John Thomas Glascott v The Queen

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 methodology and findings of the police forensic expert, Guarino.
1.2 Claude Larosa’s subsequent affidavit provides alibi evidence for the accused at the time of the murder. Larosa admitted his error in the evidence he gave at the trial.
1.3 The affidavits of Carole Dunn and Maree Carroll who worked for David Robinson provide evidence of other person’s motives to kill David Robinson and negative any such motive by the applicant. They were not called as witnesses at trial.
1.4 Rosalie Standley, David Robinson’s business neighbour, avers to the fact that David Robinson’s firm’s front glass windows were shot out by gunfire on two occasions. Ms Standley was not called as a witness at trial.
1.5 Sergeant Ron Iddles’ public claims prior to the trial that the murderer was a disaffected client closed down other avenues of investigations. Operation Ribbon was a joint homicide and fraud investigation. No evidence of fraud by David Robinson was led at trial. Such evidence would also have provided a list of persons who may have had a motive to kill David Robinson.

Second and subsequent appeals

The right of a person to appeal on a second or subsequent occasion is provided for in s 326A of the Act. Section 326C then deals with what an applicant must establish in order to obtain leave to appeal under s 326A; and s 326D identifies how a second or subsequent appeal is to be determined. Sections 326A, 326C and 326D relevantly provide:
326A   Right of second or subsequent appeal against conviction
(1)A person convicted of an indictable offence by an originating court who—
(a)has exhausted the person's right to appeal against conviction under Division 1 of Part 6.3; or
(b)has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
(2)…
326C Determination of application for leave to appeal under section 326A
(1)The Court of Appeal may grant leave to appeal under section 326A if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2)…
(3)In this section, evidence relating to an offence of which a person is convicted is—
(a)      fresh if—
(i)       it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b)      compelling if—
(i)       it is reliable; and
(ii)      it is substantial; and
(iii)     either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
(4)Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the conviction.
326D   Determination of second or subsequent appeal against conviction
(1)On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 326A.
In Roberts v The Queen,[5] after referring to the High Court’s decision in Van Beelen v The Queen,[6] this Court identified 11 relevant principles in relation to ss 326C and 326D. These 11 principles were subsequently summarised by this Court in Meade v The Queen,[7] as follows:
[5](2020) 60 VR 431 (‘Roberts’).
[6](2017) 262 CLR 565 (‘Van Beelen’).
[7][2021] VSCA 74.
1.[Section 326C] manifests an intention that the finality of the criminal process yield in the face of fresh and compelling evidence which satisfies an appellate court that there has been a substantial miscarriage of justice.
2.The right to seek leave to appeal is additional to, and to be contrasted with, the mechanism of executive referral in the case of a petition for mercy. The leave requirement is intended to prevent successive meritless applications.
3.The statutory preconditions for the grant of leave under the new legislation may be compared and contrasted with the statutory provisions governing the grant of leave in the ordinary case.
4.The notion of fresh evidence as opposed to new evidence reflects an underlying concept commonly applied by appellate courts.
5.The fresh evidence must have the qualities prescribed by s 326C(3). It will not be sufficient for the purpose of leave to establish that it is reasonably arguable that the evidence has these qualities.
6.The onus is upon the applicant to satisfy the Court that the preconditions to the grant of leave are met.
7.The words ‘reliable’, ‘substantial’ and ‘highly probative’ are to be given their ordinary meanings. In that context, the Court in Roberts quoted a passage from Van Beelen. Amongst other things, in that passage the High Court observed that:
The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding.
8.The Victorian legislation has a component not present in the South Australian statute [considered by the High Court in Van Beelen], being that evidence is ‘compelling’ if it would have eliminated or substantially weakened the prosecution case.
9.Section 326C has the further condition that it is in the interests of justice that the fresh evidence be considered on appeal.
10.The notion of a substantial miscarriage of justice is not limited to consideration of evidentiary questions but may embrace questions of irregularity in the trial.
11.The concept of the ‘interests of justice’ in the context of the grant of leave is not to be conflated with the ultimate issue of whether there has been a substantial miscarriage of justice.

The case at trial

The relevance and cogency of the fresh evidence on which the applicant now relies has to be assessed in the light of the evidence and issues in the trial in which he was convicted. Accordingly, it is necessary to give a brief summary of some of the evidence and the parties’ cases at trial.

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, Vincenzina (Tina) Davine.
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, Mrs Davine applied to a judge of the Family Court to have the agreement set aside and obtained an order to that effect. The applicant, however, 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. These family law proceedings continued and were ongoing in July 2006.
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 his interests.
So motivated, on the night of Monday 10 July 2006, the applicant attended Mr Robinson’s premises with the intention of setting them alight. He was also armed illegally with an unlicensed Tokarev pistol and ammunition (both of which are scarce in Australia), 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 sometime before 8:00 pm and loitered for a while, contemplating the action he was about to take. Then, shortly after 8:00 pm, 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 his 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 to inform her of the interference 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, and then shot at him a number of times, striking him once 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 Mr Robinson had succumbed to his wounds. She remained with the deceased until ambulance officers and the police arrived.
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. We will discuss the DNA evidence in more detail below.
There was also evidence at trial that, before the shooting, the applicant had said to a number of people that he was dissatisfied with the way in which Mr Robinson had handled the property settlement agreement; and that he 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 scarcer long Mauser pistol).

Defence case at trial

The defence case at trial (not to suggest that he carried any onus) was that the applicant did not have any motive to harm the deceased, nor anything to do with the attempted arson or shooting. At trial, the applicant did not give (or call) any evidence.

