R v Glasby - [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 CLR 594 applied. The admission of those representations and the failure to direct the jury that the representations were not to be taken as the truth of the facts, was not a fundamental miscarriage of justice. The error did not deny the appellant a real chance of acquittal. Proviso to s 6(1) of the Criminal Appeal Act 1912 applied.

4.Reading the summing-up as a whole, it is impossible to see how the jury could have been under any misapprehension about who had the onus of proof.

5. The submission that his Honour should have discharged the jury is rejected.
Appeal on sentence
The sentence is attacked on the grounds that the trial judge erred in finding that the case was one of the worst examples of the crime of murder, and on the basis of lack of parity with the sentence imposed on Mrs Glasby.
Held by the Court:
1.It was open to his Honour to conclude that the appellant’s culpability was such as to call for the imposition of the maximum sentence. That does not mean that this is the worst case or there are not other cases which are of greater heinousness, Veen v The Queen (No 2) (1988) 164 CLR 465 applied.

Held by Stein JA and Greg James J:
2.As between the appellant and his wife, the objective gravity and subjective circumstances were quite diverse. Mrs Glasby pleaded guilty, albeit belatedly, and her part in the murder was far less significant. The culpability of the appellant is far higher than Mrs Glasby.

Orders:
Appeal on conviction dismissed. Leave to appeal on sentence granted. Appeal on sentence dismissed.
OoO
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
JUDGMENT

THE COURT:
Introduction
The appellant, Garry Zane Glasby was indicted before Sully J on a charge that on 6 November 1994 he did murder John Albert Theissl. He pleaded not guilty and was tried before his Honour and a jury of twelve. On 24 April 1998 the jury returned a verdict of guilty. The appellant was sentenced on 11 June 1998 to penal servitude for life.
The Grounds of Appeal
The notice of grounds of appeal run to 12 grounds and the appellant also appeals on sentence. Three grounds of appeal have been abandoned by Mr Papayanni, counsel for the appellant, viz 7, 10 and 11. The remaining grounds may be summarised as follows:
1.That his Honour erred in requiring Suzette Louise Glasby, the appellant’s wife, to give evidence contrary to her wishes - s 18 Evidence Act 1995.
2.(a)      that his Honour erred in requiring Mrs Glasby to give evidence of communications between herself and the appellant.
(b)      that his Honour, in requiring Mrs Glasby to give evidence, failed to take into consideration that the appellant had a reasonable expectation that his wife was not a compellable witness.
3.That his Honour erred in giving leave to the Crown to cross-examine Mrs Glasby under s 38(1)(a) and (c) of the Evidence Act 1995.
4.Alternatively, to grounds 1, 2 and 3, his Honour erred in not restricting the cross-examination of Mrs Glasby to what she saw or heard, contrary to Lee v The Queen (1998) 195 CLR 594 decided by the High Court after the trial.
5.That his Honour misdirected, or failed to direct, the jury that Mrs Glasby’s previous evidence on oath (in her trial) was not evidence of the facts, contrary to Lee.
6.His Honour misdirected, or failed to direct, the jury as to versions 1 and 2 of the evidence of Mrs Glasby.
8.His Honour misdirected, or failed to direct, the jury as to the appellant’s evidence being ‘accepted’.
9.             His Honour erred in failing to discharge the jury.
12.      The verdict was unsafe and unsatisfactory.
The Crown Case at trial
The Crown case was that at about 5.45 am on 7 November 1994 the body of the deceased was found slumped on the floor between the front passenger seat and dashboard of a Range Rover motor vehicle. The vehicle was in a parking area overlooking Lake Gillawarna, adjacent to Henry Lawson Drive, Georges Hall. A fired .22 calibre cartridge case was found on the driver’s side of the front floor of the vehicle. Three .22 calibre long rifle cartridges were found on the ground outside the vehicle. Also found in the vehicle and around the wound to the deceased’s head were tufts of cotton wool. A post mortem examination revealed that the cause of death was a gunshot wound to the right side of the deceased’s head. The time of death was estimated to have been between midnight on 6 November and 5 am on 7 November 1994.
The Crown alleged that the murder was committed at the instigation of the deceased’s wife, Carmela Theissl, and that the appellant had contracted with her to murder the deceased in consideration of the payment of a large sum of money. The Crown alleged that the appellant and his wife, Mrs Glasby, had both been involved in the murder, the appellant as principal in the first degree having actually done the killing and Mrs Glasby as a principal in the second degree having been present at the time and place of the killing.
A number of weeks prior to her husband’s death, Mrs Theissl told a relative that she wanted to leave her husband and was moving out of the family home. On 17 October 1994 police had attended the Theissl family home in relation to a domestic dispute between the deceased and his wife. As a result, police had obtained an Apprehended Violence Order against the deceased.
Following the discovery of the deceased’s body police interviewed the deceased’s wife. She informed them that the deceased had been a member of a Swinging (wife swapping) Club. A search of the deceased’s home uncovered items relating to such activities. A witness, Mr Gomez, gave evidence that he had met the deceased and Carmela Theissl at a swinging party and that Mrs Theissl had been a reluctant participant. It was the Crown case that the deceased was lured to a meeting with the appellant using the promise of a sexual liaison with Mrs Glasby as the bait.
A search of the deceased’s clothing and personal effects revealed a notebook entry which read ‘Kaila, 8.30, 10 Glassop Street, Bankstown’ and a second note on a piece of paper which read, ‘Steve & Kayla, 9.30 at Villawood Station, 726 0105’. The telephone number on the note was for a telephone service connected to premises occupied by the appellant and Mrs Glasby. Records of telephone calls made from a mobile service in the name of Carmela Theissl revealed a number of calls to the Glasby number, 726 0105, between 22 October and 15 November 1994.
During 1994 an inquiry pursuant to s 474 of the Crimes Act 1900, in relation to the conviction of Kevin Gallagher for the murder of Edward James Lloyd within the Parramatta Gaol on 18 September 1981, was commenced before James J. Mr Paul Blacket of Counsel was appointed to assist his Honour and Detective Stinson was appointed to work under the direction of Mr Blacket. During the course of that inquiry a statement dated 3 November 1994 was made by the appellant. As a result of that statement Mr Blacket requested that Gallagher’s solicitor arrange for the appellant to contact him. On 10 November 1994 the appellant telephoned Mr Blacket. During the conversation the appellant told Mr Blacket that he feared Gallagher and that he was concerned that Gallagher was going to ‘set him up’. He also mentioned the name John Theissl and a .22 calibre rifle.
On 13 November 1994 Mr Blacket and Detective Stinson visited the appellant. The appellant told Mr Blacket that Gallagher had threatened to implicate him in the murder of Theissl if he did not co-operate with Gallagher by giving evidence at the inquiry. Detective Stinson asked the appellant what he knew about the Theissl murder. The appellant said that two days before Theissl was killed, he was at Gallagher’s house and that Gallagher had asked him, and a person named Arthur Loveday, if they were interested in doing a job with him, a contract job. The appellant said that he could not remember if Gallagher actually said that he wanted them to ‘knock a bloke’, but that was what he took it to mean. The appellant said that he and Loveday both said that they were not interested. Gallagher did not mention who was to be killed on the job. Detective Stinson asked the appellant why he thought the conversation had anything to do with the Theissl murder and the appellant replied, ‘Because he asked us to do the job and two days later I bought a paper and read about the murder. I’ve still got the paper, it’s there’. The appellant then retrieved a newspaper opened at an article on the killing of Theissl. The appellant told Detective Stinson that when he read the article he ‘freaked out’ and thought, ‘maybe I’d been set up for it’. Detective Stinson asked the appellant why Gallagher would want to set him up and the appellant replied, ‘I don’t know, he just told me he could have done it if I gave him any trouble’.
On 28 November 1994 police undertaking surveillance of Mrs Theissl observed her meeting with the appellant at a shopping centre near her home. On 13 December 1994 two listening devices were installed in the appellant and Mrs Glasby’s mobile home. On 16 December telephone intercepts were placed on Mrs Theissl’s home and mobile telephone services. On that same day a conversation between the appellant and Mrs Glasby was recorded which, the Crown contended, related to a complaint that they had still not been paid by Mrs Theissl after 7 weeks. On 17 December the appellant was recorded talking to an unknown male and describing how he had killed a man. It was the Crown case that the appellant was talking about having killed Theissl. The appellant admitted in his evidence that this was the purport of the conversation but explained that it was drunken bragging to impress.
On 19 December 1994 detectives visited the appellant at his home and spoke to him about the Gallagher inquiry and the murder of Theissl. After the police left the appellant said to Mrs Glasby, ‘Hey, they kept fuckin trying to nail it down, as if I knew Carmela, right, before fuckin all this shit went down’. The appellant and Mrs Glasby were then observed leaving the premises, driving to a convenience store and then to a telephone booth where the appellant was seen holding the handpiece to his head.
On 22 December 1994 police attended the Glasby’s home and spoke to Mrs Glasby. After the police left Mrs Glasby and the appellant discussed the need to speak to Mrs Theissl. Telephone intercepts on Mrs Theissl’s mobile phone recorded arrangements being made between the appellant and Mrs Theissl to meet at David Jones at Parramatta later that day. Police observed the meeting taking place as planned.
Later on 22 December 1994 Mrs Theissl was arrested for the murder of her husband. During the early hours of 23 December the appellant and Mrs Glasby were also arrested for the murder. During a search of the appellant’s premises, a note addressed to ‘Carmella’ was found on a coffee table in the lounge area.
Mrs Glasby was called to give evidence in the Crown case. She said that she knew who killed John Theissl, that it was the not the appellant, but that she was not prepared to name the person who had carried out the murder. She said that she played a part in the killing of Theissl. On the night of the murder she went to the person’s house at an address which she refused to name. She understood that the person, a man, wanted her to go to his place because he had arranged to take out a contract on Theissl. She drove the man back to her home. The man talked to her and she knew what was going on. She refused to say what was mentioned in the car but said that she believed it concerned Theissl. When they reached her place the man got out of the car and left.
Pursuant to the provisions of s 38 of the Evidence Act the Crown was granted leave to cross-examine Suzette Glasby. This is the subject of ground 3 in the Notice of Appeal.
Following her arrest Mrs Glasby participated in an ERISP interview in which she denied any involvement by either herself or the appellant in the murder of Theissl. After some excerpts of listening device recordings were played during the course of the interview Mrs Glasby indicated that she wished to terminate the interview. She was then taken to the dock area and allowed to speak to the appellant, after which she said that she wished to be reinterviewed and to tell the truth about the matter.
During the second interview Mrs Glasby told the police that Mrs Theissl told the appellant that she and her children had been maltreated by John Theissl. She said that Carmela Theissl asked the appellant to carry out the contract killing of the deceased in return for the payment of $50,000. Mrs Glasby told the police how she and the appellant, using the aliases Kayla and Steve, had lured the deceased to his death by pretending that she would be made available to him for sexual gratification. She described having seen the murder weapon under the matrimonial bed a couple of days prior to the murder and having taken that weapon to a place and handing it to the appellant in anticipation of him using it to murder the deceased. She told how, later, the appellant described to her how he had shot the deceased. She described how she had disposed of the weapon and of the clothing worn by the appellant by throwing them into the Prospect Creek.
Mrs Glasby stood trial for the murder of John Theissl. On the second day of her trial she pleaded guilty. Sentence proceedings took place on 20 October 1997 and on that day she gave sworn evidence. In that evidence she said that about two weeks prior to the killing the appellant asked her to drive him to the car park of McDonald’s at Villawood. She did so and saw him meet Mrs Theissl. He returned to the car with $2,000 which Mrs Theissl had given him. The appellant told her that Carmela Theissl had offered him $40,000 to kill her husband because he had been molesting their children. The appellant told her that he did not want to kill Theissl but was going to take advantage of the situation by trying to extort more money from him.
About a week later she drove the appellant to a second meeting with Mrs Theissl at shopping centre carpark near where she lived at Northmead. Mrs Theissl gave the appellant a gun and some ammunition to be used in the killing, as well as a telephone number. During the week prior to the murder, the appellant told Mrs Glasby that he had arranged to meet the deceased at Villawood Station on the Thursday night and that she was to be used as bait, in effect, to lure the victim there. As planned, she drove the appellant to Villawood to near where Theissl was waiting. However, she refused to leave the vehicle. She and the appellant argued and they drove off without having made contact with Theissl.
A further arrangement was made between the appellant and Theissl. Again, they were to meet at Villawood and again she was to be used as sexual bait. On this occasion the appellant made contact with Theissl. The appellant got into the victim’s vehicle and Mrs Glasby followed them in her vehicle. At one stage the victim’s vehicle stopped, the appellant alighted, returned to Mrs Glasby’s vehicle and retrieved a bag containing the gun. The appellant returned to the victim’s vehicle; got into the driver’s seat, the victim having moved into the passenger’s seat; and drove off at high speed, Mrs Glasby following in her car.
The appellant drove to the carpark at Lake Gillawarna. Mrs Glasby parked nearby. She saw the appellant walk from the driver’s side to the passenger’s side of the vehicle. The appellant had the gun in his hand and was shaking it. He pointed the gun into the window of the vehicle and fired. She saw the appellant wiping the door of the vehicle. He returned to the car and she drove him to a cul-de-sac near the Georges River. The appellant removed his clothes and put them and the gun into a bag. He got out of the car, weighted the bag with rocks and threw it into the river. She drove the appellant to Carramar where he got something to eat. Then she drove him to a phone booth where he telephoned Carmela Theissl.
The appellant’s case at trial
At the trial the appellant gave evidence and was cross-examined. He said that he did not kill John Theissl. Around the time of the death of Theissl he was in regular contact with Gallagher. He and Gallagher had stolen some marijuana plants which they had stored at Gallagher’s premises. Some time later Gallagher told him that the plants had been stolen from his house. He came to believe that Carmela Theissl and a man named Martin had taken the plants.
About two days prior to the killing of Theissl, he was present at Gallagher’s house when there was a discussion concerning the killing of Theissl. Gallagher asked if he or Mr Loveday would do the killing. They each said, ‘No’. After the murder Gallagher came to his home and said that Theissl was dead.

