John Thomas Glascott v The Queen - [2022] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0103

JOHN THOMAS GLASCOTT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2022
DATE OF JUDGMENT:	10 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 158
JUDGMENT APPEALED FROM:	[2008] VSC 236 (Cummins J)

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CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second appeal – Applicant convicted of murder – New evidence – New evidence in relation to DNA, other potential suspects and whereabouts of applicant at the time of the murder – Whether evidence fresh and compelling – Evidence not fresh and compelling – Application for leave to bring second appeal refused – Criminal Procedure Act 2009, ss 326A and 326C.

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Counsel
Applicant:		Mr A L Hands
Respondent:		Ms E Ruddle QC with Ms J Wang
Solicitors
Applicant:	Emma Turnbull Lawyers Pty Ltd
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MACAULAY JA:

David Robinson was a solicitor who ran his own firm from premises in Station Street, Fairfield. On 10 July 2006, he was fatally shot at the rear of his premises. In May 2008, the applicant, one of Mr Robinson’s former clients, was tried and convicted of his murder. The applicant was subsequently sentenced to a term of imprisonment of 28 years, with a non-parole period of 24 years.[1] In April 2011, this Court refused his application for leave to appeal against conviction, but allowed an appeal against sentence and resentenced the applicant to a term of imprisonment of 24 years with a non-parole period of 20 years.[2] An application made by the applicant for special leave to appeal to the High Court was refused in February 2015.[3]
[1]DPP v Glascott [2008] VSC 236.
[2]Glascott v The Queen [2011] VSCA 109 (‘First Appeal Reasons’).
[3]Glascott v The Queen [2015] HCA Trans 22.
The case against the applicant at trial was circumstantial. There was clear evidence of motive, opportunity and the applicant’s presence at the crime scene at the time of Mr Robinson’s death. The applicant pleaded not guilty at trial. He did not give evidence or call any witnesses. In dismissing the application for leave to appeal against his conviction, this Court said that ‘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’.[4]
[4]First Appeal Reasons, [117].
The applicant now applies for leave to bring a second appeal under s 326A of the Criminal Procedure Act 2009 (‘the Act’). He contends that there is fresh and compelling evidence that should, in the interests of justice, be considered on a second appeal. His proposed ground of appeal is:
1.Fresh and compelling evidence establishes that there has been a substantial miscarriage of justice in [the applicant’s] trial.
PARTICULARS
There is fresh and compelling evidence that:
1.1 A forensic evidence report by Jane Taupin casts doubt on 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 John Thomas Glascott v The Queen

Details

AGLC: John Thomas Glascott v The Queen [2022] VSCA 158
Case: [2022] VSCA 158
Decision Date: 10 August 2022

CaseChat Overview and Summary

The applicant, John Thomas Glascott, sought leave to bring a second appeal against his conviction for murder, arguing that new evidence was fresh and compelling. The application was heard by the Court of Appeal. The key issue was whether the new evidence, which included DNA evidence, information about other potential suspects, and the applicant's whereabouts at the time of the murder, was fresh and compelling under section 326C of the Criminal Procedure Act 2009. Additionally, the court needed to determine if the applicant had exhausted his rights to appeal and whether there was a statutory basis for a second appeal.

The court found that the applicant's submissions were largely an attempt to relitigate issues that had already been determined against him in previous appeals. The new evidence did not meet the threshold of being fresh and compelling as required by section 326C of the Act. The court also noted that there was no statutory provision allowing for a second appeal outside the specific provisions outlined in Part 6.4 of the Act. Furthermore, the applicant had already exhausted his original rights of appeal and could not relitigate grounds of appeal that were rejected in his first application for leave to appeal. Consequently, the application for leave to bring a second appeal was refused.