The evidence given at trial of the events that occurred on the evening of 10 July 2006

The rear of Mr Robinson’s office on Station Street backed onto a lane off Wingrove Street (‘the rear lane’). Jacinta Duffy, who lived in Gillies Street, near the rear lane, gave evidence that at around 6:30 pm on 10 July 2006, she heard loud thuds and the sound of glass breaking.
Just before 7:00 pm, Samantha Addamo who worked on the first floor of one of the shops on Station Street saw a man pacing up and down the other side of the road. The man walked with a sway or limp. The man was putting his gloves on and taking them off as he paced. At one point he went up to a white Ford Capri with a black soft top parked on Station Street. Ms Addamo was so concerned by the man’s behaviour that she called 000. In that call, she gave the registration of the Ford Capri as RSZ 078. This matched the description and registration of the applicant’s car, as conceded by defence counsel in his final address at trial.
Two police officers were dispatched to look for the car described by Ms Addamo. Meanwhile, Ms Addamo got into her car and drove around the area. She observed the man coming out of the rear lane holding scrunched up paper. On her final circuit of the area she noticed that the Ford Capri car was no longer parked where it had been. She then drove home. The police officers responding to Ms Addamo’s 000 call were not able to locate the man or the car described by Ms Addamo. They left the area at approximately 7:15 pm.
As we have already said, at around 8:00 pm, Mr Robinson left home with his son, Nicholas, and drove to his office so that Nicholas could print an assignment. When they arrived, they noticed that the doors to the office had been smashed and there was smoke inside. There was a phonebook on the floor that looked like it had been on fire. Nicholas started to print off his assignment. Mr Robinson called his wife from one of the office phones, told her that someone had tried to burn the office down, and asked her to come. He then went around to the back of the office to have a look around.
At around this time, Ms Duffy heard from her house loud male voices, like people shouting and yelling in the back laneway, and thuds against the back fence. She then heard a sound like a gunshot, followed by a second. Other witnesses in the area also heard noises like gunshots or a car backfiring.
At around 8:30 pm, Hisman Mtandwa arrived at Station Street. As he passed the car park adjacent to the rear lane, he saw two males grappling with each other, heading towards the laneway. He heard a series of gunshots. He gave a warning to a man and woman he passed and then ran to a restaurant on Station Street and asked the owner to call the police. As he was looking out the front window of the restaurant, he saw the two men come into the street from the laneway and cross the road onto grass. One of the men was hunched over. The other man was standing and holding a gun. Mr Mtandwa left the restaurant and rang 000. This call was placed at around 8:37 pm. By the time Mr Mtandwa finished calling 000, the man who had been standing was no longer there.
Paul Sheehan gave evidence of walking with his sister near the intersection of Wingrove and Station Streets. He thought he heard a gunshot. He and his sister kept walking. He then became aware of a man coming towards him who said someone had been shot. Mr Sheehan then saw a man stagger out into the middle of the road. Another man with a gun was ‘sort of prancing around’ the first man. The man with the gun then ran away. Mr Sheehan described the gunman as short.
Meanwhile, Mrs Robinson had arrived at the office with their son Hugh. Mrs Robinson, Nicholas, and Hugh then went out the back to find Mr Robinson. They saw glass bricks in the windows had been smashed, the door was unlocked and there was smoke in that area. Nicholas stepped into the rear lane from the office, turned left, and saw Mr Robinson lying on grass near the bus station.
Claudio Larosa, who was a client of the applicant’s clairvoyancy business, gave evidence that he made a number of phone calls to the applicant’s home phone number on 10 July 2006. Telephone records showed that the applicant picked up the calls made to his home at 5:14 pm and 5:45 pm. The applicant, however, did not pick up calls made to his home at 6:57 pm, 7:05 pm, 8:44 pm, 9:56 pm, and 10:50 pm.

The forensic evidence in more detail

Two fired bullet cartridges and five unfired cartridges were found in the rear lane. All of these cartridges were 7.62 by 25 Russian Tokarev calibre. These cartridges are usually fired from a Tokarev model TT or TT33 self-loading pistol, but they can also chamber in a 7.63 by 25 Mauser.
Fourteen matches were found by the crime scene examiner near Mr Robinson’s office: two at the front of the premises, seven just outside the back fence, four inside the back fence, with an empty White Flame matchbox, and a single match resting on the inside mail slot ledge of the front door. The crime scene examiner also found a box of Redheads matches containing a quantity of unused matches on the floor inside the back of the office.
Fabio Guarino, a forensic scientist, conducted DNA analysis on the matches and matchboxes located at the scene and gave evidence of the following results:
·No DNA was detected in the sample taken from the White Flame matchbox.
·A partial DNA profile originating from at least two individuals was obtained from the Redheads matchbox. The findings provided strong support for the proposition that the mixture of DNA originated as a result of contributions from the applicant and one unknown individual selected at random from the Australian Caucasian population. In statistical terms, it was 6,400 times more likely that the DNA had originated as a result of contributions from the applicant and one unknown individual selected at random from the Australian Caucasian population than if it had originated from two unknown individuals selected at random from the Australian Caucasian population.
·The unburnt sections of the fourteen matches were subjected to DNA testing. The DNA profile that was obtained had more than one contributor. The findings provided extremely strong support for the proposition that the mixture of DNA detected on the fourteen matches originated as a result of contributions from the applicant and one unknown individual selected at random from the Australian Caucasian population. In statistical terms, it was 21 million times more likely that the DNA had originated as a result of contributions from the applicant and one unknown individual selected at random from the Australian Caucasian population than if it had originated from two unknown individuals selected at random from the Australian Caucasian population.