On 10 November 1994 the appellant spoke to Mr Blacket on the telephone. He agreed generally with the account of that conversation given by Mr Blacket during his evidence. Prior to that time Gallagher had approached him in relation to the Lloyd Inquiry and asked him to provide a statement which was false. By the time he spoke to Mr Blacket on 10 November he had decided not to give an account before the Inquiry which was consistent with the false statement. He told Mr Blacket of his fears relating to Gallagher and of the fear that he might be set up in some way by Gallagher. At one time Gallagher had, unbeknown to him, taken one of his kitchen knives. Later Gallagher had returned the knife and said to him, ‘Well that was just for a bit of insurance’. On 13 November the appellant was visited by Mr Blacket and Detective Stinson.
The appellant said that he had never met John Theissl. He had no knowledge of any arrangements made with Theissl relating to persons named Steve or Kayla, nor did he have any knowledge of how his telephone number came to be found on the deceased’s body. Prior to Theissl’s death, the appellant was aware that Carmela Theissl dealt in stolen goods and that she was involved in drugs with Gallagher and Gallagher’s wife. His wife, Suzette Glasby, was a friend of Carmela Theissl.
After the murder of John Theissl the appellant had dealings with Carmela Theissl in relation to the stolen marijuana plants. He and Mrs Glasby met her at Parramatta. On that occasion Mrs Theissl expressed fears to him about a car she had seen driving up and down her street and about a watermelon which had been left on her doorstep. On another occasion she and her mother visited him at home and they discussed the money that was owed in relation to the marijuana plants. The appellant said that the telephone calls made from Carmela Theissl’s phone to his telephone service were calls made to Mrs Glasby.
In relation to the taped conversation recorded on exhibit AA excerpt 1, the appellant said that the conversation related to money owed to him by Carmela Theissl for the marijuana plants and for some unlawfully obtained perfume which he and Mrs Glasby had given to her. In relation to the conversation recorded on exhibit AA excerpt 2, the appellant said that at that time he and the other male, whose name was Sean, had been drinking, and that he had been trying to big-note himself by boasting that he had killed Carmela Theissl’s husband. In relation to exhibit AA excerpt 4, the appellant said that the conversation related to Carmela Theissl, that she had told Mrs Glasby to say that they met at Westmead Hospital rather than through their dealings in relation to stolen perfume. The appellant said that the note addressed to ‘Carmela’ which was found in his home had been written by Mrs Glasby.
Grounds 1 and 2 - Compellability of Mrs Glasby
Grounds of appeal 1 and 2 raise the circumstances in which Mrs Glasby came to give evidence generally and particularly her evidence of what the appellant had said to her. The questions raised by other grounds as to the admissibility of particular matters the appellant told her is discussed later.
The Crown Prosecutor sought to call Mrs Glasby to give the evidence she had given on her guilty plea of the circumstances of the killing, preliminary discussions with her husband and the note containing the names Steve and Kayla.
When Mrs Glasby was called, and upon his Honour giving her the necessary explanation to enable him to ascertain whether there was an objection or whether he was satisfied of her awareness of the relevant matters under s 18 of the Evidence Act, she objected and indicated a desire to refuse to give evidence entirely. She contended that she had lied in her own case and that the appellant had not shot the deceased. However, the Crown Prosecutor wished her to be called, referring to the evidence that she had given on her plea before his Honour, which was plainly inconsistent with the basis asserted for the refusal. The Crown submitted that she was a compellable witness and referred to the expectation that her evidence would be in accordance with the evidence she had previously given.
Counsel for the accused having confirmed that notices had been served under s 38 of the Act, the Crown Prosecutor referred to the availability, if necessary, of the procedure under that section.
Defence counsel drew his Honour’s attention to the substance and importance of the evidence and the weight likely to be attached to it. She submitted that the evidence in those circumstances might not meet the tests under s 18(7), particularly in the event that the procedure under s 38 had to be resorted to.
His Honour was provided with assistance on behalf of the witness by Mr Allen from the Legal Aid Commission and, during the luncheon adjournment, Mr Allen obtained instructions from Mrs Glasby concerning the particular state of her relationship with the accused.
Mr Allen raised the possible necessity for a certificate against self incrimination under s 128 of the Evidence Act and that Mrs Glasby had certain fears in relation to herself, the accused and her child. A voir dire was then undertaken in accordance with s 189 of the Act on the issue of what harm might be occasioned to the relationship, see s 18(6); R v Gulam Mohammad Khan (Supreme Court, 22 November 1995, unreported). Mrs Glasby said that she was not prepared to give truthful evidence because she would not put her husband, her daughter and herself in danger.
Later, she said that if she gave truthful evidence, ie. evidence which she said was the truth in these proceedings, then that would not harm the relationship between her and her husband but might evoke some threats to them all. She expressed the view that she was not concerned if, should she give evidence, she was confronted by differing evidence upon the same topic which she had given on a prior occasion. Mrs Glasby refused to name to the court the source of the threats.

