R v Glasby

Case [2000] NSWCCA 83

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     Regina v Glasby [2000]  NSWCCA 83

FILE NUMBER(S):
60323/98

HEARING DATE(S):           27 October 1999

JUDGMENT DATE:            22/06/2000

PARTIES:
Regina v Garry Zane Glasby

JUDGMENT OF:      Stein JA Hulme J Greg James J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):        SC 70201/96

LOWER COURT JUDICIAL OFFICER:     Sully J

COUNSEL:
J C Papayanni (Appellant)
M Grogan (Respondent)

SOLICITORS:
Jeffreys & Associates (Appellant)
S E O'Connor (Respondent)

CATCHWORDS:
MURDER - appeal on conviction - compellability of spouse - statutory interpretation - common law presumptions - s 18 Evidence Act 1995 - s 407 Crimes Act 1900 - whether jury misdirected - representations of what accused told witness not evidence of truth of those representations - Lee v The Queen - s 6 Criminal Appeal Act 1912 - whether accused denied fair chance of aquittal - 'accepting' the accused's evidence - failure to discharge jury
MURDER - appeal on sentence - maximum sentence - worst category - parity of sentencing

LEGISLATION CITED:
Crimes Act 1900, s 407
Criminal Appeal Act 1912, s 6(1)
Evidence Act 1995, ss 18, 38, 60
Interpretation Act 1987, s 30

DECISION:
Appeal on conviction dismissed
Leave to appeal against sentence granted
Appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF            

CRIMINAL APPEAL

No.      60323/98

STEIN JA

HULME J
Greg JAMES J

Thursday, 22 June 2000

REGINA v Garry Zane GLASBY

Background

The appellant Garry Zane Glasby was convicted on a charge of murdering John Albert Thiessl on 6 November 1994.  He was found guilty in the Supreme Court on 11 June 1998 and was sentenced to penal servitude for life.  The appellant appeals against conviction and sentence.

Appeal on conviction

The appellant’s wife Mrs Glasby was arrested for the murder on the same day as the appellant.  She gave sworn evidence at her own sentencing, and was called by the Crown in the appellant’s trial.

The grounds of appeal relate to the circumstances in which Mrs Glasby came to give evidence generally and particularly her evidence of what the appellant had said to her, and the admissibility of particular matters the appellant told her.

Held by the Court:

1.His Honour did not err in requiring Mrs Glasby to give evidence against her wishes: s 18 Evidence Act 1995 applied. Neither s 407 Crimes Act 1900 nor the common law conferred any enforceable right on the appellant. The statutory scheme makes express provision for the compellability of spouses and there is no room to read down that clear meaning.

2.His Honour was entitled to grant leave to the Crown to cross-examine Mrs Glasby under s 38(1)(a) and (c) Evidence Act. It was a discretionary decision which was not shown to have been miscarried.

3.His Honour was in error in not directing the jury that Mrs Glasby’s evidence at her sentencing, insofar as it concerned representations of what she said the appellant had said to her, was not evidence of the truth of those statements, Lee v The Queen (1998) 195…

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AGLC
R v Glasby [2000] NSWCCA 83
Case
[2000] NSWCCA 83
Decision Date

CaseChat Overview and Summary

The case of R v Glasby involved the appellant, who was convicted of murder and subsequently appealed both his conviction and sentence. The primary dispute centred around the compellability of the appellant's spouse as a witness, the admissibility of her prior inconsistent statements, and the fairness of the sentence imposed. The appeal was heard by the court, which was tasked with determining whether the trial judge's decisions were correct and whether the appellant had been denied a fair trial.

The legal issues that arose in this case were multifaceted. The court had to consider whether the trial judge erred in ruling that the appellant's spouse was a compellable witness under the Evidence Act 1995. Additionally, the court examined whether the trial judge misdirected the jury regarding the nature of the spouse's prior inconsistent statements, specifically whether these statements should have been treated as evidence of the truth of the appellant's alleged admissions or merely as statements attributed to him by the witness. Another issue was whether the trial judge failed to properly consider the principles of parity in sentencing when determining the appropriate punishment for the appellant.