The strands to the Crown’s circumstantial case against the applicant

As we have already observed, the Crown case against the applicant at trial was a circumstantial one. In his final address, the prosecutor relied upon ten strands which he submitted proved the case against the applicant beyond reasonable doubt. Those strands were:
(1)The applicant had Tokarev ammunition, and had a gun that fired Tokarev bullets.
(2)In early July 2006, the applicant was in a highly agitated state.
(3)The applicant’s highly agitated state was due to his brooding obsession about the injustices of the property settlement with Mrs Davine. Mrs Davine’s barrister, Michael Houlihan, gave evidence of conversations which he had with the applicant, and in which the applicant said he was aggrieved with the property settlement and that he wanted to destroy his ex-wife and her husband so that they would lose their house.
(4)The applicant considered Mr Robinson to be responsible for the injustice of his property settlement. Friends of the applicant gave evidence of the applicant saying to them that the outcome of the property dispute was Mr Robinson’s fault.
(5)The applicant was not at home after his last phone call to Mr Larosa that was answered at 5:45 pm on 10 July 2006.
(6)The applicant was in Station Street, Fairfield on the evening of 10 July 2006. The evidence of Ms Addamo established that the applicant’s car was in Station Street at around 7:00 pm. Ms Addamo described the man she saw as having a limp, and Mrs Davine and the informant each gave evidence that the applicant walked with a limp. While the Crown conceded that witnesses gave varying descriptions of the height of the man they saw, it submitted that these descriptions were consistent with the man they saw being the applicant.
(7)The DNA evidence provided strong support for the proposition that the applicant’s DNA was on the Redheads matchbox and burnt matches found at Mr Robinson’s office. That evidence placed the applicant at the scene at the time of the lighting of the fires.
(8)Mr Robinson was shot with a gun that fired Tokarev bullets. Evidence was given that there were a total of 28 Tokarev pistols registered in Australia (19 of them in Victoria). The police firearms expert stated that Tokarev pistols are scarce.
(9)The applicant’s attitude to the question of access to his daughter suddenly and dramatically changed between 10 July and 11 July 2006. Mr Houlihan gave evidence that on 11 July 2006, he received phone calls from the applicant in which the applicant said he would no longer be pursuing the access issue, and asked Mr Houlihan to act for him, or a friend, in a big case. When Mr Houlihan asked why the applicant had been pursuing the access litigation, the applicant said that it was revenge for what his ex-wife had done with regard to the property settlement.
(10)Police found torn pages in a rubbish bin in the applicant’s study when executing a search warrant at the applicant’s house on 12 July 2006. Those torn pages had ‘David Robinson’ written on them.
The evidence supporting the first strand of the Crown’s circumstantial case was as follows:
·A number of witnesses gave evidence of the applicant asking them where he could obtain a gun. When one of those witnesses asked the applicant why he wanted a gun, the applicant said that he disliked and wanted to kill his ex-wife’s solicitor and his ex-wife’s husband.
·The hard drive from the applicant’s computer was seized by police and analysed. It showed that in February 2006, a person using the computer had conducted numerous internet searches on Tokarevs, pistols and bullets. An email fragment was also found on the hard drive. It contained an email sent from the email address commencing ‘johnglascott@’ at 8:13 pm on 20 February 2006 to another email address commencing keystonejoe@’, as follows:
Dear Sir, I would like to order 3 bullets for a Tokarev pistol, being 7.62x25m or go to http-Tokarev TT33.jps to see the gun it self (scil, itself) and to have the three single bullets sent to me in Australia, for research, is this possible, John.
·On 28 February 2006, customs officers at Melbourne International Airport searched the applicant and located a number of documents in the applicant’s possession. They included handwritten notes stating ‘Tokareve 7.62 x 25mm Cartridge 8 rounds’.
·In March 2006, Customs intercepted four envelopes addressed to the applicant. Each envelope had a 7.62 by 25 Russian Tokarev calibre bullet in it. A fingerprint expert gave evidence that the applicant’s fingerprints were found on some of these documents and a forensic document examiner gave evidence that the handwriting on each of the four envelopes was by the applicant.
·Emma Peterson, the applicant’s daughter, gave evidence that when she was at the applicant’s house in April 2006 she saw on a printer in the study two to four printed pages with pictures of a gun. She then activated the screen on the computer, maximised a window and saw the same picture of the gun that had been printed out. The applicant then came into the study. He said that police had come to the house with a warrant regarding bullets. The applicant told Ms Peterson that someone had sent the bullets for him so he could use it for the gun.
·Graeme Douglas, a friend of the applicant, gave evidence that a few months prior to July 2006, he had conversations with the applicant in which the applicant told him that Customs or federal police had searched the applicant’s house because they had intercepted bullets through the post. The applicant said that he had not received those bullets but that he had sent some to himself via an overseas courier company. About six to eight weeks before 10 July 2006, Mr Douglas confronted the applicant saying that he (Mr Douglas) believed the applicant had a gun and wanting the applicant to reveal where it was. The applicant said, ‘don’t reveal it to these people, let me do it to my psychiatrist’.
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’).