His Honour concluded that he was not satisfied that there was a likelihood that harm might be caused to the relationship and thus the criterion under s 18(6), which would prevent her being required to give the evidence, was not made out.
Having indicated the views he was likely to form, Sully J afforded an opportunity to counsel for the accused to be heard but that opportunity was declined. His Honour then published a judgment in which he set forth the procedure he had followed and his reasons for concluding that Mrs Glasby’s objection to being required to give evidence should not be upheld.
The appellant under these grounds challenges the statutory foundation for the exercise of his Honour’s discretion as being inapplicable. It is contended that since the events about which Mrs Glasby gave evidence occurred after her marriage and before the Evidence Act came into effect, s 18 was not available to make Mrs Glasby compellable in the proceedings, nor to operate such that she might be required to give evidence of marital communications even if these were in furtherance of the joint criminality of her husband and herself, and even if they had already been divulged by her on her plea.
It is submitted either that s 18 was not applicable and that notwithstanding the repeal of s 407 of the Crimes Act, the appellant retained a right under that section for Mrs Glasby’s evidence not to be given, or that on the repeal of s 407 (which had previously governed such circumstances) by the Evidence (Consequential and Other Provisions) Act 1995 the appellant was to be considered as acquiring a right or expectation for his wife not to give evidence at all and particularly of marital communications. The submission was that the repeal of s 407 had the consequence that the position was as though the section had never been enacted and the appellant was to be considered as having acquired such rights as might have arisen under the doctrines of the common law as to the non compellability of spouses and the privilege against the compulsory disclosure of marital communications. As to the position under s 407 and under the common law, see DPP v Smiles (1993) 67 A Crim R 234.
Reliance was placed on the common law presumptions of construction and s 30 of the Interpretation Act 1987 which provides:
(1)      The amendment or repeal of an Act or statutory rule does not:
(a)revive anything not in force or existing at the time at which the amendment or repeal takes effect, or
(b)affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act        or statutory rule, or
(c)       affect any right, privilege, obligation or liability acquired, accrued
or incurred under the Act or statutory rule, or
(d)      affect any penalty incurred in respect of any offence arising       under
the Act or statutory rule, or
(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,
any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.
(2)      Without limiting the effect of subsection (1), the amendment or repeal of
  an Act or statutory rule does not affect:
(a)      the proof of any past act or thing, or
(b)any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or
(c)       any amendment or validation made by the Act or statutory rule, or
(d)      the operation of any savings or transitional provision contained in
the Act or statutory rule.
(3)      This section applies to the amendment or repeal of an Act or statutory rule
in addition to, and without limiting the effect of, any provision of the Act
or statutory rule by which the amendment or repeal is effected.
(4)In this section, a reference to the amendment or repeal of an Act or statutory rule includes:
(a)      a reference to the expiration of the Act or statutory rule,
(b)      a reference to an amendment or repeal of the Act or statutory rule
effected by implication,
(c)       a reference to the abrogation, limitation or extension of the effect
of the Act or statutory rule, and
(d)      a reference to:
(i)        the exclusion from the application of the Act or statutory
rule, or
(ii)       the inclusion within the application of the Act or statutory
rule,
of any person, subject-matter or circumstance.
Reference was made to Rodway v The Queen (1990) 169 CLR 515, Kraljevich v Lake View & Star Limited (1945) 70 CLR 647 and Smiles case.
It was contended that the right claimed (perhaps more accurately described as an immunity) was a right of substance and applying the traditional presumptions against retrospectivity, deprivation of rights, alteration of common law doctrines and in favour of the protection of previous statutory rights, s 18 of the Evidence Act should be construed as not applying to affect it. See Pearce & Geddes, Statutory Interpretation in Australia 4th Ed, paras 5.13 - 5.23, 6.7 - 6.9, 10.2 - 10.4 and 10.21 for general discussion of the issues so raised. It is not necessary to review the well known authorities and principles usefully collected there.
In Rodway the High Court, in discussing both the common law position and the statutory provision analogous to s 30 of the Interpretation Act, held:
Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon CJ in Maxwell v. Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms: Potter v. Minahan; Baker v. Campbell; Sorby v. The Commonwealth; Hamilton v. Oades.
Whether or not the previous requirement of the law that certain evidence required corroboration before it could safely be relied upon could be described as basic or fundamental, both in Attorney-General’s Reference No 1 of 1988 and in this case the statutory amendments were clearly intended to alter the existing law with respect to corroboration. Both amendments were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operations. It follows that, in our view, Attorney-General’s Reference No 1 of 1988 was wrongly decided and that the Tasmanian Court of Criminal Appeal was correct in declining to follow the decision.
Nor, in our view, does s 16(1) of the Acts Interpretation Act support the applicant’s case. Paragraph (c) of that sub-section applies only to preserve acquired or accrued rights and, as we have endeavoured to explain, the applicant had acquired no right to a particular mode of procedure at his trial, at all events before his trial had commenced. A right to a particular procedure is acquired only when the occasion for the application of that procedure arises. Indeed, the difficulty experienced by counsel for the applicant in identifying an earlier time at which such a right might be acquired points to the inevitability of that proposition. If a right to a particular form of trial arises before trial, there is no logical reason for not saying that it is acquired upon the commission of the offence to be tried or even at the time of committal, and yet to say it is acquired at any earlier time means that it must be a right vested in all.
Those views are directly applicable to this case.
A similar contention, in very similar circumstances, had been advanced in Victoria in R v Boland [1974] VR 849 and rejected, it being held that neither the common law nor the Acts Interpretation Act 1958 (Vic) applied as the ‘right’ or ‘privilege’ was not a vested substantive right nor such a right as the Act recognised, and the words of the legislation were clear.
Similarly here, we are of the view that no right was acquired such as might have attracted the common law presumptions, nor would s 30 be applicable. Neither s 407 nor the common law conferred any enforceable right on the appellant. At most he had an immunity of a procedural kind conditional upon objection by his spouse. This was not such as would have been protected by s 30. By s 30(2)(a) the repeal does not affect proof of any past act or thing. The Evidence Act makes clear provision for that proof by providing expressly for the compellability of a spouse subject to the particular protective provisions of s 18.
Section 2 of the Evidence Act provides for the commencement in operation of its provisions. Section 4 applies it to all proceedings as set out. Section 9 relevantly provides:
(1)This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
(2)Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following:
…
(b)the operation of a legal or evidential presumption that is not inconsistent with this Act,
Section 12 provides:
Except as otherwise provided by this Act:
(a) every person is competent to give evidence, and
(b)a person who is competent to give evidence about a fact is compellable to give that evidence.
Thus there is express provision as referred to in s 9.
Sections 14 to 17 deal with presently irrelevant and limited exceptions to the general compellability provided for by the Act.
Section 18 expressly provides for the compellability of a spouse (and others) and for the procedure the trial judge undertook. Section 19 provides for specific exceptions to the operation of s 18.
The statutory scheme and the particular provisions referred to above make express provision for the compellability of spouses. There is no room to read down their clear meaning by the application of the common law presumptions, nor having regard to chapter 3 and in particular the omission of any reference to marital communication in Part 3.10 of the Evidence Act, is there any room for any marital communication privilege even if (which we doubt) such a privilege might have, at common law, existed for communications in furtherance of crime or continued to exist after a prior voluntary divulging.
Application of the Interpretation Act provisions are by s 5(2) subject to the provisions of other Acts disclosing a contrary intention, Durham Holdings Pty Ltd v State of NSW (1999) 166 ALR 500. Section 30 only provides for the circumstance where its effect is not excluded by express words or necessary intendment, ie. it is an aid to construction. It does not overbear such clear provisions as are made on this subject in the Evidence Act.
For these reasons we consider that s 18 applied and grounds of appeal 1 and 2 are rejected.
Ground 3 - Leave to cross-examine Mrs Glasby under s 38
After his Honour ruled that Mrs Glasby was a compellable witness, she gave evidence in chief led from her by the Crown Prosecutor. This evidence gave a version of the relevant events totally at odds with the evidence that she had given at her sentencing. On the evening of the murder she said that she went to an address, which she refused to name, and met a man there (who she would not identify). She drove the man to her home where they parted company. During the journey they had a conversation wherein he said to her that ‘he had arranged to take out a contract on John Theissl’, which she understood as meaning to murder him. She refused to give the court any further details because, she said, she apprehended that harm would come to her.
The Crown Prosecutor sought leave to cross-examine Mrs Glasby under s 38(1)(a) and (c) of the Evidence Act.
This section relevantly provides:
(1)A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party, or
…
(c)whether the witness has, at any time, made a prior inconsistent statement.
Subsection (1)(a) speaks of evidence given by the witness that is ‘unfavourable’ to the party who called the witness. We do not think that this is the occasion to enter into the debate about the precise meaning of ‘unfavourable’. It is unnecessary because, as Sully J observed, it was crystal clear that Mrs Glasby’s evidence in chief was directly ‘adverse to the Crown case’ and ‘denied the Crown case’. In Regina v Lozano (Court of Criminal Appeal, 10 June 1997, unreported) Hunt CJ at CL said that it had not been established that Ms Palmer’s evidence was unfavourable to the Crown’s case. She had not said anything which was directly adverse to or which denied the Crown case or which would be seen as attacking other evidence in the Crown case. His Honour added:
The word “unfavourable” which is used in the section (and which is not defined in the Act) should not therefore be interpreted as necessarily requiring either the witness or the evidence itself to be hostile or adverse to the case of the party calling the witness, in the sense that the evidence denies that case or attacks other evidence upon which that party relies. In Regina v Souleyman (1996) 40 NSWLR 712 at 715, Smart J adopted a dictionary meaning of unfavourable as “not favourable”. I am content, too, to adopt that meaning.