The final orders of the court were that the application for leave to bring a second appeal was dismissed. The court confirmed that the applicant had no right to a second appeal outside the provisions specified in Part 6.4 of the Criminal Procedure Act 2009 and that the new evidence did not warrant the granting of leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence supporting the second strand of the Crown’s circumstantial case was as follows:·Mrs Davine gave evidence that on 8 July 2006 she received two calls from the applicant and on the morning of 9 July 2006 she received 12 calls from the applicant. She did not answer these calls, which went to voicemail.·Joshua Davine (Mrs Davine’s husband) gave evidence that on the afternoon of 10 July 2006, he and the applicant had a confrontation outside the applicant’s daughter’s school. He said that the applicant threw ‘what looked like a ball of keys or some sort of ball made of metal or something’ at Mr Davine’s car as he drove away. Police subsequently attended the scene and, at 3:47 pm, found the applicant ‘on the nature strip lying in the recovery position’. The applicant told police that he had been arguing with Mr Davine.·After Mr Davine arrived home on 10 July 2006, he received three or four phone calls from the applicant. In the first call, which Mr Davine picked up, the applicant said to Mr Davine something along the lines of ‘let’s fight it out’. Mr Davine did not pick up the remaining calls, but the applicant left him voice messages along the same lines.The proposed fresh evidence The applicant relies on the following affidavits as containing fresh and compelling evidence within the meaning of s 326C of the Act:·two affidavits sworn by Maria Carroll on 22 March 2021 (‘the first Carroll affidavit’) and 11 May 2022 (‘the second Carroll affidavit’); ·two affidavits sworn by Carole Dunn on 12 March 2021 (‘the first Dunn affidavit’) and 11 May 2022 (‘the second Dunn affidavit’);·an affidavit affirmed by the applicant on 4 August 2021 (‘the applicant’s affidavit’);·an affidavit sworn by Rosalie Standley on 4 August 2021 (‘the Standley affidavit’); and·two affidavits affirmed by the applicant’s solicitor, Emma Turnbull, on 25 November 2021 (‘the first Turnbull affidavit’) and 25 January 2022 (‘the second Turnbull affidavit’). Ms Carroll is a former conveyancer, who worked for Mr Robinson for approximately 18 months to two years between 1987 and 1989; and later worked as a self-employed conveyancer, from an office at the rear of Mr Robinson’s premises, between November 2003 and May 2004. In her affidavits, Ms Carroll deposes to the applicant coming in to see Mr Robinson regularly. Ms Carroll deposes that Mr Robinson was helping the applicant with legal proceedings to get access to his child. She recalls that the applicant was ‘most frustrated which [she] understood to be due to the fact that the child’s mother was blocking his attempts to see the child’. Ms Carroll deposed that ‘there did not appear to be any animosity between John and David that [she] observed’, and that their relationship ‘appeared to be amicable’. She also described her observation of this relationship as seeming to be ‘friendly and cordial’. Ms Carroll then went on to depose to apparent conflicts Mr Robinson had with ‘an Italian fellow, first name of Sammy’, whose surname she did not know; and a Steve Matterson, who she said was a regular visitor to Mr Robinson’s practice, and whose relationship with Mr Robinson was ‘extremely accusatory and abusive’. She also deposed at some length to her belief about the circumstances of a sale of a house, and ‘rumours’ that a person known to Mr Robinson may have had this property ‘put into an alternative name in order to avoid scrutiny’; as well as the existence of a syndicate that Mr Robinson may or may not have been a member of.

Decision

Reasons for decision

It is plain from the submissions made by the applicant that he wishes to relitigate many of the matters that have already been determined against him. The short answer to these additional submissions is that they were not supported by any evidence of the kind required by s 326C of the Criminal Procedure Act. Moreover, there is no statutory provision giving the appellant the right to a second appeal on any basis outside that specified in Part 6.4 (which contains ss 326A–326D) of the Act. Equally, the applicant having exhausted his original rights of appeal, cannot now seek to relitigate grounds of appeal which were rejected in his first application for leave to appeal.Conclusion The application for leave to appeal must be refused.---

Ratio Decidendi

Legal Principle Established

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