Glennon v The Queen - [1993] HCATrans 352

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M42 of 1992
B e t w e e n -
MICHAEL CHARLES GLENNON

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

Glennon(4)

18/11/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 NOVEMBER 1993, AT 10.17 AM

MR P.C. DANE, QC:

May it please the Court, I appear with my

learned friends, MR O.P. HOLDENSON and
MR G.J. THOMAS, (instructed by L.M. Jamieson)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MS K.E. JUDD, for the Crown,
(instructed by J.M. Buckley, Solicitor to the
Director of Public Prosecutions)

MR DANE: If the Court please. This case, as we understand

it, is limited to the issue of the application of

the proviso. The error identified by the court
below was a breach of the principle enunciated in
Petty v Maiden.
The Court of Criminal Appeal operated upon a

concession, made by me, that the issue in the
ground of appeal was limited to two counts, being
count 11 and 14, perhaps more conveniently
described as Behnk and Palmieri, being two of the
complainant witnesses.
Now, what followed in the judgment of the

Court of Criminal Appeal was the identification of the error of the trial judge in respect of the
principle as it applied to those counts, but
through an analysis of the facts and issues
applicable to the defences in those counts, the
defences to those counts were marginalized and
trivialized, so as to give the appearance of them
being insignificant, as compared to the way in
which the case was, in fact, conducted by both
sides, and thus the proviso was applied.
Now, before turning to the substance of this

case we wish to say something about the way in
which this ground came before the Court of Criminal

Appeal and then as to the concession. The ground
was not part of the original grounds of appeal that

first were drawn. What happened was, this Court
made the decision in Maiden v Petty and the learned
Chief Justice of Victoria, Sir John Young, at the
time drew both parties' attention to that judgment
and, accordingly, the first appeal was adjourned so
that both parties could address argument in
relation to it.
The next time the case came before the Court

of Criminal Appeal it had been joined with the
leave of the registrar. It was argued. This Court
now knows that, of course, it was decided on one
point, one point alone. That caused this Court to
reconvene again on the application of the Director
of Public Prosecutions, but it was remitted for the
arguments to be put again because there had been no

Glennon

18/11/93

judgment in relation to all the other grounds, of
which this was included.
Accordingly we went back to the…

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 Glennon v The Queen

Details

AGLC: Glennon v The Queen [1993] HCATrans 352
Case: [1993] HCATrans 352
Decision Date

CaseChat Overview and Summary

This matter comes before the High Court of Australia on an application for special leave to appeal by Michael Charles Glennon. The dispute concerns the application of the proviso by the Court of Criminal Appeal of Victoria. The applicant contends that the Court of Criminal Appeal erred in its application of the proviso, which was invoked following an identified breach of a legal principle by the trial judge. This error, it is argued, arose from the way the Court of Criminal Appeal analysed the facts and issues pertaining to specific counts, thereby marginalising and trivialising the defences presented.

The central legal issue before the High Court is whether the Court of Criminal Appeal correctly applied the proviso to the facts of the case. Specifically, the applicant argues that the Court of Criminal Appeal's approach to the grounds of appeal, which were not part of the original grounds but were introduced following a relevant High Court decision and at the invitation of the Chief Justice, led to an improper application of the proviso. The applicant also raises concerns about the structure and context of the trial judge's directions to the jury, particularly the provision of transcribed general legal principles to the jury in written form, which remained with them throughout their deliberations.

The applicant's argument centres on the submission that the Court of Criminal Appeal, in its analysis of the grounds limited to two specific counts, effectively trivialised the defences. This, it is contended, led to the erroneous application of the proviso, which allows an appeal to be dismissed despite a legal error if it is considered that no substantial miscarriage of justice has occurred. The applicant further submits that the written form of the general legal directions, provided to the jury before their deliberations on individual counts, meant that any erroneous directions were present throughout the jury's consideration of each count.

Orders