It is plain beyond argument that Mrs Glasby’s evidence was unfavourable to the Crown. Indeed, her evidence in chief was the antithesis of the Crown case.
The Crown also sought leave to cross-examine the witness about whether she had made a prior inconsistent statement. It is obvious that she had made such an inconsistent statement when she gave evidence at her sentencing in October 1997.
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.
Without clear and precise directions, it was submitted that the jury could not distinguish between the evidence of what Mrs Glasby saw or did and what she said the appellant had told her. In view of this error a miscarriage of justice had occurred. I should emphasise that no such objection is taken to the admission of the out of court statements of what she had seen, done or heard (otherwise than statements from the appellant). The argument of appellant counsel was confined to what she had said (at her sentencing) the appellant had said to her.
Much reliance was placed on Lee v The Queen decided by the High Court on 30 September 1998 after the subject trial, although a decision of general application. Lee held that evidence of what a witness said out of court reporting the appellant’s confession to him did not establish the truth of the confession. Accordingly, it should not have been received as evidence that the appellant had committed the offence.

The High Court said in Lee:
… s 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert. And yet that is what was done here. Evidence by a police officer that Mr Calin had said, out of court, that the appellant had said that he had done a job was treated as evidence that the appellant in fact had done a job a fact which Mr Calin had never intended to assert.
and at paras 40 and 41:
[40] It is then clear that s 60 was intended to work a considerable change to the common law. But there is no basis, whether in the considerations which we have mentioned as having influenced the Commission or otherwise, for concluding that s 60 was intended to provide a gateway for the proof of any form of hearsay, however remote. As has been indicated earlier in these reasons, that that was not intended is made plain by the terms of s 59 to which s 60 is an exception.
[41] Evidence of Mr Calin’s prior statements of what the appellant had said should not have been admitted as evidence of the truth of the confession allegedly made by him to Mr Calin. Because those prior statements of what the appellant had said went only to Mr Calin's credit, the trial judge could either have rejected those parts of the statements or, if that course was not followed, would have had to give clear directions to the jury about the very limited use to which they could be put. In the circumstances of this case, the former course was to be preferred.
The representations allegedly made to Mrs Glasby by the appellant were, prima facie, hearsay under s 59 of the Evidence Act and inadmissible. The question was whether they were admissible under the exception in s 60 of the Act which provides:
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.
Of course, the Evidence Act changed the common law which required that such evidence could go only to credit and not to the truth of the representations. See also R v Adam (1999) 47 NSWLR 267.
However, unless the representations were saved by s 60 (or by any other provision of the Act eg. s 72) they should not have been admitted. If they were admissible under s 60, the jury should have been directed as to the purpose of their admission, eg. as affecting Mrs Glasby’s credit. Further, the jury should have been directed that they were not to be taken as evidence of the truth of the representations. As we have said, Mr Papayanni accepts that the evidence in the second version of what Mrs Glasby said she had seen, did or heard was admissible.
His Honour, of course, did not have the benefit of the High Court’s judgment in Lee, it being decided some months after the trial. This is unfortunate. In addition, no objection was taken to the admission of the representations on the basis of hearsay, nor was any particular direction sought in the summing-up to distinguish between what Mrs Glasby said she had seen and heard (when giving evidence on 20 October 1997) and the representations she said that the appellant had made to her. Nonetheless, as we have said, Lee’s case is of general application and, as the Crown concedes, the appeal must be approached on this basis.
It is therefore necessary to examine version 2 in some little detail. We will attempt to divide it into two categories the alleged representations made by the appellant and what Mrs Glasby said that she saw, did and heard otherwise.
In her evidence in court in October 1997 Mrs Glasby said that it was the appellant who had killed John Theissl. This was what she had seen. She had assisted the appellant by driving him to meet the deceased at Villawood. On an earlier occasion she had driven the appellant to a meeting with Carmela Theissl and saw him receive $2,000 from her. She was present at a further meeting between the appellant and Mrs Theissl and saw her give him a maroon bag taken from her vehicle. This was about one week before the murder. She heard the appellant ask Mrs Theissl where the bullets were. Mrs Glasby said that she saw the gun, the ammunition and an oil filter (which seems to have been adapted as a silencer) on the end of the gun. She described the weapon.
On the night of the murder she drove the appellant to Villawood where she saw him meet with the deceased and get into the deceased’s vehicle. She then followed behind. The appellant parked, got out of the vehicle of the deceased and walked over to her vehicle. She saw him take the bag containing the gun and return to the victim’s vehicle. She saw the appellant drive off and she followed in her vehicle. She saw the appellant park in the car park at Lake Gillawarna and she parked a short distance away where she was able to observe.
She heard a sound and then saw the appellant walk from the driver’s side to the passenger’s side of the deceased’s vehicle. He was carrying the gun. She saw him fire through the window. She saw the appellant wiping the vehicle. The appellant returned to her car and she drove off. A short time later she watched as the appellant disposed of the gun, the bag and other items by throwing them into the Georges River. She drove the appellant to a telephone box where she saw him make a call. She heard him say ‘its done’ and ‘I’ll ring you in about a week’.
In short, her evidence on 20 October 1997 at her sentencing was that she witnessed the killing of Theissl by the appellant.
The first category of her evidence in October 1997 included representations of what she said the appellant had told her. It is these representations that the appellant contends, having regard to Lee’s case, were not evidence of the fact.
These statements included that the appellant had told her that he had used the name Steve (for himself) and Kayla (for her) in a conversation with the deceased. The Crown claimed that this was relevant to Ex N, which was a card found on the body of the deceased, in his wallet. The card referred to Steve and Kayla 9.30 Villawood Station and contained a phone number (726 0105) which, it was established, belonged to the appellant and Mrs Glasby.
Other statements of what Mrs Glasby says the appellant had said to her included that Mrs Theissl had wanted her husband killed because he was molesting their children and that she was paying the appellant about $40,000. Further, that he had told her that he was going to tell Mr Theissl that he could meet up with his wife and that the deceased was ‘into wife swapping’. Further, that the oil filter (on the gun) was a silencer. Further, that he was to meet Theissl at Villawood to tell him that Mrs Glasby would be available for sex with him. Further, after the murder, he told her that Mrs Theissl had told him he would have to wait for payment because the police were watching her assets.
The Crown seeks to justify the admission of these representations and the absence of any specific direction to the jury as to how they were to be treated, as contemporaneous representations about the appellant’s intention, common knowledge or state of mind excluded from the hearsay rule under s 72 or relevant to other evidence before the jury, eg. the note, Ex N, the tapes, Ex AA or Mrs Glasby’s credit.
With the hindsight of Lee’s case, it is apparent that many of the representations should not have been admitted, or if admitted, clear directions should have been given to the jury of the purpose of the evidence and the use sought to be made of it. Lee’s case suggests that a voir dire should be undertaken to determine which questions could be asked in respect of the previous inconsistent statement. If this had occurred, it may have isolated the representations from what Mrs Glasby said she saw and heard.
We are driven to the conclusion that grounds 4 and 5 of the Notice of Appeal have been made out, and, by implication, ground 6. That is, that his Honour was in error in not directing the jury that Mrs Glasby’s evidence of 20 October 1997, in so far as it concerned representations of what she said the appellant had told her, was not evidence of the truth of those statements. As it was, version 2 was left to the jury in toto and without discrimination.
It was also submitted that his Honour should have rejected portions of Mrs Glasby’s second record of interview in so far as it was claimed to have infringed Lee’s case. However, his Honour made it very plain that the whole of the record of interview went only to Mrs Glasby’s credit. In this respect, his Honour’s direction to the jury was very careful and clear.
The question which arises for consideration is whether the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied. The Crown submits that it should. It is submitted that the identity of the murderer was the fundamental issue to be determined by the jury. Mrs Glasby gave evidence at the appellant’s trial that he had nothing to do with the murder. At her own sentencing she had said that she had witnessed the appellant commit the murder. If the jury accepted this version of Mrs Glasby, as to what she had seen and heard, there was overwhelming evidence that the appellant was the murderer. By comparison, her evidence of what the appellant had told her was of limited significance. Even if that material should have been excluded or his Honour had directed the jury in accordance with Lee, it would in our estimation have made no difference to the verdict. What was of paramount importance, submits the Crown, is the jury’s assessment of Mrs Glasby’s assertion that she saw the appellant shoot the deceased.
The proviso should not be applied where there is a fundamental error in the conduct of the trial (Quartermaine v Regina (1980) 143 CLR 595). As explained in Wilde v Regina (1988) 164 CLR 365 at 373 the proviso has no application where the irregularity is such a departure from the essential requirements of the law as to go to the root of the trial. It means that an accused has not really had a proper trial at all. While there is no rigid formula to be applied to determine whether an error is fundamental, no mechanical approach to the question should be adopted. Each case is to be determined on its own facts. In Glennon v Regina (1994) 179 CLR 1 at 8 the joint judgment of Mason CJ, Brennan and Toohey JJ saw it as appropriate to have regard to ‘the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error’.
The Crown case was a very strong one if the jury accepted the version given by Mrs Glasby at her sentencing on 20 October 1997. This was an eye witness account of the killing by the appellant which gained nothing in strength from the evidence which was inadmissible. In addition to this version, there were other telling pieces of evidence. The note (Ex N) found on the deceased (in his wallet) which referred to 9.30 Villawood Station and contained the phone number of the appellant and Mrs Glasby. In addition, there was the taped conversations (Ex AA) which were admitted without objection. These included a conversation between the appellant and a male. In the conversation the appellant gave a considerable degree of detail about a killing, which he said he had performed. It was open to the jury to conclude that he could only have known of these details if he was the murderer of Theissl. For example, in the tapes of 17 December 1994 (Ex AA excerpt 2) the appellant said:
‘I knocked her fuckin’ I shouldn’t be talking about this but I knocked her fuckin’ husband, for, he molested the kids you know? And she was a friend of my wife’s and said, look, he did this and that, right?
…
‘In his own car, and I was driving along. My wife’s behind me. And I said to him, I said, “Hey”, I said, “Crawl down there right on the fuckin’ floor of the fuckin’ car. So he crawled right down on the floor. I said, “What do you think of child molesters”.
…
‘I said, “I’ve been paid to kill you (indistinct words - then) been paid to kill you because you bash your wife, you molest your kids.”
In his evidence at the trial the appellant accepted that his reference in the taped conversation to his having killed a person was a reference to the husband of Carmela Theissl. The detail of many excerpts from the tapes could not have been known to the appellant from the newspaper accounts and are inconsistent with much of his evidence at the trial. We give just one example. The Telegraph-Mirror (Ex 4) stated that the victim was found ‘slumped in the passenger seat’ while the photographs in evidence, eg. Ex E, showed the victim was found on the floor of the vehicle.
In addition, Ex Z was evidence of Mrs Theissl telephoning the appellant’s home phone number prior to and after the day of the murder. Further, Exs X and Y established that there was a meeting between the appellant and Mrs Theissl after the murder. Exhibit Y consists of photographs of the appellant and Mrs Theissl meeting on 28 November 1994. Ex W is a note purportedly from the appellant and Mrs Glasby to Mrs Theissl, to arrange a meeting with her.
All of these were substantial pieces of evidence against the appellant such as to make the Crown case a strong one.
As against this, the appellant’s case relied very much on his denials, Mrs Glasby’s evidence in chief that he did not kill Theissl but someone else did, and his account of his wife and Carmela being involved in some illegal transactions involving marijuana plants and perfume. This explanation also ran to the telephone contacts and meetings with Mrs Theissl. The appellant explained his statements on the tapes to the male person as drunken bravado and bragging to impress.
Reflection on the appellant’s case exposes how weak and implausible his explanations were.
Examining the trial as a whole, and the course that it took, we are unable to conclude that the admission of the representations Mrs Glasby said in her October 1997 evidence on her sentence were made by the appellant to her, was a fundamental irregularity in the trial. Nor was the failure to direct the jury that the representations were not to be taken as the truth of the facts a fundamental irregularity. They were not fundamental errors of such significance as to vitiate the trial. They did not go to the root of the trial.
That being so the proviso could be applied. Accordingly, we turn to the question of whether the appellant lost a chance of being acquitted which was fairly open to him by reason of the error (Mraz v Regina (1955) 93 CLR 493 at 514 - 515, Fullagar J). If he has, there has been a miscarriage of justice and the proviso cannot be applied.
As Barwick CJ put it in Regina v Storey (1978) 140 CLR 364 at 376:
If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were removed a reasonable jury might well have acquitted.

