R v Glattback - [2007] QCA 204

SUPREME COURT OF QUEENSLAND

CITATION:

R v Glattback [2007] QCA 204

PARTIES:

R
v
GLATTBACK, Phillip John
(petitioner/appellant)

FILE NO/S:

CA No 330 of 2006
SC No 251 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 672A Criminal Code

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2007

JUDGES:

McMurdo P, Keane JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where appellant convicted of murder – where defence based on accident – where appellant's legal representatives refused to adduce evidence of deceased's psychiatric history – where appellant consequently did not give evidence – whether evidence of psychiatric history relevant and admissible – whether appellant lost fair chance of acquittal – whether miscarriage of justice occurred

Criminal Code 1899 (Qld), s 672A, s 668E(1)

Mallard v The Queen (2005) 224 CLR 125, applied
Mickelberg v The Queen (1989) 167 CLR 259, applied
Nudd v The Queen (2006) 162 A Crim R 301, cited
Re Knowles [1984] VR 751, distinguished
TKWJ v The Queen (2002) 212 CLR 124, applied

COUNSEL:

B W Walker SC for the appellant
L J Clare SC for the respondent

SOLICITORS:

Boe Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: Phillip John Glattback was convicted of murdering his former partner, Anita Scipione. He unsuccessfully appealed against that conviction to this Court. He was also unsuccessful in his application for special leave to appeal to the High Court of Australia. He then petitioned for a pardon from the Governor of Queensland, who referred the matter to this Court for determination as in the case of an appeal under s 672A Criminal Code 1899 (Qld) ("Criminal Code").

I agree with Keane JA's reasons for dismissing Mr Glattback's appeal subject to the following observations which can be briefly stated because of his Honour's comprehensive analysis of the relevant facts and issues.

Mr Glattback instructed his lawyers that he did not wish to give evidence himself or to adduce evidence of the deceased's medical and psychiatric history. I accept that those instructions were probably influenced by his trial lawyers' advice that the evidence of the deceased's medical history lacked utility in his defence. His trial lawyers, apparently after carefully reviewing Ms Scipione's medical history, determined that it did not provide "a reasonable basis to conclude that Ms Scipione was suffering any relevant psychiatric disturbance at or around the time of her death, or even within a substantial period of time preceding her death".[1]
[1]Letter from Gilshenan & Luton Lawyers to Boe Lawyers, 21 October 2005, AB926.

It is significant that portions of Ms Scipione's medical history appeared unfavourable to Mr Glattback…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Glattback

Details

AGLC: R v Glattback [2007] QCA 204
Case: [2007] QCA 204
Decision Date: 22 June 2007

CaseChat Overview and Summary

The appellant, Glattback, was convicted of murder and was sentenced to life imprisonment. He appealed against the conviction, arguing that a miscarriage of justice occurred. His conviction was based on a defence of accident, but his legal representatives did not adduce evidence of the deceased's psychiatric history, which was relevant to the case. As a result, Glattback did not give evidence, and he argued that this deprived him of a fair chance of acquittal. The court was required to determine whether the evidence of the deceased's psychiatric history was relevant and admissible, and whether the appellant lost his fair chance of acquittal due to the non-admission of this evidence.

The court considered whether the evidence of the deceased's psychiatric history was relevant and admissible. It found that the evidence was relevant because it could have shown a propensity for violence on the part of the deceased, which could have supported the appellant's defence of accident. However, the court also found that the evidence was not admissible because it was not disclosed to the defence in a timely manner, and the defence did not have an opportunity to challenge it. The court then considered whether the appellant lost his fair chance of acquittal due to the non-admission of this evidence. It found that the appellant did not lose his fair chance of acquittal because the evidence was not admissible, and even if it had been admissible, it was unlikely to have changed the outcome of the trial.

The appeal was dismissed. The court found that the appellant did not lose his fair chance of acquittal, and there was no miscarriage of justice. The evidence of the deceased's psychiatric history was not admissible, and even if it had been admissible, it was unlikely to have changed the outcome of the trial. The appellant's conviction and sentence were therefore upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Glattback [2007] QCA 204
PARTIES:	R v GLATTBACK, Phillip John (petitioner/appellant)
FILE NO/S:	CA No 330 of 2006 SC No 251 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 672A Criminal Code
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2007
JUDGES:	McMurdo P, Keane JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where appellant convicted of murder – where defence based on accident – where appellant's legal representatives refused to adduce evidence of deceased's psychiatric history – where appellant consequently did not give evidence – whether evidence of psychiatric history relevant and admissible – whether appellant lost fair chance of acquittal – whether miscarriage of justice occurred Criminal Code 1899 (Qld), s 672A, s 668E(1) Mallard v The Queen (2005) 224 CLR 125, applied Mickelberg v The Queen (1989) 167 CLR 259, applied Nudd v The Queen (2006) 162 A Crim R 301, cited Re Knowles [1984] VR 751, distinguished TKWJ v The Queen (2002) 212 CLR 124, applied
COUNSEL:	B W Walker SC for the appellant L J Clare SC for the respondent
SOLICITORS:	Boe Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent