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14
Court of Criminal Appeal 22 June 2000

Regina v Glasby

[2000] NSWCCA 83

Also reported as [2000] 115 A Crim R 465
Homicide
MURDER APPEAL ON CONVICTION COMPELLABILITY OF SPOUSE STATUTORY INTERPRETATION COMMON LAW PRESUMPTIONS S 18 EVIDENCE ACT 1995

Citation: [2000] NSWCCA 83; (2000) 115 A Crim R 465
Court: NSW Court of Criminal Appeal
Date: 22 June 2000
Judge(s): Stein JA, Hulme J, Greg James J

Background

The appellant was convicted of murdering a man in the early hours of 7 November 1994. The Crown case was that the killing was a contract murder, carried out at the instigation of the deceased's wife, who had engaged the appellant to kill her husband. The body was found in a parked vehicle near Lake Gillawarna, Georges Hall, with a gunshot wound to the head.

The appellant's wife had been arrested for the same murder on the same day. She gave sworn evidence at her own sentencing proceedings and was subsequently called by the Crown as a witness at the appellant's trial. Her evidence, and the circumstances under which she was compelled to give it, formed the central battleground of the conviction appeal.

Following conviction, Sully J sentenced the appellant to penal servitude for life. The appellant appealed against both conviction and sentence.

The court was asked to resolve the following questions:

  • Whether the trial judge erred in compelling the appellant's wife to give evidence against her wishes under s 18 of the Evidence Act 1995, and whether s 407 of the Crimes Act 1900 or the common law protected the appellant from that compulsion
  • Whether leave should have been granted to the Crown to cross-examine Mrs Glasby under s 38(1)(a) and (c) of the Evidence Act 1995
  • Whether the jury should have been directed, consistently with Lee v The Queen (1998) 195 CLR 594, that Mrs Glasby's evidence of what the appellant told her was not evidence of the truth of those statements
  • Whether the trial judge misdirected the jury on the onus of proof and on "accepting" the appellant's evidence
  • Whether the trial judge should have discharged the jury
  • On sentence: whether the case was properly characterised as among the worst examples of murder warranting a life sentence, and whether the sentence was disproportionate compared to the lesser sentence imposed on Mrs Glasby

Decision

Compellability of the spouse: The Court held that s 18 of the Evidence Act 1995 governed the compellability of spouses and that the statutory scheme made express provision for the circumstances in which a spouse could be required to give evidence. Neither s 407 of the Crimes Act 1900 nor the common law conferred any enforceable right on the appellant to prevent his wife from being called. The statutory language was clear and there was no basis to read it down. The grant of leave under s 38 to cross-examine Mrs Glasby was a discretionary decision, and no miscarriage of that discretion was established.

Hearsay and the Lee direction: The Court accepted that the trial judge erred by failing to direct the jury, in accordance with Lee v The Queen, that Mrs Glasby's evidence of what the appellant had told her was not evidence of the truth of those statements. However, applying the proviso to s 6(1) of the Criminal Appeal Act 1912, the Court found the error did not constitute a fundamental miscarriage of justice and did not deny the appellant a real chance of acquittal. The conviction ground relating to this error therefore failed.

Remaining conviction grounds: Reading the summing-up as a whole, the Court found no real risk that the jury was confused about the onus of proof. The challenge to the trial judge's directions regarding the appellant's own evidence and the refusal to discharge the jury were also rejected. The ground that the verdict was unsafe and unsatisfactory likewise failed.

Sentence: The Court held it was open to the trial judge to impose the maximum sentence of life imprisonment given the appellant's culpability, applying Veen v The Queen (No 2) (1988) 164 CLR 465. The majority (Stein JA and Greg James J) rejected the parity argument: Mrs Glasby had pleaded guilty, her role in the murder was far less significant, and the objective gravity and subjective circumstances of the two offenders were markedly different. Hulme J, in separate reasons, found that any justifiable sense of grievance the appellant might feel about the disparity paled against the enormity of his offending, and that the court's discretion should not be exercised to interfere with the sentence.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 18 of the Evidence Act 1995, a spouse may be compelled to give evidence against an accused; neither s 407 of the Crimes Act 1900 nor the common law creates an enforceable right in the accused to prevent that compulsion, and the clear statutory language cannot be read down.

  • A failure to give a Lee v The Queen direction, that a witness's account of what the accused said is not evidence of the truth of those statements, constitutes legal error. However, such an error will not necessarily produce a successful appeal if the proviso applies and no real chance of acquittal was lost.

  • In dismissing the conviction appeal, the Court confirmed that the safety of a conviction is assessed by reading the summing-up as a whole, not by isolating individual passages that might be capable of misinterpretation.

  • A life sentence for murder does not require the case to be the single worst possible example of the offence; it suffices that the offender's culpability warrants the maximum, consistent with Veen v The Queen (No 2).

  • Parity of sentencing between co-offenders is not an absolute rule. Where the objective gravity and subjective circumstances of co-offenders differ substantially, including differences in role, plea, and culpability, a significant disparity in sentence may be entirely justified.

Legislation and Cases Referenced

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

Key cases:
- Lee v The Queen (1998) 195 CLR 594
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Postiglione v R (1997) 189 CLR 295
- Crofts v R (1996) 186 CLR 427
- Murphy v R (1989) 167 CLR 94
- Rodway v The Queen (1990) 169 CLR 515
- Jago v District Court of NSW (1989) 168 CLR 23
- Glennon v Regina (1994) 179 CLR 1
- Mraz v Regina (1955) 93 CLR 493
- R v Adam (1999) 47 NSWLR 267
- Fleming v R (1998) 73 ALJR 1