In our view, the error identified above did not deny the appellant a real chance of acquittal. A jury, acting reasonably on the evidence before them, would have inevitably convicted the appellant of murder in the event that the representations that Mrs Glasby says that the appellant made to her had either been excluded or an appropriate direction given to the jury concerning their use. In either of these events, the Crown case against the appellant was still very strong and the appellant’s case weak and implausible. It would have made no difference to the verdict. We do not see that there was any substantial miscarriage of justice. The proviso to s 6(1) of the Criminal Appeal Act should be applied.
Ground 8 - ‘Accepting’ the evidence of the accused
Ground 8 of the Notice of Appeal claims that his Honour erred in law in misdirecting the jury as to the appellant’s evidence being ‘accepted’. This referred to portions of the summing-up wherein his Honour had referred to the jury ‘accepting the appellant’. The submission is that these remarks did not sufficiently explain that, unless rejected, the accused’s evidence was such that could cause a reasonable doubt as to his guilt.

100 In addition, it is submitted that the last paragraph of a document handed to the jury for their assistance reversed the onus of proof and placed it on the appellant. This document was marked for identification 39. It was a series of suggested directions on the two versions of Mrs Glasby’s evidence. It was intended to assist the jury in determining the issues arising from the evidence of Mrs Glasby.

101 The document was provided to the jury without objection from counsel for the accused. The procedure was available under the Jury Act1977 (s 55B).

102 Note 4 to MFI 39 states:

Has the Crown satisfied you beyond reasonable doubt that version 2 is reliable, and that it is therefore safe to act on it?

103 We do not understand this as reversing the onus of proof. His Honour directed the jury on the onus of proof on numerous occasions in the summing-up. In particular, his Honour said:

… there is one thing I want to add to what I have already said to you about the evidence of the accused insofar as what he has said is relevant to the Crown case. Although he has chosen to give evidence and to mount a positive case in answer to the Crown case, he has not thereby undertaken any burden of proof. I know that I said that once, and I want to say it again so it is clear. As to the contentions that are put forward in the case for the accused, the ultimate question is always whether the Crown has satisfied you beyond reasonable doubt that those defence contentions are without substance. That follows from the overriding burden that the Crown carries. So that when I say to you, as I said repeatedly when summing up the accused’s own evidence, that it is for you to say whether or not you are satisfied that you can rely upon what he said, I was not intending to suggest that he has the burden of proving anything. The question is, having heard what he said, having watched him as he said it, having heard the contending arguments based upon what he said, has the Crown satisfied you that you ought not to accept and to act upon what he has said? I trust that what I said to you earlier was clear in those terms, but I thought it prudent to tell you again just in case. Is that all clear to you? Yes? All right.

104 Reading the summing-up as a whole, it is impossible to see how the jury could have been under any misapprehension about who had the onus of proof. This ground is rejected.

Ground 9 - Failure to discharge the jury

105 On both 8 and 9 April 1998, the tenth and eleventh days of the trial, counsel then appearing for the appellant made unsuccessful applications to Sully J to discharge the jury. The grounds of the applications lay in remarks made in the presence of the jury by the appellant’s wife while giving evidence in chief. Prior to the first application being made, the transcript records the following: (As with later passages, we set it out as printed)

QAnd what you said there in giving that evidence on oath on 20 October 1997 was the truth, wasn’t it?
ANo, it wasn’t the truth [STRIKE OUT BEGINS] Gary may have been charged with armed robbery before but -- [STRIKE OUT ENDS] (T462)

…
QAnd indeed, the fact was that from what you had seen happen at Lake Gillawarna your husband Gary did in fact murder John Theissl?
AHe may have been an armed robber but he is not a murder (sic) - he didn’t.

HIS HONOUR: I am bound to tell you, members of the jury, it is unfortunate that the witness persists in making them in the face of the warnings I have given. Strike out that part of the answer. You will please ignore it. It has absolutely no relevance to questions that you have to decide in this case. (T469)

106 Shortly after this evidence was given the first application for discharge was made. After it was refused his Honour warned Mrs Glasby of the importance of just answering the questions asked. The transcript of evidence later that day contains the following:

Q(After having been taken to a transcript of a recorded interview with police) Now those questions were asked of you and you gave those answers?