The Carroll affidavits

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.
In one of a number of paragraphs in the first Carroll affidavit objected to by the respondent as being inadmissible hearsay or inadmissible opinion evidence, Ms Carroll concluded:
In addition to the above, there were many other parties on a general level that were often feeling aggrieved against David in relation to court matters both civil and criminal. I often saw clients coming to the office to discuss with David (in a disappointed or angry mode) outcomes of matters.
The second Carroll affidavit was sworn in response to objections taken by the respondent to material in the first Carroll affidavit, and was an attempt to deal with those objections by providing additional detail and argument.
The Dunn affidavits
In the opening paragraph of her first affidavit, Ms Dunn requested that the affidavit be treated as confidential ‘because as a former employee of various legal firms [she was] bound by an implied term of confidentiality concerning any of their activities’.
Ms Dunn deposed to first meeting Mr Robinson in 1986 and working for him until about 1988; and then later working for him between 1996 and 2003. Much of the first Dunn affidavit was objected to by the respondent on the basis that it contained inadmissible hearsay, inadmissible opinion evidence and/or was not relevant. For example, a potentially important part of the first Dunn affidavit (so far as the applicant is concerned), which was objected to by the respondent was Ms Dunn’s statement:
David Robinson accumulated a number of enemies during his lifetime, but to the best of my knowledge and belief [the applicant] was not one of those enemies.
A portion of the first Dunn affidavit not objected to by the respondent, and relied upon by the applicant in his written case, is as follows:
There were other occasions of burning newspaper being pushed under the front door of the practice to set fire to the building. David [Mr Robinson] explained this happening because he had placed a 1930’s iron safe near the glass front door and vagrants were trying to access the safe.
There were also occasions of burning newspaper being pushed under the back door of the practice and the window in the rear wall was broken several times. The building backs onto a narrow open ended laneway situate near the railway station allowing access by the public to the back of the building.
I remember when David decided to take his wife and three children on a holiday to Disneyland, the plumbing at the rear of the building was sabotaged by persons unknown and the building was flooded.
David never reported any of these ‘incidents/attacks’ to the police.
Another portion of the first Dunn affidavit not objected to by the respondent, and relied upon by the applicant in his written case, is as follows:
John [the applicant] telephoned me on 22 December 2000 and told me that as a consequence of David [Mr Robinson] failing to comply with his instructions he had had to go to another firm of solicitors to get the matter sorted out. I made script notes of John’s telephone advices to me regarding the matter which I circulated to the rest of the staff. Now produced and shown to me and marked with the letters ‘CPD1’ is a copy of my transcribed notes of those conversations … .
Exhibit CPD1 to the first Dunn affidavit is a two-page typed document which commences:
TEL ATT P/I 1.30 p.m. 22/12/00 (3 calls)
John Glascott rang.
Looking for DMR. Said he’s got the money for him.
Talked about being in the coffee lounge with DMR. He said about you, you were vulgar, that he couldn’t stand you, that there’s a lot of tension in the office, it’s getting unbearable. I told DMR that he is too involved with his non-legal business, his so-called investments. He said about you I can’t get rid of her at the present time.
He wanted between $4,000 and $6,000. He had the guts to ask me. And he was bagging you down to the shits.
A little further down the first page, the following appears:
I want to punish him for what he did for my house — and he gave me the golden opportunity. He honestly deserves all the shit that is dished out. He is not a competent solicitor, and he’s not even a friend.
I said to David don’t give my wife the cheque until she’s signed the transfer. But he did it anyway, he said he knew best.
…
I’m not saying it because I want to make problems, but David is a bastard.
The exhibit concludes:
My relationship with David is nil. I was just toying with him because he cost me my house. He done nothing. He never did anything for me. I was devastated. I want to punish him. The thoughts that were going through my mind were unstable.
The opportunity has come where I can give him back some of his medicine. I’ve done it by telling you what he said, and by tearing up the agreement and throwing it in the air. He’s now feeling sick in the stomach, like I did. I’m not a bad person. I’d have leant David the money.
Like the second Carroll affidavit, the second Dunn affidavit was sworn in response to objections taken by the respondent to material in the first Dunn affidavit, and was an attempt to deal with those objections by providing additional detail and argument.
In the second Dunn affidavit, Ms Dunn referred to a statement objected to by the respondent in her first affidavit that she had no doubt that the applicant had ‘fully vented his anger against [Mr Robinson] by refusing to lend him money and providing what was apparently confidential information to [her]’. Ms Dunn then referred to the line in exhibit CPD1, ‘Looking for DMR said he’s got the money for him’, and said that this showed the applicant’s ‘fondness’ for Mr Robinson as the applicant was then (in December 2000) ‘relenting on his refusal to lend [Mr Robinson] the money’.
The applicant’s affidavit
The applicant’s affidavit is a scattered description of various matters that occurred before Mr Robinson was shot, the applicant’s trial, his first appeal and his application for special leave to appeal to the High Court. The applicant’s affidavit sets out his belief about various matters, and refers to some newspaper articles and hearsay statements upon which the applicant relies. Much of the material in the applicant’s affidavit is objected to by the respondent on the basis that it is not relevant or inadmissible hearsay. The affidavit concludes:
I have also attempted to draw the court’s attention to the true character of Robinson, a fact of which I was ignorant when I went to trial. I had no quarrel with him and no motive to kill him. There were many other people who did, however.
I am asking the court to allow me to run a retrial to test the above evidence and allow me a chance to clear my name.

The Standley affidavit

In the years leading up to and at the time of the shooting, Ms Standley conducted a business in Station Street next door to Mr Robinson’s premises. Ms Standley deposed that in 2006 she slept in her premises downstairs on a bed next to the wall she shared with Mr Robinson’s premises. She said that she slept with a guard dog because she had been broken into a number of times and had received threats from Mrs Robinson after she (Ms Standley) refused to assign her lease to Mrs Robinson’s company.
Relevantly, for present purposes, Ms Standley deposed as follows:
One night before 2003, I was woken out of a deep sleep by [the guard dog] acting aggressively and barking furiously. I calmed him down and went back to sleep.
The next morning Carole Dunne (sic) ran into my shop. She was beside herself. She asked if I was alright. I said ‘Yes.’ She told me someone had fired shots into David’s office and she was making sure I was alright. On at least one other occasion, David’s office was peppered with bullet holes.[8]
After I spoke to Carole, I went into Station Street and saw a number of bullet holes in the front glass panes of David’s office.
David never reported the matter to the police.
[8]This sentence was objected to by the respondent on the basis that it was hearsay.

The Turnbull affidavits

The first Turnbull affidavit did not depose to any matters of substance. It dealt with two topics: first, the DNA evidence given at trial; and secondly, the evidence of Mr Larosa.
In respect of the DNA evidence, Ms Turnbull observed that Mr Guarino gave evidence at trial about DNA found at the scene of the shooting, in accordance with his report dated 28 February 2007 (‘the first Guarino report’). Ms Turnbull exhibited the first Guarino report, together with a second report dated 10 October 2010, prepared by Mr Guarino after the trial (‘the second Guarino report’). Ms Turnbull then exhibited an expert report prepared by a forensic science consultant, Jane Taupin, dated 14 December 2012 (‘the first Taupin report’). The first Taupin report contained commentary upon the first Guarino report and the second Guarino report.
The first Turnbull affidavit also exhibited an affidavit, purported affirmed by Mr Larosa on 18 May 2013[9] (‘the Larosa affidavit’). We will discuss the Larosa affidavit in more detail below.
[9]Although the affidavit is dated 1 April 2013.
Like the first Turnbull affidavit, the second Turnbull affidavit did not depose to any matters of substance. In the second Turnbull affidavit, Ms Turnbull exhibited a further report from Ms Taupin (‘the second Taupin report’) dated 20 January 2022.

