Glassie v The Queen

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 79/2018
[2018] NZSC 101

BETWEEN	ESTALL JHANA GLASSIE Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	I M Brookie for Applicant J C Pike QC for Respondent
Judgment:	30 October 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was charged with nine counts involving violence and sexual violation in relation to his partner, said to have been committed over a two day period in April 2016. At the commencement of his District Court jury trial, he pleaded guilty to three of the six violence charges and the jury found him guilty on all other charges. The trial judge, Judge M E Sharp, sentenced him to imprisonment for 12 years and eight months.[1] The applicant appealed to the Court of Appeal raising three grounds of appeal. All of these grounds failed and the appeal was dismissed.[2] He now seeks leave to appeal against the Court of Appeal decision, but only in relation to one of the grounds of appeal rejected by the Court of Appeal.
[1]R v Glassie [2017] NZDC 27391 (Judge M E Sharp).
[2]Glassie v R [2018] NZCA 308 [CA judgment] (Williams, Wylie and Thomas JJ).
The proposed ground of appeal relates to the comments made by the prosecutor at the trial about the complainant having no motive to lie and the directions made by the Judge in relation to that comment. The prosecutor qualified her comment about the complainant not having a motive to lie by noting by there was no onus on a defendant to prove motive as to why a complainant may have exaggerated or made up her account. The Judge directed the jury that, regardless of the absence of evidence of motive to lie, the onus of proof remained on the Crown throughout and there was no onus on the defence to prove a motive to lie.
In the Court of Appeal the applicant argued that the Judge should have told the jury to set aside the Crown’s submission in relation to the lack of a motive to lie entirely. The Court of Appeal rejected this, referring to the leading authority.[3] The Court rejected the submission that the Judge was required to direct the jury to set the submission to one side and concluded that the direction given had been appropriate.
[3]R v Tennant [1998] 2 NZLR 257 (CA).
In support of his application, the applicant argues that there is difficulty with the application of the leading authorities, R v Tennant, R v M and R v E (CA 308/06).[4] He seeks to argue that, because the absence of a motive to lie was characterised by the prosecutor as being one of the three main reasons why the complainant should be believed, the motive to lie issue became a “special feature” of the Crown closing address. This meant that a different approach from that taken in R v Tennant and R v M was required, given the comment made by the Court of Appeal in R v M that no direction on the issue of motive to lie will usually be necessary “if the inquiry is made briefly and in a low-key way and the point is not made a special feature of the Crown’s closing address”.[5]
[4]R v Tennant, above n 3; R v M (2000) 18 CRNZ 368 (CA); R v E (CA 308/06) [2007] NZCA 404, [2008] 3 NZLR 145.
[5]R v M, above n 4, at [11].
The Court of Appeal rejected this submission on the facts, finding that the comments made by the prosecutor in the present case were suitably moderate, and qualified by a reminder to the jury that the submission being made did not shift the onus of proof.[6]
[6]CA judgment, above 2, at [43].
We do not consider that there sufficient prospect of success on the argument that the prosecutor made a special feature of the absence of a motive to lie to justify the granting of leave to appeal on this issue to this Court. Nor do we consider that the law is so unclear that a point of public importance arises in relation to this issue.
We therefore dismiss the application for leave to appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

Glassie v The Queen involved a case where the applicant was charged with multiple counts of violence and sexual violation against his partner. The case was heard by the Supreme Court of New Zealand, with William Young, Glazebrook, and O'Regan JJ presiding. The applicant had previously pleaded guilty to three of the charges and was found guilty on the rest by a jury. He was sentenced to 12 years and 8 months in prison. The applicant appealed to the Court of Appeal but was unsuccessful. He then sought leave to appeal to the Supreme Court, focusing on a specific issue regarding comments made by the prosecutor about the complainant's credibility and the judge's direction to the jury.

The legal issue before the court was whether the trial judge should have directed the jury to disregard the prosecutor's comments about the complainant's lack of motive to lie. The applicant argued that the prosecutor had made this a "special feature" of their closing address, which required a different approach to the directions given to the jury. The Court of Appeal had already dismissed this argument, and the applicant sought to challenge that decision in the Supreme Court. The central question was whether the court should grant leave to appeal on the basis that the prosecutor's comments warranted a different judicial direction.

The Supreme Court found that the prosecutor's comments were appropriately moderate and did not shift the onus of proof from the Crown. The Court of Appeal had correctly concluded that the trial judge's directions were appropriate. The Supreme Court did not find a sufficient prospect of success on the argument that the prosecutor had made the issue of the complainant's motive to lie a "special feature" of their address, nor did it consider that the law was unclear enough to justify a point of public importance. Consequently, the Supreme Court dismissed the application for leave to appeal.

In conclusion, the Supreme Court upheld the earlier decision of the Court of Appeal and did not grant the applicant leave to appeal. The Court maintained that the trial judge's directions were adequate, and the prosecutor's comments did not necessitate a different approach. The Supreme Court's decision affirmed the applicant's sentence and conviction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established