A That is correct.
QAnd to the extent that I read out to you it is true what you said there?
AWell, I have said that and it doesn’t necessarily mean it is true.
QThat is what I am asking you - and I am suggesting that it is true?

A It is not true.
Q You said on the very morning of the arrest that you?
AI know I have but the unknown male may have been the man that killed John Theissl [STRIKE OUT BEGINS]. Yous don’t know that because yous didn’t investigate that [STRIKE OUT ENDS].

Q And you force that on me?
A[STRIKE OUT BEGINS] You only concentrated on Gary [STRIKE OUT ENDS].

Q You have described her a weapon - haven’t you?
HIS HONOUR: Ladies and gentlemen, once again I have to ask you to be careful. The last two sentences in that answer will be struck out - they will be struck out because they were not responsive to the questions that were asked. They are not part of the answer. They are no part of the evidence. Please disregard them accordingly.
…
Q But I am asking you, it is true, isn’t it?
ANo it is not, do you want me to tell you why or am I supposed to shut up.

HIS HONOUR: You are asked to do politely what you have done several times today, just to answer questions. Now please Mrs Glasby there is a limit.
A[STRIKE OUT BEGINS] Well the truth is never going to come out [STRIKE OUT ENDS]

HIS HONOUR: The jury will disregard that comment also. Strike it from the record. Just answer the questions please. (T481-2)
…
Q Did that information come to you from the accused?
AUnknown male [STRIKE OUT BEGINS] even though they are surveilling the house there was an unknown male [STRIKE OUT ENDS]
QPlease restrict yourself to answering the questions as I ask them of you.

HIS HONOUR: Strike out that part of the answer. (T483)
…
QJust a moment. Your evidence earlier on, was it not, that the threats began to you --

A        If you know the person.
Q.       Would you please?
A        If you know the person - right.
HIS HONOUR: Mrs Glasby please.
QPlease don’t shout me down. You told us in this Court not long ago that the threats which induced you to give that evidence that you said was a lie on 20 October 1997, stem from the threats or threat made to you after you had been bailed and about a week before you gave evidence. That was your evidence to this Court today, wasn’t it?

A        Yes, it was.
Q        And that was the truth, wasn’t it?
A        It was the truth but you don’t know the person, right
Q        You were not--?
A [STRIKE OUT BEGINS] He’s just trying to set him up because they think he is a murderer, he has not done nothing. All he has ever done is stick ups.

Q Please don’t force material on me?
AThey’re setting him up, they always have. [STRIKE OUT ENDS].

HIS HONOUR: Ladies and gentlemen, I think we will all just quieten down for the moment. Ladies and gentlemen, please ignore the entirety of that outburst. Strike it from the record and ladies and gentlemen, I think you might just go outside for a few minutes.
IN THE ABSENCE OF THE JURY
HIS HONOUR: Mrs Glasby, I have asked you more than once not to make these outbursts and I tried to explain to you that if you persist in doing it, so far from helping your husband you are likely to achieve exactly the opposite result. Do you not understand what is being explained to you in that regard? Do you or do you not?
A I do.
Q Understand?
AI do. Have you got a daughter? Have you got a daughter?
QMrs Glasby, in just a moment I will get the jury back and we will try again. If you, once more, make an outburst like that then I warn you that I will give consideration to what steps ought to be taken as to you and as to your husband’s situation, do you understand?
A.I don’t care no more because he is being set up anyway, he is going to be get found guilty, he didn’t do it. I have been set up from the word go. They want him from the Delgardo, they want him for other fucking shit, he is already going down, no matter what.

Q        Do you understand what I just said to you?
A        (No answer).
Q        Do you understand what I just said to you?
A        Yes.
QAre you prepared to continue on the basis of no more outbursts of that kind?

A        Yes.
Q        Are you?
A        But he’s telling me --
QAre you, Mrs Glasby, prepared to continue to give your evidence on the basis that has been explained to you, that is to say that you do not indulge in any more of those outbursts?

A Yes. (T493-495)

107 The jury returned and later the case was adjourned to the following day. On the following morning some questioning of Mrs Glasby occurred in the absence of the jury and then his Honour again instructed Mrs Glasby of the importance of not bursting out. The transcript of later evidence, still in chief, which she gave in front of the jury includes the following:

QAnd you recall the accused saying these words, or close to it on the tape:
“We might get nailed down saying this or saying that, you know?

A Yes, probably because we were stealing a lot of stuff.
QMrs Glasby, what you were talking about there was getting your heads together with Mrs Theissl to work out your story, not about anything to do with stolen property but about your contract with her arising out of the death of your husband?

A If yous investigated it you would--
Q Isn’t that the case?
A[STRIKE OUT BEGINS] No, it’s not fair, that is why justice is like this (indicated unbalanced scales). Because its never fair because you always accuse the wrong people. He’s let go because he works with the coppers, that’s why you let him got. [STRIKE OUT ENDS].

Q You have been cautioned?
A I don’t care no more, I don’t care.
HIS HONOUR: Ladies and gentlemen, those comments also will be struck from the record and you will pay no attention to them, please.
WITNESS: [STRIKE OUT BEGINS] When yous were told a murder weapon was under a house, did yous go and investigate it? No. [STRIKE OUT ENDS]
HIS HONOUR: That too will be struck from the record and you will ignore that.
WITNESS: [STRIKE OUT BEGINS] They’re picking on him because he’s done armed robberies in the past and now they’re picking on him and it’s not fair. [STRIKE OUT ENDS]
HIS HONOUR: Ladies and gentlemen, I am sorry to do this to you, please excuse us. (T520 - 521)

108 The jury went out and it was at that stage that Counsel made her second application.

109 In the course of refusing the first application for the jury’s discharge, Sully J observed that Mrs Glasby seemed to be seeking to give some dramatic verisimilitude to the answer she was putting to the jury, by saying words to the effect, ‘He’s an armed robber, but he’s not a murderer’. His Honour noted that the jury had been carefully and attentively following the evidence and had indicated they understood directions they had been given and said that he was not disposed to assume that the jury would not be faithful to their oath to try the accused upon the evidence and accept the directions of law they were given. His Honour recognised that his decision on the application involved a balancing exercise requiring an individual judgment.

110 In the course of his reasons for rejecting the second application Sully J referred to the discussion with Mrs Glasby as to whether she had considered overnight the directions and observations and cautions that had been given to her and observed that he was satisfied that ‘whatever it is that she (Mrs Glasby) thinks she is doing, is being done deliberately’. His Honour also pointed out that to accede to the application for discharge would require either the abandonment (implicitly at any future trial) by the Crown of the calling of Mrs Glasby’s evidence which his Honour had ruled the Crown was entitled to present, or would make the proper presentation of the Crown case hostage to the whim of Mrs Glasby. His Honour observed that subject to one proviso the proper course of justice could not be permitted to be obstructed that way. The proviso was that it was incumbent upon him to assess the jury’s reaction not only to Mrs Glasby’s outbursts, but also to the directions of law relevant thereto. His Honour said that he was satisfied that the particular jury was following his directions. Earlier, his Honour had said that he was not prepared to accede to the proposition that irreparable damage had been done to the legitimate interests of the accused to have a fair trial according to law.

111 It should also be mentioned that at page 529 of the transcript his Honour gave the jury another detailed direction to the effect that Mrs Glasby’s references to the appellant having been involved in other criminal activities was wholly irrelevant to the only charge with which the jury was concerned. His Honour returned to the topic in his summing-up in equally emphatic terms.

112 In R v Crofts (Victorian Court of Criminal Appeal, 8 May 1995, unreported) the Court cited with apparent approval a passage in an earlier case in that Court, R v Boland which was in these terms:

Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence, and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held. Great weight must always be given to the views on such matters of the trial judge, for he is acquainted at first hand with the conduct and atmosphere of the trial and he has had during its progress the opportunity of assessing the jury - advantages which are necessarily denied to an appellate court.
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1QB 390. The principle is really one of necessity. There must be evident “a high degree of need for such discharge”, that high degree being “such as in the wider sense of the word might be denoted by necessity”: per Erle, CJ at 394.

113 The approach evident in that passage was adopted in R v Crofts and approved by four judges of the High Court when that decision went on appeal - Crofts v R (1996) 186 CLR 427 at 440. On that page their Honours also said:

The Court of Criminal Appeal acknowledged that the trial judge had a discretion: that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity.

114 It may be accepted that ‘[R]eception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law’ - R v Glennon (1992) 173 CLR 592 at 604 per Mason CJ and Toohey J, citing Maxwell v DPP [1935] AC 309 at 317 - and that the courts go to great lengths to ensure that such evidence is not placed before a jury except in unusual and particular circumstances. However, consistently with the principles referred to in the immediately preceding paragraphs, it is not an invariable rule that when such evidence is inappropriately given, the jury must be discharged - Maric v R (1978) 52 ALJR 631 at 634, Glennon at 604.