The Larosa affidavit

Mr Larosa gave evidence at trial. At trial, he gave evidence that his full name was Claudio Larosa. The Larosa affidavit is dated 1 April 2013, and is headed ‘In the High Court of Australia’. On its first page it is said to have been filed on behalf of, and prepared by, ‘Claude Larosa’ (not ‘Claudio Larosa’). The body of the affidavit commences ‘I, Claude Larosa …’. Notwithstanding the date on the first page (1 April 2013), it appears that the Larosa affidavit was affirmed on 18 May 2013. Immediately under the details of the affirmation, there is a scrawl (which might be a signature or a set of initials) next to the words ‘BEFORE ME’. Underneath these details, the words ‘Claudio Larosa’ appear in handwriting.
The body of the Larosa affidavit is in the following terms:
1.That I am a client of the Appellant in this matter and I make this affidavit from my own knowledge unless otherwise stated.
2.In the murder trial of John Glascott, I had fabricated the evidence that I gave, in which I stated that I employed John Glascott to assist my sick mother, when in fact I had employed John Glascott to assist me with a relationship problem with a girlfriend.
3.When I gave my evidence, it never occurred to me the date and time and relevance of the following events. On the 10^th July 2006, I went to John Glascott’s unit, in Sunshine Avenue Kealba, at 7pm. I knocked on his door, to which there was no answer. I then decided to ring his home number from my mobile phone, and John Glascott did not answer the call and the call was transferred to the home phone answering machine. At then I decided to see if his garage was locked, in which it wasn’t. I lifted his garage door and I happened to view John Glascott’s vehicle in his garage. I always do this if John Glascott doesn’t answer the door.
4.I then went to his neighbour’s house to enquire if they knew where John Glascott was, given the fact that he was not answering the door when I knocked or the home phone, and John Glascott’s vehicle was still at his premises.
5.His neighbour informed me, that John Glascott was loaded into an ambulance, and the neighbour assumed that John Glascott had been taken to hospital.
6.I then remained waiting fro [sic] John Glascott at his premises until 8:30 pm that night, hoping that John Glascott will return. John Glascott did not return to his premises.
7.None of these events or the times that they occurred had meant anything to me at the time, until I was made aware of how important these facts are and there [sic] relevance to justice.
8.When I was interviewed by the Victorian Police, I was in a state of shock and I now feel that this evidence may be of importance to the Court. I feel that I have a duty to present these facts to the Court, as I am in constant guilt for remaining silent all this time. That is the reason for this sworn affidavit.

The respondent objected to the whole of the Larosa affidavit on the basis that it was not in proper form: first, contrary to s 27(1) of the Oaths and Affirmations Act 2018, the jurat of the affidavit does not contain the authorised affidavit taker’s name and address, or the capacity in which the affidavit taker had authority to take the affidavit; and secondly, the affidavit does not include the words prescribed in Sch 1 of the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018, namely, ‘The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.’ The respondent also objected to para 5 of the Larosa affidavit on the basis that it contains inadmissible hearsay.

