth noting that the bag does not appear in the earlier taken photographs of the deceased (Photographs 34 and 35), as opposed to the later taken photographs (Photographs 36, 37, 39, 41, 44, 48, 50, 52). That is consistent with the bag having belonged to someone who only came along or was otherwise involved after the examination began.

Did defence counsel imply that applicant was the arsonist?

The applicant referred to pages 750 to 755 of the Transcript, which records part of defence counsel’s final address. The applicant complained that, in that section of his address, defence counsel implied, contrary to the applicant’s instructions, that the applicant was the arsonist.

The passage in question records defence counsel pointing out all the reasons why, in his submission, the Crown failed to prove that the applicant was not involved in the crime. There is no suggestion in it that the applicant was the arsonist. We are unable to attribute to it the meaning which the applicant suggested.

Witnesses changed evidence

The applicant complained that a number of Crown witnesses gave different evidence at trial to the evidence which they gave at the committal hearing. He did not condescend to many details, but he did single out that two witnesses stated at the committal that the shooter or attacker they saw was considerably taller than five feet one inch in height, which is the applicant’s height, and then said at trial words in substance or to the effect that the shooter or attacker could possibly have been as short as five feet one inch in height.

Clearly enough, there was some such movement in the evidence of some of the witnesses. But contrary to the applicant’s submissions, that does not mean that those witnesses were perjurers or that the jury could not infer from their evidence that the shooter or attacker they said they saw was the applicant. It often happens that a witness’s recollection of what he or she saw changes as to matters of detail over time, and it frequently happens that witnesses’ estimates of height are inaccurate and prone to change when it is pointed out to them that their estimate is inconsistent with other evidence.

Brevity of defence identification of issues

The applicant complained that the prosecutor was permitted to open the Crown case at length but that defence counsel’s identification of the issues was much shorter, and that both the prosecutor and defence counsel told the jury that it had to be short. The applicant said that showed that defence counsel was controlled by the prosecutor or the judge, in a manner in which the prosecutor was not controlled, and thus that the trial was unfair.

As we pointed out to the applicant in the course of argument, the defence identification of the issues was bound to be shorter than the Crown opening. By s 5 of the Crimes (Criminal Trials) Act 1993, the defence response was required to be limited to indicating briefly the facts and the inferences sought to be drawn from those facts and to outlining the issues at trial. If defence counsel had wished to open the defence case at greater length, he had the opportunity to do so at the conclusion of the Crown case. But, because he did not call any evidence, he had no case as such to open.

Key words

The applicant complained that the prosecutor acted unfairly in his final address by repeatedly mentioning what the applicant described as key words, such as ‘keys’ and ‘arsonist’ and ‘shooter’, and thereby ‘brainwashed’ the jury into convicting the applicant.

Clearly, the prosecutor did refer several times to ‘keys’, and the ‘arsonist’ and the ‘shooter’. But it is only to be expected that he would do so. The Crown case was a circumstantial case depending in part on the applicant having a motive to harm the deceased by burning his offices, the fact that witnesses saw someone at or near the scene at the relevant time carrying what appeared to be keys, the fact that the forensic evidence associated the applicant with both the attempted arson, by reason of the DNA found on matches at the scene, and the shooting, by reason of evidence which suggested that the applicant purchased a Tokarev pistol overseas and that he had purchased Tokarev ammunition overseas.

In those circumstances there was nothing unfair or improper about the way in which or the number of times that the prosecutor emphasized the coincidence of those circumstances and the inference, which in conjunction they were capable of yielding, that the arsonist and shooter was the applicant.

DNA contaminated

The applicant complained that the DNA found on matches at the crime scene was ‘contaminated’ and, therefore, not reliable evidence.

It appears that the applicant was labouring under a misconception about the effect of the DNA evidence. There was no suggestion that the DNA was contaminated. As already stated, the evidence was that the matches bore DNA which came from two sources and that the applicant was very likely to be one of those two sources. The fact that it came from two sources does not mean it was ‘contaminated’ or make it otherwise unreliable or irrelevant. Its significance was that it showed that, as well as seeming to be connected with the shooting, because of his purchase and possession of Tokarev pistol and ammunition, the applicant was connected with the matches which were left at the scene of the crime. Neither piece of evidence taken by itself was necessarily sufficient to establish more than the fact of one connection. But, taken together in the context of each other and in conjunction with the other evidence, including the evidence of motive and opportunity, they were capable of yielding an inference beyond reasonable doubt that the applicant was the arsonist and shooter.[17]
[17]Chamberlain v The Queen(No 2) (1984) 153 CLR 521, 626–7; Shepherd v The Queen (1990) 170 CLR 573, 586.

Not essential for the Crown to prove motive

Finally, the applicant complained that, although the Crown opened its case on the basis that the applicant’s motive to harm David Robinson was the applicant’s dissatisfaction with the outcome of the Family Court property proceedings, the prosecutor told the jury, and the judge directed the jury, that the Crown did not have to prove a motive in order to succeed.

Possibly, that may seem confusing to the applicant. But there is no error in it. Motive as such is not an essential element of murder and, therefore, the Crown did not have to prove a motive. At the same time, however, although not essential, motive was relevant because in conjunction with other evidence it was capable of adding to the likelihood that the applicant was the arsonist and thus the shooter. The judge so directed the jury and his Honour was right to do so.[18]
[18]De Gruchy v The Queen (2002) 211 CLR 85, 101 [57(4)].

Conclusion as to conviction

In the result, we refuse the application for leave to appeal against conviction.

Appeal against sentence

Under the heading of Ground 1 of his application for leave to appeal against sentence, the applicant contended that, having regard to the objective circumstances of the crime, particularly the lack of pre-planning, and the applicant’s acquired brain injury, depression and paranoia, the sentence of 28 years’ imprisonment and the non-parole period of 24 years were manifestly excessive

There were also several grounds alleging specific sentencing error, as follows:

· Ground 2 – Mental illness: it was alleged that the judge failed go give sufficient weight to evidence of the applicant’s mental instability and thus failed to appreciate that general deterrence had less role to play in sentencing the applicant than it would in the case with an offender not so mentally afflicted.

· Ground 3 – Special duty: it was alleged that the judge erred in sentencing the applicant on the basis that he owed a special duty to what the judge described as ‘caring’ professionals of which the deceased was one. It was submitted that there is no such duty or at least that it does not result in any aggravation of offending or, alternatively, if there were such a duty and it were capable of aggravating offending, that was not so here because the applicant’s relationship with the deceased transcended their professional relationship and was predominantly in the nature of a personal relationship.

· Ground 4 – Submissions after termination of counsel’s retainer: it was alleged that the judge erred in failing to allow the applicant to make further submissions in mitigation of penalty after the applicant terminated defence counsel’s retainer.

· Ground 5 – Brooding by the applicant: it was alleged that the judge erred in finding that the applicant brooded for years over the injustices which he perceived the deceased to have dealt him and that it aggravated the applicant’s offending.

· Ground 6 – Applicant’s behaviour after killing the deceased: it was alleged that the judge erred in finding, as aggravating circumstances of the offending, that the applicant was prancing around the deceased and ran up to the deceased to check that he had shot the deceased properly.

It is convenient to deal first with the alleged specific errors.
Ground 2: Mental illness:

The judge referred in his sentencing remarks to the applicant’s extensive medical history and a substantial body of expert reports which were tendered on the plea. They included a Mont Park Hospital discharge summary of 22 March 1985; report of Dr G R Croft, psychiatrist, Mont Park Hospital, of 21 July 1986; report of Dr K Mack, psychiatrist, of 18 June 2001; report of Dr D Lipson, general practitioner, of 3 October 2001; report of Dr H Anderson, North Western Mental Health Sunshine Adult Acute Psychiatric Unit of 13 April 2006; report of Mr J Drury, neurophysiologist, of 20 April 2005; and report of Dr Lester Walton, psychiatrist, of 2 June 2008.

On the basis of that material, the judge found that:

It is evident from those reports that you have a lengthy medical history. You attempted suicide by carbon monoxide poisoning in January 1985. Following the 1985 attempted suicide, you have suffered cognitive defects as the result of brain damage in the region of the globus pallidus bilaterally and the right corona radiata. The principal consequence of this injury is in the area of memory, and also in new learning. However, as noted by the clinical neuropsychologist who examined you on 17 April 2008, Mr J Drury, in his report (p 8) you have ‘satisfactory cognitive skills across several measures, including verbal reasoning and social judgment’. Mr J Drury reported that you have deficits in short-term memory and new learning. You were noted to exhibit no evidence of psychosis, depression or suicidal ideation upon admission in 1985 to the Mont Park Psychiatric Hospital. In April 2006 you were admitted to Sunshine Adult Acute Psychiatric Unit as a possible suicide risk, where you remained for six days and were then discharged. It is clear that you have suffered depression over many years. A distinguished psychiatrist, Dr L Walton, in his report of 2 June 2008 following a review of the medical history and examination of you on 9 April 2008 concluded as follows (p 3):
What can be stated unequivocally is that Mr Glascott is a brain-injured individual. It seems highly likely that he was suffering from significant depressive problems prior to the assault upon his brain with carbon monoxide and there have been recurring depressive problems thereafter, more than likely aggravated by the brain injury.
It does seem that Mr Glascott has become increasingly paranoid in more recent years. I suspect that this is a belated consequence of his brain injury as well, as he does not seem to have been observed at any stage in a state of full-blown psychosis.
Simply given the duration of this man’s psychiatric symptoms, it can be safely concluded that he was mentally compromised at the material time.
There was an air of unreality about Mr Glascott’s sense of wellbeing at the time of my assessment. I strongly suspect that in the aftermath of his being convicted and sentenced, he will experience another bout of depression necessitating active treatment.
The combination of this man’s chronic depression, brain injury and paranoia, in my opinion, would allow a sentencer to rely upon the principles enunciated in Verdins et al.

The judge said that the sentence to be imposed should be moderated to reflect the applicant’s mental condition. But he added that he thought it significant that no witnesses, expert or otherwise, had been called on the plea. In particular, he regarded Dr Walton’s absence from the witness box as bearing on the weight to be attached to his opinion.

His Honour concluded that, in view of the ‘general’ nature of Dr Walton’s opinion, and the fact that Dr Walton was not called, it had not been shown that general deterrence was inapplicable or that the weight to be accorded to it in the sentencing process should be reduced.[19] The judge emphasised that, although at the time of offending the applicant:

suffered depression and had some cognitive deficits … you were fully aware of what you were doing and had full control over what you were doing. In particular you were fully aware of, and had full control of, your acquisition of the Russian pistol and its ammunition, your taking it to Station Street fully loaded, your two attempts to set fire to the solicitor’s premises, your shooting of and assault upon Mr Robinson in order to avoid identification and apprehension, and your flight from the scene. At all times you fully knew the wrongfulness of your conduct. It has not been established that you now are, or ever were, psychotic.

[19]Cf R v Verdins (2007) 16 VR 269, 276 [32].

With respect, we see no error in that analysis. In Verdins, it was held that whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. It appears to us that the judge approached the question of general deterrence in accordance with that precept. Views might reasonably differ as to whether Dr Walton’s opinion lacked specificity and as to the extent to which the utility of his report should be regarded as limited by his absence from the witness box. Some might think that the report sufficiently identified the nature of the applicant’s mental disabilities and why a sentencer could conclude that they were so much connected with the offending as to engage the Verdins principles. Further, given that the report was not challenged by the Crown, we would be disposed ourselves to accept it and act upon it, despite Dr Walton’s absence from the witness box. But, that said, it was not wrong for the judge to take the view of the report which he did, especially after putting defence counsel on notice that he was inclined to do so unless Dr Walton were called.