115 In any judgment as to the need for, or desirability of, a jury’s discharge in consequence of a jury hearing such inadmissible evidence, regard will be had to the significance of the evidence and whether it is of a nature such that a jury could reasonably be expected to be able to disregard it if instructed so to do. In that respect, a very material factor in the instant case is that the vast bulk of the inadmissible evidence was calculated to show that the appellant’s criminality was in a very different area from the crime with which he stood charged. As Mrs Glasby said ‘[H]e may have been an armed robber but he is not a murder(er)’ and ‘[A]ll he has ever done is stick ups’. Although, of course, the charge against the appellant involved the use of a gun for monetary gain, and armed robbery has the second of these characteristics and may involve the first, there remains a significant difference between the two offences, particularly having regard to the cold calculated way in which the appellant was alleged to have shot Mr Theissl.

116 The case is radically different from, eg Crofts, where the inadmissible evidence was of sexual misconduct of the identical nature and involving the same parties, one of whom was a child, as that charged. It is far easier to infer from the occurrence of one such incident, whether the subject of prior conviction or not, the likelihood of another, than to infer from the commission of armed robberies, the commission of murder of the nature charged here. So high on the scale of criminality is deliberate killing that it involves a quantum leap from almost anything else.

117 Nor is it readily to be assumed that Sully J’s directions to the jury would not be followed. The whole process of jury trials proceeds on the assumption that a jury will adhere to directions from the bench. In the case of many directions there is, of course, no temptation for a jury not to follow them but in many other situations there is. Examples include cases where a jury is told, as not uncommonly happens, that even if they think that, probably, an accused is guilty, they must acquit unless convinced of guilt beyond reasonable doubt; that evidence may be used for one purpose but not for another; and (in many jurisdictions) that evidence of complaint is relevant only to credibility. A number of provisions of the Evidence Act, eg ss 95 and 136 proceed on the assumption that a jury can and will follow directions given.

118 As was said by the Mason CJ and Toohey J in Murphy v R (1989) 167 CLR 94 at 101 in another context, ‘[I]t may be said that there can be no guarantee that directions given by a trial judge …. will be successful’. There may be limits to the statement of the majority in Crofts at 441, ‘[I]n the imperfect environment of the trial process, it is necessary to operate upon the assumptions that a jury will be capable of conforming to judicial instruction to put particular evidence out of account’; for otherwise, a jury would hardly ever be discharged on the ground that prejudicial inadmissible evidence had been given. Nevertheless, as was said by Brennan J, with the concurrence of Dawson J, in Glennon at 614-5, the experience of the courts is that reliance on the integrity and sense of duty of jurors is not misplaced. See also at 603 and 616 and R v Adam (1999) NSWCCA 197 at [75].

119 For our part, we see no reason why Sully J was not entitled to conclude that the jury could be trusted to do what they had sworn to do. We would readily have taken the same view. It is almost fanciful to think that there was a significant risk that the jury would be tempted to take the enormous step of convicting the appellant of murder, because he had, or may have, been guilty of armed robbery in the past.

120 So far we have been considering only Mrs Glasby’s statements to the effect that the appellant had committed armed robbery. But included in the passages of evidence reproduced above were the statements:

‘He’s just trying to set him up because they think he’s a murderer’,
‘… we were stealing a lot of stuff’, and
‘When yous were told a murder weapon was under a house, did yous go and investigate it? No.’

121 In that the first of these passages states that ‘they (presumably the police) think he’s a murderer’, it might be suggested the passage contains the inference that the police had cause for that view. However, the admissible evidence before the jury demonstrated that there was such cause. There is nothing in the passage to suggest that the police knew anything the jury did not, so in our view there was nothing significantly prejudicial in that passage.

122 The statement ‘because we were stealing a lot of stuff’ was not the subject of specific complaint. In any event, there was nothing unfairly prejudicial about it. It was part of the appellant’s case that he had been involved in some criminality and this was the explanation for some of the statements he had been recorded as making.

123 The third of the passages just quoted was also not the subject of individual remark during the appeal. It may be inferred to have been a reference to one of two weapons that the appellant had described and told a police officer was under the house of another person whom the appellant had suggested was involved in Mr Theissl’s death. The murder weapon suggested by the Crown to have been that involved in the killing of Mr Theissl was not found. There was evidence that Mrs Glasby had told the police that it had been thrown in a creek or river although in her evidence she asserted that in this respect she had lied. Whatever be the situation in that regard, we do not see in the passage anything prejudicial to the appellant.

124 Although we do not need to rely on it, there is another and quite separate ground upon which we would conclude that there was no error in his Honour’s decision to refuse to discharge the jury. In Jago v District Court of NSW (1989) 168 CLR 23 at 47 Brennan J said:

Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen) (1989) 167 CLR 94), adverse revelations in a public enquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25), absence of competent representation (McInnes v The Queen (1979) 143 CLR 575; MacPherson v The Queen (1981) 147 CLR 512), or the death or unavailability of a witness, may prevent obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but that responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedure of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

125 With the concurrence of Dawson J his Honour returned to the same topic in Glennon at 615-6.

126 In Jago, at 30, Mason CJ pointed out that fairness to the accused is not the sole criterion when a court decides whether a trial should proceed. There is a public interest that trials are conducted fairly but also that persons charged with criminal offences are tried without unreasonable delay. Toohey J made observations to similar effect (at 72). So did Mason CJ, and Toohey and Brennan JJ in Murphy at 99 and 123.

127 Despite her desire and the interest of both herself and the appellant that this not occur, the Crown was entitled to adduce in front of the jury evidence from Mrs Glasby. With good reason Sully J formed the view that, even if the trial before him was aborted, Mrs Glasby would in all probability repeat her performance at any new trial at which she was called. Thus nothing would be gained by discharging the jury unless the Crown was prepared in any new trial to forgo its right to have her evidence. That was a price which neither the Court, nor the Crown representing the community, could be expected to bear. No Court can tolerate a situation where it is a witness who decides whether and what of available evidence will be given.

128 Sully J did all he reasonably could to prevent Mrs Glasby’s outbursts. Any unfairness which arose was outside the Court’s control. It is unnecessary in the circumstances of this case to embrace as a universal proposition the observation of Brennan J that ‘[U]nfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness’. It is sufficient to say that, having regard to the rights of the Crown, Sully J’s response was one his Honour was entitled, in the exercise of his discretion, to adopt - cf Murphy at 125.

129 But apart from the considerations to which we have referred in dealing with this ground, there is another. The essential question for this Court is not whether Sully J’s refusal to discharge the jury was correct but whether it occasioned the risk of a substantial miscarriage of justice - Crofts at 441. See also Maric at 634-5. To a large degree this question has been dealt with in paras 87 et seq above. There is nothing in the evidence or other matters arising under, or relevant to, this ground which, considered alone or in conjunction with matters previously dealt with, persuades us that this question should not be answered in favour of the Crown. Indeed, we are positively persuaded that there was no miscarriage of justice.

Ground 12 - The verdict was unsafe and unsatisfactory

130 Although this ground was framed in what became the usual way, the relevant factors are best considered in the term used in s 6 of the Criminal Appeal Act, Fleming v R (1998) 73 ALJR 1.

131 In any event, the argument advanced in support of this ground fell within a limited compass. It was that if Mrs Glasby’s evidence was excluded, the verdict was unsafe and unsatisfactory. In light of the conclusions at which the Court has arrived concerning her evidence and when considering the application of the proviso to s 6(1) it is unnecessary to further consider this ground in any detail. It fails.

132 Accordingly, the appeal against conviction is dismissed.

Appeal on sentence

133 The appellant was sentenced to penal servitude for life. The sentence is attacked on two grounds. First, it is submitted that the trial judge erred in finding that the case was one of the worst examples of the crime of murder. Second, on the basis of lack of parity with the sentence imposed on Mrs Glasby.

134 After discussing some of the case law on s 19A of the Crimes Act, his Honour said:

Given the verdict of the jury, and given my own views as earlier expressed of the relevant facts, I cannot see the present case as other than one of the worse (sic) examples of the crime of murder. It involved a deliberate killing or (sic) reward of a person who, whatever his personal faults might have been, was not an outlaw at the mercy of any privately hired executioner. The killing was planned with care; and was implemented with both care and persistence. Such a killing for reward is an outright attack on concepts of the sanctity of human life, and of its protection within a framework of public order underpinned by public justice, which are concepts fundamental to what our society regards as acceptably civilised.

135 As Hidden J said in R v Chung [1999] NSWCCA 330 the question comes down to whether the sentencing judge has been shown to have fallen into error in imposing the life sentence. His Honour continued:

… This Court would scrutinise any life sentence but, at the end of the day, whether the Court should intervene depends upon the application of the familiar principles governing appellate review of a judicial discretion. [para 29]

136 Was it open to his Honour to conclude that the appellant’s culpability was such as to call for the imposition of the maximum sentence?

137 Of course, the maximum penalty is intended for cases falling within the worst category for which that penalty has been prescribed, Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. As the High Court said, this does not mean that a lesser penalty should be imposed if it is possible to envisage a worse case. They continued:

… ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category. [at 478]

138 In R v Kalajzich (1997) 94 A Crim R 41 at 50 - 51 Hunt CJ in CL said that ‘the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment’.