The DNA evidence

We have already summarised the evidence given by Mr Guarino at trial. His evidence was given in conformity with the contents of the first Guarino report. In summary, Mr Guarino’s evidence at trial was that the DNA evidence in relation to the Redheads matchbox was 6,400 times more likely if the applicant was one of two contributors, rather than if the DNA had originated from two unknown individuals. With respect to the 14 matches, the DNA evidence was 21 million times more likely if the contributions came from the applicant and one unknown individual rather than from two unknown individuals.
The second Guarino report referred to the first Guarino report and stated that the second Guarino report was intended to replace the first Guarino report. Under the heading, ‘Previous Statement Details’, Mr Guarino stated:
VPFSD[10] has adopted a modified DNA interpretation methodology as a result of a review of the Forensic Service Department’s DNA interpretation methodology.
Using the VPFSD modified DNA interpretation methodology I have reviewed the DNA results contained within [the first Guarino report] and reassessed the DNA evidence in light of the new methodology.
[10]Victorian Police Forensic Services Department.
In relation to the DNA found on the Redheads matchbox, in the second Guarino report this DNA was described as a partial DNA profile which either originated from the applicant or originated from another male person selected at random (contrasting from the first Guarino report which considered whether the DNA originated from the applicant and one unknown individual, on the one hand, or two unknown individuals on the other hand). The second Guarino report concluded that it was 1.4 million times more likely that the DNA on the Redheads matchbox originated from the applicant rather than from an unknown individual.
In relation to the DNA profile obtained from the 14 matches, in the second Guarino report this was again described as a mixed DNA profile. In the second Guarino report, the comparison that was undertaken was to see whether there was a match between the major components of the DNA profile. Mr Guarino then concluded that the DNA evidence was at least 15 billion times more likely if the major component of the DNA from the 14 matches originated from the applicant than if it originated from another male person selected at random.
In the first Taupin report, Ms Taupin commented upon and compared the first and second Guarino reports. She noted that the statistical values for the DNA in results from the Redheads matchbox and the 14 matches had ‘changed appreciably’ from the first Guarino report to the second Guarino report, as well as the number of contributors to the DNA on the matchbox. Ms Taupin noted that the ‘only explanation provided for such an appreciable change in results’ was the statement in the second Guarino report (extracted above) concerning the use of a ‘modified [DNA] interpretation methodology’. Ms Taupin hypothesised that the second Guarino report was a result of the publication of a review of DNA reporting practices by Victoria Police Forensic Services Division in April 2010.[11]
[11]Fraser et al, Review of DNA Reporting Practices by Victoria Police Forensic Services Division, April 2010.
In relation to the DNA result from the 14 matchsticks, in the first Taupin report, Ms Taupin said:
All of the components above the stochastic threshold in the mixed DNA profile matched the corresponding components in the DNA profile of [the applicant].
I recommend another calculation be performed on this profile as in my opinion a major contributor cannot be determined at two of the loci. It is also preferable that a re-analysis be performed on the DNA extract in order to obtain a better quality DNA profile.
The case notes did not describe any extra considerations required when interpreting the low level DNA profiles, apart from a ‘stochastic’ threshold applied. One of the loci was omitted in the mixture calculation in order to be ‘conservative’ although the nature of this was not described — I have inferred it was omitted because a major component could not be separated out.
With respect to the Redheads matchbox, Ms Taupin’s conclusion in the first Taupin report was:
In my opinion the DNA profile obtained was a poor quality, low level profile with all peaks under 250 rfu in height; that is, all peaks were below the stochastic threshold. This profile is sub-optimal. It is preferable to attempt another analysis and try to obtain a better quality DNA profile than to try and interpret a sub-optimal DNA profile.
I consider no conclusion should be drawn regarding the inclusion or exclusion of a particular individual from this profile without further considerations required for low level DNA profiles. These include understanding and conveyance of the doubt about the designation of the peaks in the profile, and consideration of further probabilistic interpretation methods in the statistical evaluation.
Ms Taupin summarised the conclusions she reached in the first Taupin report as follows:
The following are a summary of the issue [sic] that I have raised in this opinion:
• Incomplete explanation for the replacement statement.
•The partial DNA profile from the ‘REDHEADS’ matchbox is low level and special considerations and limitations apply;
•The mixed DNA profile from the 14 matches has low level components and special considerations and limitations apply;
•The major components in the mixed DNA profile from the 14 matchsticks that were above the stochastic threshold matched the corresponding components in the reference DNA profile from [the applicant].
•Contamination and transfer issues should be considered in the evaluation.
Following the service of the first Taupin report upon the respondent, the respondent obtained a report from Lisa Federle, a forensic officer employed as a senior case manager and unit leader of the DNA Interpretation and Statistics Unit within the Biological Sciences Group of the Forensic Services Department at the Victoria Police Forensic Services Centre. Ms Federle was asked to provide a response to the first Taupin report. Ms Federle reanalysed the DNA obtained from the 14 matches and the Redheads matchbox using ‘current probabilistic methodology [to address] the concerns raised by Ms Taupin regarding low level DNA’. Ms Federle said that she used the ‘approach advocated by [Ms Taupin]’.
In relation to the 14 matches, Ms Federle analysed the DNA found using two different profiling systems (Profiler Plus and PowerPlex 21). Ms Federle concluded that each analysis showed that the DNA evidence was 100 billion times more likely if the applicant was a contributor to that DNA.
In relation to the Redheads matchbox, Ms Federle performed three analyses: the first (using Profiler Plus) on the basis that there was a partial single source DNA profile; and the second and third (using Profiler Plus and PowerPlex 21 respectively) on the basis that the sample was a partial mixed DNA profile from two contributors. The result of the first test was that the DNA evidence was 29 million times more likely if the applicant was the source. With respect to the second and third tests, the DNA evidence was respectively 11 million and 8.6 million times more likely if the applicant was a contributor.
The Federle report was provided to Ms Taupin. Her response to it is contained in the second Taupin report. Ms Taupin made a number of criticisms of the Federle report. Nowhere, however, does she say that the DNA profiles could not be interpreted or that the results obtained in previous analyses are not correct. The second Taupin report concluded:
The following are a summary of the conclusions that I have discussed in this further opinion:
•More discriminatory PP21 testing kit resulted in same statistical weighting of 100 billion for sample 14-1 [the DNA sample from the 14 matches] as under Profiler Plus.
•A minimum of two contributors to sample 14-1.
•Failed controls for samples 14-1 and 16-1 [the DNA sample from the Redheads matchbox] using the Profiler Plus testing kit.
•All of the reference components of [the applicant] were represented in the mixed DNA profile of 14-1 using the PP21 testing kit except at one site on the DNA molecule.
•Analysis of sample 16-1 using PP21 produced a very partial DNA profile from about 5 cells; limited information available for any interpretation; the sample was not reanalysed for reproducibility using the same testing kit.
•Propositions in tables of Statement incomplete and statistical weighting uses vague terms without alternate propositions described.
•Closed source statistical program used for probabilistic genotyping; open source recommended internationally.
•All scientific methods have limits.
•Bounds of reliability for low level DNA profiles need to be determined and denoted by the examining laboratory.

Applicant’s contentions

In his written case, the applicant asserted that after his unsuccessful special leave application to the High Court, a number of witnesses came forth to offer exculpatory evidence on his behalf. He contended that the most important of these was Ms Dunn. The applicant relied in particular upon Ms Dunn’s description of ‘a number of occasions when burning newspapers were pushed under the back door of the practice and other attacks on [Mr] Robinson’s office’. As to the three telephone conversations Ms Dunn deposed to having with the applicant on 22 December 2000, the applicant submitted:
The recorded conversations negative a central strand of the prosecution case — namely that the applicant bore [a] smouldering resentment towards [Mr] Robinson for bungling his family law matter. Just after [Mr] Robinson’s murder, Ms Dunn offered a police officer a copy of her recorded conversation with the applicant and she was fobbed off. She was never asked to make a statement to police. Her evidence is both ‘fresh’ and ‘compelling’.
The applicant contended that the Carroll affidavits and the Stanley affidavit contained evidence that was both fresh and compelling. He submitted that when the Standley affidavit was read in conjunction with the Dunn affidavits and the Carroll affidavits, it provided a ‘compelling picture of [Mr] Robinson as a man under siege by persons other than the applicant’.
Next, the applicant contended that the Taupin reports cast ‘considerable doubt over the methodology’ used by Mr Guarino in relation to the DNA testing and results. The applicant submitted that the differences in probability recorded in the first and second Guarino reports were ‘extremely significant’. Additionally, the applicant highlighted the criticisms made by Ms Taupin of the Federle report.
In relation to the Tokarev bullets, the applicant noted that a charge in respect of their importation was ‘hived off from the murder charge and struck out in the Melbourne Magistrates’ Court’. The applicant then observed that the murder weapon was never found, before saying that the murder weapon ‘may have been a Tokarev pistol or it may have been a Mauser pistol’.
The applicant submitted that the Larosa affidavit was fresh and compelling evidence. He submitted that, given the circumstances in which the Larosa affidavit was made, ‘Larosa’s evidence is reliable, substantial and highly probative of the issue of the applicant’s opportunity to commit the murder’.
The applicant’s written case concluded:
The applicant has set out his version of events in his affidavit. He was never given the opportunity at trial [sic]. The evidence he adduces is both ‘fresh’ and, when read in conjunction with the other affidavits, ‘compelling’.
It is submitted that the affidavits of Carole Dunn, Maria Carroll and Rosalie Standley demonstrate that the applicant did not receive a fair trial because highly probative evidence was not put before the jury. Accordingly, it was [scil, is] in the interests of justice to consider that evidence on an appeal.

Respondent’s contentions

The respondent contended that none of the material relied upon by the applicant met the statutory threshold of being fresh and compelling.
In relation to the Taupin reports, the respondent submitted that the criticisms made by Ms Taupin of the quality of the DNA profiles obtained and of the general limitations of DNA evidence could have been adduced at trial in response to Mr Guarino’s evidence. Further, notwithstanding the contents of her reports, Ms Taupin did not say that any of the DNA results were not valid or should not have been interpreted. Additionally, the respondent submitted that the first and second Taupin reports did not detract from Mr Guarino’s evidence at trial, before contending that:
Ms Taupin’s views regarding the re-analysed DNA profile from the 14 matches [was] supportive of the general tenor of Mr Guarino’s evidence at trial — namely, that the findings provided extremely strong support for the proposition that the mixture of DNA detected on the 14 matches originated as a result of contributions from the applicant and one unknown individual selected at random from the Australian Caucasian population. That being so, the Taupin reports cannot be considered ‘substantial’, in the sense of being of real significance or importance with respect to the matters they are tendered to prove.
In relation to the Larosa affidavit, in addition to submitting that the affidavit was not in proper form, the respondent objected to its receipt as evidence in the absence of Mr Larosa being made available to give evidence. On the assumption that the affidavit was received, the respondent made the following points:
(1)The statement by the neighbour that the applicant had been loaded into an ambulance, and possibly taken to hospital, is inadmissible hearsay. Even if this evidence was admissible, it was not fresh. The applicant would have been well aware at trial whether or not he was in hospital on the evening of 10 July 2006, and could have adduced that evidence at trial. In any event, the statement about the ambulance in the Larosa affidavit is not credible when regard is had to all of the evidence.
(2)Mr Larosa’s evidence of seeing the applicant’s car at his home at around 7:00pm on 10 July 2006 is also not credible — it being contradicted by Ms Addamo’s contemporaneous report to 000 of seeing the applicant’s car, identified by its registration number, on Station Street at that time.
(3)The account in the Larosa affidavit is inherently improbable. First, no explanation is provided for how it is that Mr Larosa recollected his movements on 10 July 2006 some seven years later in an affidavit purported to have been affirmed in 2013 — particularly when Mr Larosa gave evidence at trial that there was ‘nothing unusual about this particular date [10 July 2006], or this particular evening’. Secondly, no detail is given as to how Mr Larosa was made aware of the importance of the facts set out in the Larosa affidavit. Thirdly, there is no explanation in the Larosa affidavit as to why Mr Larosa waited around at the applicant’s premises for more than one and a half hours after it was apparent that the applicant was not there.
In relation to the Dunn affidavits, the respondent submitted that much of the material contained in them was inadmissible hearsay or opinion. The respondent criticised the first Dunn affidavit in relation to a number of statements that were submitted to be too general and/or too imprecise. Additionally, the respondent submitted that the evidence in the Dunn affidavits was not fresh. In substance, the material sought to be relied upon in the Dunn affidavits was the subject of statements made to the police by Mrs Robinson and a solicitor at Mr Robinson’s practice, Melissa Falcone. For example, in Ms Falcone’s statement dated 12 July 2006, the following matters were included:
Mr Robinson’s business had gone bankrupt in 2003 and had been taken over by Beaumont & Christiansen.
Prior to Mr Robinson’s death, he was having a lot of trouble in relation to a property project in Tasmania and his client “might hold him accountable if it didn’t go through”.
Prior to going bankrupt, Mr Robinson was involved in the purchase of an olive grove with a male named Steve Matterson. Prior to Mr Robinson’s death, he and Mr Matterson were “still involved in resolving the olive grove issue”.
Mr Robinson received a letter from a person who Ms Falcone believed to be a former client, “the letter was aggressive and deranged and related to a matter that David had previously handled”.
Around five weeks prior to Mr Robinson’s death, Ms Falcone noticed a black mark on the strip of vinyl that runs from the inside of the back door to the kitchen, and ash and bits of newspaper on the floor. The newspaper had been set on fire causing damage to the vinyl. The incident was not reported to police and Mr Robinson did not seem surprised by it.
The respondent submitted that it was open to the applicant to adduce evidence about the matters contained within the Dunn affidavits by requesting that Ms Falcone be called to give evidence at trial, cross-examining Mrs Robinson about these matters, and/or making his own inquiries and calling his own witnesses. Thus, the respondent submitted, this was evidence that could have been adduced at trial with the exercise of reasonable diligence.
With respect to Ms Dunn’s file note of her telephone conversations with the applicant on 22 December 2000, the respondent submitted that the file note, rather than undermining the prosecution case at trial, supported it — recording, as it did:
•‘I want to punish him [Mr Robinson] for what he did for my house’.
•‘David is a bastard’.
•‘My relationship with David is nil. I was just toying with him because he cost me my house … I want to punish him’.
Next, the respondent submitted that the Carroll affidavits suffered from the same deficiencies as the Dunn affidavits. The respondent contended that its submissions with respect to the Dunn affidavits applied equally to the Carroll affidavits and, for those reasons, the Carroll affidavits were neither fresh nor compelling. The respondent made like submissions in respect of the Standley affidavit. In addition to submitting that the evidence in the Standley affidavit was not fresh, the respondent contended that, even if Ms Standley’s evidence about seeing bullet holes three years before Mr Robinson’s murder was admitted, such evidence could not be considered to be ‘substantial’, ‘highly probative’, or such that ‘it would have eliminated or substantially weakened the prosecution case if it had been presented at trial’.[12]
[12]See s 326C(3)(b) of the Criminal Procedure Act.
Finally, the respondent submitted that even if the evidence sought to be relied upon by the applicant was admitted, it would not answer the ten strands of the Crown case relied upon at trial. The respondent contended that, when viewed in combination with the evidence given at trial, the matters sought to be relied upon by the applicant as ‘fresh and compelling evidence’ do not demonstrate that there has been a substantial miscarriage of justice.[13]
[13]See s 326D of the Criminal Procedure Act.