Ground 3: Special duty

Contrary to the applicant’s submissions, the judge did not hold that the applicant owed the deceased a special duty. His Honour did say, however, that:

… I consider that general deterrence has an especial application in this case. That is because resentful persons who seek to punish the caring professions should themselves be discouraged by the law from doing so. It is the proper task of caring professions — lawyers, doctors, welfare persons and many others — to care for unstable persons, which persons can be resentful, brooding and aggressive. As you were. It is the function of the law to protect those caring professions from that incident of their good work.

With respect, that proposition cannot be accepted in the broad terms in which it was stated. Although there are cases in which general deterrence is regarded as particularly important for the protection of vulnerable groups, hitherto the application of that idea has been confined to a just a few tightly defined classes of victim. It applies to crimes committed against police officers carrying out their duty,[20] and logically it may be taken to extend to firemen and ambulance officers and other kindred emergency service workers who risk their lives in the course of their duties.[21] But, as Muir J cautioned in R v Nagy,[22] it is not lightly to be extended to other groups of victims, even if their work is in some ways analogous to that of police officers. As Muir J said:

The discharge of police officers’ duties involves maintaining law and order and necessitates the maintenance of public confidence in and respect for the police service and its members. It carries with it appreciable risks of injury and even death. Because of these matters, and because of the need to facilitate the exercise of powers by police officers, courts have accepted the need to mete out salutary punishment to those who harm or impede them. Police officers are thus in a special category for present purposes and attempts to equate with them public officials and others who have roles which bear a degree of similarity to those of police officers should be regarded with caution.

[20]Kumantjara v Harris (1992) 109 FLR 400, 409; R v Kane [1974] VR 759, 766.

[21]R v Arvanatidis [2008] VSCA 189 [50].

[22][2004] 1 Qd R 63, 81 [74].

Certainly, as the judge said in this case, it is the function of the law to protect solicitors from criminal attacks by disgruntled clients. But a solicitor is not to be equated to a police officer exercising his or her duty. Prima facie, a solicitor is no more in need of the law’s protection than any other member of society.

Possibly, if it were shown that attacks by disgruntled clients on solicitors were prevalent or becoming increasingly prevalent, general deterrence might assume greater importance as a sentencing consideration and so warrant higher sentences. But even then, as McGarvie J warned in R v Batemen[23]

Judicial response in such a situation needs to be a controlled and measured one. This is particularly so at times when well-organised and well-orchestrated campaigns for heavy sentences are being conducted in the community.

[23](Unreported, Court of Criminal Appeal, (Young CJ, Gillard and McGarvie JJ, 29 June 1977), 17–18.

Further, although different views have been expressed from time to time about the sort of evidence required to establish that a particular kind of offence is prevalent or becoming increasingly prevalent,[24] there is much to be said for the view expressed by Professors Fox and Frieberg[25] that:

Where considerably heavier penalties are being proposed on the ground of prevalence, or increased prevalence, the factual basis for such an increase must be more solid than hearsay, selective newspaper reports, or judicial notice.

[24]The competing views were essayed, although not resolved, by Callaway JA in R v Downie and Dandy [1998] 2 VR 517, 520–523; cf R v Lim & Ko [1998] VSCA 54 [34].

[25]Richard Fox and Arie Frieberg, Sentencing, State and Federal Law in Victoria, (2^nd ed), [3.631]

Furthermore, even if there were evidence that attacks by disgruntled clients on solicitors were prevalent or becoming increasingly prevalent (and we note that there was no such evidence given before the judge or offered to us), one may doubt that increasing sentences would do much to deter persons who are so emotionally wrought or otherwise irrational as to attack their solicitor because their case has not gone as might have been hoped.[26]
[26]See Bagaric, Punishment & Sentencing, A Rational Approach, Ch 6 esp at 140–141.

With all respect to the judge, we consider that it was an error to hold that the fact that the subject offence was committed by a disgruntled client against his former solicitor rendered general deterrence especially important.