139 He continued:

… It must nevertheless be possible in the individual case to point to its particular features which are of very great heinousness, and there must be an absence of any facts mitigating the objective seriousness of the crime (as distinct from any subjective features mitigating the penalty to be imposed). [at 51]

140 Hunt J referred to the sentence imposed in R v Crofts (Supreme Court, 6 December 1996, unreported) and endorsed a statement of Grove J that a ‘deliberate killing for payment would prima facie find its place in the worst category of case with the potential for imposition of the maximum penalty’. Hunt J agreed with this statement but noted that not every case of a contract killing would attract the maximum. For example, there may be facts mitigating the objective seriousness of the crime.

141 It is argued on behalf of the appellant that there are degrees of contract killing and this particular example is not in the worst category. However, we cannot conclude that Sully J’s finding was not open to him. Indeed, in our view, his Honour’s conclusion was well and truly available. We can see no facts which mitigated the objective seriousness of the crime such as would reduce its level of culpability below the category of worst case. That does not mean that this is the worst case or there are not other cases which are of greater heinousness. That is not the point. We would dismiss this aspect of the appeal.

142 Mr Papayanni further submits that his Honour failed to take into account the principle of parity of sentencing.

143 One member of the Court (Hulme J) has expressed separate reasons on the parity submission. They follow immediately at the end of this judgment which, on the question of parity, represents the views of Stein JA and Greg James J.

144 His Honour had sentenced Mrs Glasby, who pleaded guilty to the murder, to 12 years, comprising a minimum term of 9 years and an additional term of 3 years. But the two cases are significantly different. When sentencing the appellant his Honour was well aware of the sentence which he had imposed on Mrs Glasby.

145 Two obvious differences may be noted. First, Mrs Glasby pleaded guilty, albeit belatedly. Second, her part in the murder was far less significant than that of the appellant. She drove her vehicle behind the appellant, was present at the murder scene and drove him away from it. The appellant fired the weapon which killed the victim. On these bases alone a quite different sentence was appropriate to be imposed on the appellant to that imposed on Mrs Glasby. As between the appellant and his wife, the objective gravity and subjective circumstances were quite diverse. In particular, the culpability of the appellant is far higher than Mrs Glasby. We would reject the parity argument.

146 Accordingly, leave to appeal on sentence should be granted but the appeal dismissed.

147 HULME J:

148 On the issue of parity between the sentence imposed on the appellant and that imposed on Mrs Glasby, who was sentenced to imprisonment for 12 years, comprising a minimum term of 9 years and an additional term of 3 years, I prefer to express my own reasons.

149 Although his Honour cannot have been unaware of the sentence he had imposed on Mrs Glasby, he did not refer to it when sentencing the appellant. And there are differences between the circumstances of the two. Firstly, Mrs Glasby pleaded guilty, albeit only after some objections to the admissibility of evidence at her trial were overruled. Secondly, her part in the killing was less than that of the appellant. It was the appellant who killed Mr Theissl; Mrs Glasby’s role was to pretend she was available for sexual activity, to drive to the scene of the murder, be present there while it occurred and drive the appellant away from it. Some days earlier she had seen Mrs Theissl hand to the appellant the murder weapon and ammunition and later had driven the latter to the scene of a proposed rendezvous with the victim. A meeting on that occasion did not occur because of some reluctance on the part of Mrs Glasby to fulfil her role of sexual bait.

150 Mrs Glasby was 20 years old at the time of the offence. Her antecedents disclosed a dozen or so prior offences, none of which were ‘anything like as serious as the offence’ for which she stood for sentence. Some of her offences had been committed while on bail awaiting the charge of murder and at the time of trial she had spent about 12 months in custody on one or more of those offences.

151 The appellant was 37 years old at the time of the killing. Sully J described his record as ‘chilling’. It included convictions for two counts of buggery, and one count of each of robbery in company, escaping for lawful custody, armed robbery and armed robbery with wounding. There were many lesser offences.

152 On the topic of remorse, Sully J said that he was not prepared to find that Mrs Glasby had none but neither was he prepared to find that any sense she did have was ‘clear and substantial’. The appellant was regarded as exhibiting none. Mrs Glasby was regarded as having reasonable prospects of future rehabilitation. Sully J clearly thought that the appellant had none.

153 Sully J said that Mrs Glasby’s personal history made sad reading. Nevertheless she had a good upbringing to at least age 15 and seems first to have fallen into trouble at 18. Then, or soon after, she became addicted to heroin. His Honour accepted that the Appellant had had ‘a harsh and deprived young life spent in homes and juvenile detention centres, and wholly lacking in parental affection, example and formation.’

154 On the other hand, in his remarks when sentencing Mrs Glasby, his Honour said that, although there was some element of dependency upon Garry Glasby:

… the prisoner should be found, in terms of her objective culpability, to have been a knowing and an active participant in the contract killing of the victim.

and
For all of the foregoing reasons I am of the opinion that the killing of the victim was a cold-blooded contract killing; and that the prisoner was, in a real and substantial sense complicit in it, and criminally culpable for it.

155 The differences to which I have adverted mean that there had to be a substantial difference in the sentences imposed on the two offenders. Nevertheless, when recognition is given to the findings to which I have just referred, it is impossible to reconcile the two sentences. If regard is had to the life tables, the appellant will remain in prison for about 40 years. Sully J accepted that at least some of this time would be spent on protection.

156 A total sentence of 12 years on the other hand is, according to the statistics kept by the Judicial Commission, within the bottom 13% of sentences imposed for murder. Nine years is within the bottom 23% of minimum terms in such cases.

157 The question then arises, what impact should the disparity between the sentences imposed on the appellant and Mrs Glasby have? In making that decision, recognition must be afforded to the principles that ‘unequal treatment under the law of co-offenders, by reason of the inconsistency in their punishment, leads to an erosion of public confidence in the integrity of the administration of justice’, see Hodges v R (1997) 95 A Crim R 85, and may create a justifiable sense of grievance on the part of the offender treated more harshly. The principle extends to co-offenders where some difference in treatment is justified but the difference in treatment is out of all proportion to the difference in circumstances - Postiglione v R (1996-1997) 189 CLR 295.

158 However, the principle is not absolute. As I said in R v Reardon (1996) 89 A Crim R 180 at 191:

It is clear that the court has a discretion. This was the approach taken by Street CJ and Nagle CJ at CL in Tisalandis [1982] 2 NSWLR 430; (1979) 1 A Crim R 7, by this Court in Draper (unreported, Court of Criminal Appeal, NSW, 12 December 1986) and by at least majority of the Queensland Court of Criminal Appeal in Cox (1991) 55 A Crim R 396 and in Lowe (1984) 154 CLR 606; 12 A Crim R 408 by Gibbs CJ (at 610; 410), Wilson J (at 616; 413) and I think probably by Dawson J (at 624; 420).
And the competing considerations require that this discretion exist. In many cases disparity will be a consequence of the lower sentence imposed on a co-offender being inadequate, sometimes grossly so - see Diamond (unreported, Court of Criminal Appeal, NSW, 18 February 1993). Faced with inadequacy in a lower sentence a court asked to correct a higher sentence is unlikely to be able to avoid disparity in some way. If the court does nothing the disparity between the sentences on the co-offenders will remain. If the court interferes so as to eliminate that disparity it is likely that the result will be the existence of two sentences out of line with the sentences imposed on other offenders in similar cases. As Street CJ recognised in Tisalandis (at 431; 8) “the ultimate decision at the appellate level will involve a balancing of the general as against the particular considerations in order to arrive at a just result” and there is a deal to be said for the approach exhibited by Moffitt P in Tisalandis (at 439; 15) and by Brennan J in Lowe (at 617; 415) that “it is wrong to think that it is ‘more important that sentences should be proportionate to one another than that they should be proportionate to guilt’ ”.

159 One may add to the references in the first paragraph, the remarks of this Court in R v Steele (Court of Criminal Appeal, 17 April 1997, unreported):

The frequently cited passage from the judgment of Mason J is not authority for the proposition that in any case where such disparity is shown, a court of criminal appeal must reduce a co-offender’s sentence to one which is inadequate. It is authority for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender, the appellate court has a discretion to do so …

160 Although there are statements in Postiglione which at face value are inconsistent with this approach, none of the authorities to which I have just referred were considered in that case nor was there any reference to the situation where one of the sentences said to be disparate was grossly inadequate. In these circumstances, I see no reason not to follow the line of authority to which I have referred.

161 When regard is had to the enormity of the crime that the appellant committed, it seems to me that any sense of grievance he may have at the fact that his co-offender received a much lesser, and disparate, sentence, even if that sense of grievance can be described as ‘justifiable’, pales into insignificance by comparison. Furthermore, in the circumstances of this case, public confidence in the integrity of the administration of justice is just as likely to be eroded by this Court interfering to reduce the sentence it regards as otherwise appropriate for the appellant’s execution of another human being solely because the co-offender was dealt with leniently, as it would be if the sentence on the appellant is allowed to stand. In this case, the court’s discretion should be exercised so as not to interfere with the sentence imposed.

162 Because of the length of the sentence involved, the appellant should have leave to appeal against sentence but the appeal against sentence is also dismissed.

OoO

LAST UPDATED: 22/06/2000