R v Glennon (No 3) - [2005] VSCA 262

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 310 of 2003
309 of 2003

THE QUEEN
	v.
MICHAEL CHARLES GLENNON (NO. 3)

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 October 2005
DATE OF JUDGMENT:	17 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 262

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Criminal law – Sexual offences against children – Two separate trials – Propensity warning omitted in relation to evidence of uncharged acts – Observation by judge, in relation to a previous acquittal, that a finding of not guilty is not a finding of innocence – Question asked of witness whether another witness was lying – Aggregation of defects or errors, none of which on its own would justify a new trial, causing first trial to miscarry – New trial directed - Directions regarding relationship evidence where there were three complainants – Directions regarding probability reasoning and innocent infection – Other grounds – No miscarriage of second trial – Whether sentence imposed following second trial offended principle of totality having regard to sentences previously imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr I.D. Hill, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Victoria Legal Aid

CALLAWAY, J.A.:

In 1999 the applicant faced three trials for sexual offences against children alleged to have been committed between 1973 and 1991. At the first trial he was convicted on 20 counts of indecent assault, three counts of attempted buggery of a person under 14 and one count of buggery. There were six complainants aged between 10 and 16 at the time of the offences. At the second trial he was convicted on one count of gross indecency, five counts of indecent assault and three counts of rape. At the third trial he was acquitted on one count and the jury were discharged in relation to the balance of the counts. A new presentment was filed over and the trial was adjourned.

On 17^th December 1999 the applicant was sentenced for the offences of which he had been convicted at the first and second trials. He applied for leave to appeal against conviction and sentence in relation to both trials. The applications succeeded in part.[1] A new trial was directed in relation to the counts the subject of the second trial. The total effective sentence of eight-and-a-half years’ imprisonment imposed in relation to the counts the subject of the first trial was affirmed and a non-parole period of six-and-a-half years was fixed.
[1]R. v. Glennon [No. 2] (2001) 7 V.R. 631.

Presentment C0001839 was filed over on 22^nd July 2003, preferring two counts of indecent assault (counts 1 and 3) and one count of rape in relation to a complainant whom I shall call “JC”. That presentment related to the new trial directed by the Court of Appeal. Presentment C00041839.1 was filed over on 21^st August 2003, preferring 16 counts of indecent assault (counts 1, 2, 3, 5, 6, 8,…

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 Glennon (No 3)

Details

AGLC: R v Glennon (No 3) [2005] VSCA 262
Case: [2005] VSCA 262
Decision Date: 17 November 2005

CaseChat Overview and Summary

The case of R v Glennon (No 3) involved the defendant, Glennon, who faced charges of sexual offences against children. The case proceeded through two separate trials, with Glennon being acquitted in the first trial and convicted in the second. The Court of Appeal was called upon to review the proceedings and outcomes of these trials. The central legal issues revolved around whether the errors in the first trial were significant enough to warrant a new trial, and whether the sentence imposed following the second trial adhered to the principle of totality.

The Court of Appeal determined that the first trial did indeed suffer from significant procedural errors, including the omission of a propensity warning in relation to evidence of uncharged acts, improper comments made by the judge regarding a previous acquittal, and inappropriate questioning of witnesses. The aggregation of these defects led the Court to conclude that the first trial was fundamentally flawed, resulting in a miscarriage of justice. Consequently, a new trial was ordered. The Court also addressed the trial directions in the second trial, particularly in relation to the evidence from three complainants, and the reasoning involving probability and the risk of innocent infection. Ultimately, the Court found that the second trial was conducted without any miscarriage of justice.

The Court of Appeal also examined whether the sentence imposed following the second trial adhered to the principle of totality, considering the sentences previously imposed. After careful consideration, the Court determined that the sentence was appropriate and did not contravene the principle of totality. The Court concluded that the errors in the first trial, while serious, did not undermine the validity of the conviction in the second trial.

The final orders of the Court of Appeal included the direction for a new trial due to the miscarriage of justice in the first trial, and the affirmation of the conviction and sentence from the second trial. The Court emphasised the importance of adhering to legal principles and procedural safeguards to ensure a fair trial.

Orders