Ground 4: Submissions after termination of counsel’s retainer

We also accept that the judge was in error in not allowing the applicant to make such further submissions as he sought to advance following the termination of his counsel’s retainer. As was submitted by the applicant, the fact that the applicant terminated his counsel’s retainer implied that he was likely to be dissatisfied with what his counsel had said or failed to say in mitigation of penalty. That being so, fairness dictated that, within reason, the applicant be given a chance to rectify any deficiency as he perceived of it.

Having so identified that error, however, it appears to us that it was immaterial.[27] For there is no evidence or other indication that there was anything else which could have been said on behalf of the applicant, and none of the submissions advanced on behalf of the applicant on appeal was any different to those which were advanced below. In those circumstances, we conclude that the judge’s refusal to hear the applicant further, although an error, could not have made a difference to the sentence which his Honour imposed.
[27]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 116 [80]; R v Healey [2008] VSCA 132 [42]; cf Davey v R [2010] VSCA 346 [29].

Ground 5: Brooding by the applicant

The only reference in the judge’s sentencing remarks to ‘brooding’ is in the following passage:

The genesis of your brooding resentment was family law proceedings between you and your former wife and in which Mr Robinson had acted as your solicitor. The proceedings occurred in 2000 and 2001. In your perception they demonstrated the failure of the legal system and of Mr Robinson in particular to secure your interests. In truth the results were just. Thereafter there were extensive access proceedings concerning a child of that marriage. Throughout those proceedings you acted in an aggressive, manipulative and self-centred manner. Those issues continued until the murder. The final access hearing was due on 18 July 2006, eight days after you murdered Mr Robinson. Mr Robinson was not acting for you in those proceedings but you held him responsible for the initial property result, and the continuing access issues fuelled the fire within you. Thus it was you attended Mr Robinson’s solicitors’ office that Monday night, intent on punishing him by fire, and armed with a loaded and deadly pistol. The Tokarev pistol and ammunition with which you were armed had been illegally acquired by you after lengthy and complex endeavour which endeavour showed constant application of mind by you. If you had not taken the pistol to Fairfield that Monday night, Mr Robinson would still be alive.

In our view, it was open to the judge to make those findings beyond reasonable doubt. They are consistent with the way in which the Crown put its case at trial, and thus with the way in which it may be assumed that the jury decided the case, and there was sufficient evidence to support them. That included the evidence of Mr Houlihan that the applicant was extremely angry that his former wife took property dispute proceedings after signing the agreement, and the evidence of Don Antonicelli that the applicant told him some months before the shooting that the deceased had not processed documents properly in relation to the property settlement with his former wife, which resulted in the applicant losing a large portion of that property.

Ground 6: Applicant’s behaviour

Nor do we see any error in the judge’s finding that the applicant was prancing around the deceased and ran up to the deceased to check that he had shot the deceased properly. As the judge recorded in his sentencing remarks, that evidence was given by Paul John Sheehan, in almost exactly those terms. Despite such doubts as there may be about the reliability of some aspects of Mr Sheehan’s testimony, it was open to the judge to accept his evidence, which was consistent with what had been observed by the witnesses Samantha Addamo and Hisma Mtandwa.

Ground 1: Manifest excessiveness

That leaves the question of whether the sentence or non-parole period were manifestly excessive. In our view, they were.

Given that the offending was not premeditated, but reactive, and allowing for the undoubted mental limitations of the applicant at the time of the offence, as explained in Dr Walton’s report, we consider that a sentence of 28 years’ imprisonment was beyond the range for this kind of offending.

To say so is not to doubt that this was a very serious offence which, in all probability, deprived an active middle aged professional man of a substantial proportion of his life, and certainly imposed untold misery and hardship on his immediate family. For those reasons, it called for a substantial sentence to denounce the heinousness of the offence and to visit just punishment on the offender. But, in face of the applicant’s depleted mental condition at the time of offending and, consequently, what we judge to have been his reduced moral culpability, we do not consider that there was the same need for punishment or general deterrence as would otherwise have been the case.

Conclusion

In the result, we have determined to set aside the sentence passed below and re-sentence the applicant to 24 years’ imprisonment with a non-parole period of 20 years.

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[2011] VSCA 109

29 April 2011