The court found that the trial judge correctly exercised his discretion in ruling that the spouse was compellable and in allowing the cross-examination of her regarding her prior inconsistent statements. The judge's decision not to exclude her evidence under s 137 of the Evidence Act was also upheld. Regarding the spouse's testimony about statements attributed to the appellant, the court determined that while the trial judge should have directed the jury on the limited relevance of these statements, any error did not result in a miscarriage of justice. The court further held that the sentence imposed was not manifestly excessive and was within the parameters of what the law permitted.

In summary, the appeal against conviction was dismissed, and the sentence was affirmed. The court upheld the trial judge's decisions on the compellability of the spouse, the admissibility of prior inconsistent statements, and the appropriateness of the sentence. The appellant's contentions did not succeed in demonstrating that he had been denied a fair trial or that the sentence was unjust.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In our view, his Honour was entitled to grant leave under s 38(1)(a) and (c). Once in the gateway of (a) and (c), it was a discretionary decision which has not been shown to have miscarried. Indeed, it may be noted that counsel for the appellant, although not expressly abandoning the ground, made no written submission in support of it and barely mentioned it in his oral address to the court.Grounds 4, 5 and 6 - Mrs Glasby’s evidence at the trial On 7 April 1998 the Crown called Mrs Glasby. In the absence of the jury she indicated that she did not want to give evidence. If she gave evidence, some harm would occur to her, the accused, and their child. She said that she had lied in her case (when she gave evidence on her sentencing) and that the accused did not shoot the victim. The Crown Prosecutor submitted that she was a compellable witness under s 18 of the Evidence Act and later sought leave to cross-examine her pursuant to s 38 of the Act in relation to prior inconsistent statements should she be compellable. Sully J ruled that Mrs Glasby was a compellable witness. (This is the subject of grounds 1 and 2 dealt with above). His Honour then ruled that he should not exclude her evidence in the exercise of his discretion under s 137 of the Evidence Act. Mrs Glasby returned to the witness box on the next day. She gave evidence that the accused did not kill John Theissl. She said that she knew who did, but refused to name that person. She said that she drove the killer to meet the victim. She said that while she knew Carmela Theissl, the accused did not. She said that the names ‘Steve’ and ‘Kayla’ meant nothing to her. At a certain point in Mrs Glasby’s examination, the prosecutor sought leave to cross-examine her under s 38. His Honour granted leave under s 38(1)(a) and (c). (This is the subject of ground 3 dealt with earlier). The prosecutor then cross-examined Mrs Glasby about the evidence that she had given on 20 October 1997 at her sentencing. The questions that she had then been asked and the answers that she had made, were put to her. She agreed that she had given those answers but said that they were all lies. The evidence which Mrs Glasby gave on 20 October 1997 was very detailed. It gave chapter and verse of her participation in the murder by the appellant of Mr Theissl and of her part in it. It consisted of statements by her of what she had seen, done and heard. It also included statements of what she said the appellant had said to her. The evidence of what Mrs Glasby had said at her sentencing, which became known as version 2, was left to the jury. The summing-up did not distinguish between those parts of the evidence which concerned what Mrs Glasby said that she did, saw or heard and those parts which were, according to Mrs Glasby, representations made by the appellant to her. Counsel for the appellant submits that those answers which dealt with statements by the appellant to Mrs Glasby should have been excluded or, if admitted, his Honour should have clearly directed the jury that they were not evidence of the truth of the statements but only as to the fact that they were, according to Mrs Glasby, said to her by the appellant. If the representations of what Mrs Glasby said was said to her by the appellant went only to her credit, the jury should have been so directed.

Decision

Reasons for decision

HULME J

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Ratio Decidendi

Legal Principle Established

Established by: HULME J

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