Analysis

In order to be granted leave to appeal under s 326A of the Criminal Procedure Act, the applicant must show that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. The evidence which the applicant asserts is fresh and compelling within the meaning of s 326C of the Act is set out in the eight affidavits filed on behalf of the applicant identified at [34] above. In our view, however, the material contained in those affidavits does not disclose the existence of fresh and compelling evidence within the meaning of the statutory provision. Our reasons follow.
The new DNA evidence (constituted by the Taupin reports) is not fresh and compelling. It has not been shown to be fresh because there is nothing in the new evidence relied upon by the applicant which suggests that the material in the Taupin reports could not, with the exercise of reasonable diligence, have been adduced at trial. The evidence has not been shown to be compelling because it is not substantial. While Ms Taupin makes various comments and criticisms about the DNA evidence given at trial, nowhere does she say that the DNA results (either tendered at trial or found subsequently after further analysis) were wrong or could not be relied upon. Additionally, we are unable to conclude that the Taupin reports were highly probative in the context of the issues in dispute at trial, or that they would have eliminated or substantially weakened the prosecution case if they had been presented at trial.[14]
[14]See s 326C(3)(b)(iii) of the Criminal Procedure Act.
Next, the Larosa affidavit is not compelling because the evidence in it is not credible. The applicant contended in this Court that the Larosa affidavit supported the fact that he had been taken to hospital on the afternoon of 10 July 2006, and therefore could not have shot the deceased. Even if accepted, this evidence could not be fresh; if the applicant was in hospital at the time of the shooting, then this was a matter he would have known at the time, and a matter which could have been adduced at trial. It is noteworthy that, despite the applicant’s assertions that he had been taken to hospital on 10 July 2006, no attempt has ever been made to identify the hospital or adduce a relevant hospital record.
Insofar as the applicant relied on the Larosa affidavit to establish that his car could not have been present in Station Street at 7:00 pm as observed by Ms Addamo, this evidence is not credible. Ms Addamo correctly described the applicant’s car and gave its registration number at the time she observed it and called 000. The account in the Larosa affidavit is inherently improbable. Additionally, there is nothing in the Larosa affidavit which explains how Mr Larosa could have such a detailed recollection of the events of 10 July 2006 — as compared to those events (if true) having occurred on some other date — when he came to affirm his affidavit some years later in 2013.
Turning to the material in the Dunn, Carroll and Standley affidavits, while these affidavits contain a level of detail, much of it is vague and imprecise. The material is designed to show that there were others who may have borne grudges against Mr Robinson sufficient to motivate them to attempt to damage or destroy his premises, or do him physical harm. The material is, however, not fresh. Having regard to the material in the depositions (including statements made by Mrs Robinson and Ms Falcone), there is no reason why, with the exercise of reasonable diligence, evidence of the existence of other people who had disputes with Mr Robinson and/or may have grudges against him, could not (subject to being admissible) have been adduced at trial.
Additionally, we are not persuaded that the material in the Dunn, Carroll and Standley affidavits is substantial. Proving that various people may have had disputes with the deceased, without seeking to establish whether any of such people had any relevant opportunity on the day in question to commit the offence charged, or that they had antecedents which suggested that they were realistically possible suspects, did not assist in proving that the material in the Dunn, Carroll and Standley affidavits was substantial as opposed to being purely speculative. Similarly, and for the same reasons, we are not persuaded that the evidence in these affidavits is either probative in the context of the issues in dispute at trial, or that this material would have eliminated or substantially weakened the prosecution case if it had been presented at trial.[15]
[15]Ibid.
The case against the applicant at trial was a strong one. As was said in the First Appeal Reasons, ‘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’.[16] The material sought to be relied upon as fresh and compelling evidence (considered either individually or collectively) does not detract in any material way from the strength of the Crown case as originally presented. Moreover, even if the evidence could satisfy the statutory test of being ‘fresh and compelling’, we are not persuaded that there is any basis upon which it could be concluded that there has been a substantial miscarriage of justice.[17]
[16]First Appeal Reasons, [117].
[17]See s 326D of the Criminal Procedure Act.
It remains to deal with one further aspect of this proceeding. During the course of oral argument, the applicant took over the presentation of his case from counsel. The applicant then made a number of submissions concerning the way his trial was conducted; what he asserted was the incompetence of his trial counsel demonstrated, in part, by his failure to call the applicant himself to give evidence;[18] the alleged misconduct of the prosecutor; errors allegedly made by the trial judge and this Court as constituted on his first application for leave to appeal; claimed deficiencies and inconsistencies in the evidence and the trial judge’s rulings; and allegations of perjury made in respect of five (or possibly more) Crown witnesses.[19] Many of the arguments the applicant put to us were arguments that were put in his first application for leave to appeal and rejected in the First Appeal Reasons. The others were arguments that, if not put, could have been put at that time and did not arise from the subsequent discovery of any fresh evidence.
[18]Not counsel who appeared in this Court.
[19]For completeness, we note that apart from the passage in the Larosa affidavit that refers to ‘fabricated evidence’ on a topic not material to this application, there was no evidentiary material tendered in this Court that was supportive of any of the applicant’s allegations that evidence given at his trial was perjured.
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.
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[2022] VSCA 158

10 August 2022