Citation: Application by Garry Zane Glasby pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 130
Court: Supreme Court of New South Wales
Date: 16 February 2018
Judge(s): Lonergan J
Background
The applicant was convicted of murder following a jury trial before Sully J in April 1998. The Crown case was that he had contracted with the deceased's wife to kill her husband for money, and that he carried out the killing in the early hours of 7 November 1994. The applicant was sentenced to penal servitude for life.
Following conviction, the applicant pursued all available avenues of appeal. The Court of Criminal Appeal dismissed his appeal on conviction and sentence in June 2000, and the High Court refused special leave to appeal in April 2001. The applicant then brought this application under s 78 of the Crimes (Appeal and Review) Act 2001, seeking an inquiry into his conviction.
The application was supported by approximately 120 pages of written submissions, followed by a further tranche of reply submissions. Lonergan J noted that the material was repetitive and unfocused, requiring considerable time to read and distil into relevant issues.
Legal Issues
- Whether the application raised any doubt or question as to the applicant's guilt, any mitigating circumstance, or any part of the evidence, sufficient to warrant an inquiry under s 79(2) of the Crimes (Appeal and Review) Act 2001
- Whether any of the matters raised constituted special facts or circumstances justifying further action under s 79(2)
- Whether grounds previously litigated at trial and on appeal could found a fresh inquiry under s 79(3)
- Whether specific complaints, including issues about compelled spousal testimony, trial conduct, counsel competence, and alleged non-disclosure of listening device recordings, gave rise to any unease about the conviction
Decision
Lonergan J found that the vast majority of the matters raised by the applicant had already been comprehensively dealt with at trial and on appeal, a factor directly relevant under s 79(3) of the Act. The Court of Criminal Appeal had previously considered grounds including the compelled evidence of the applicant's wife under s 18 of the Evidence Act 1995, the trial judge's handling of that evidence, and whether the verdict was unsafe. Although the Court of Criminal Appeal identified an error in failing to direct the jury on a particular aspect of Mrs Glasby's evidence, it applied the proviso under s 6(1) of the Criminal Appeal Act 1912, finding the error did not deny the applicant a real chance of acquittal.
On the fresh grounds raised in this application, including complaints about trial counsel's competence, inadequate disclosure of listening device recordings, and the cross-examination of the applicant on his November 1994 statement, Lonergan J accepted the Attorney-General's submission that the applicant was bound by forensic decisions made by his counsel. No evidence was provided to demonstrate those decisions were unreasonable, and there was no basis to conclude they materially affected the outcome.
The complaint that listening devices had been installed at the applicant's home prior to the murder, with that material allegedly withheld, was unsupported by any evidence. Lonergan J accepted that no basis existed to infer such devices had been installed at the relevant time.
Having reviewed all grounds, Lonergan J stated she had no unease or disquiet about the applicant's guilt. She was not persuaded that any doubt or question arose as to his guilt, any mitigating circumstance, or any part of the evidence, and found no special facts or circumstances that justified taking further action.
Orders Made
- The application was refused.
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001, an application for inquiry into conviction will be refused where the judge is not persuaded that any doubt or question arises as to guilt, any mitigating circumstance, or any part of the evidence, and no special facts or circumstances justify further action.
- The fact that grounds have already been comprehensively addressed at trial and on appeal is directly relevant to the assessment under s 79(3) and weighs against granting an inquiry.
- A convicted person is generally bound by the forensic decisions of their counsel at trial and on appeal; bare assertions of incompetent representation, unsupported by evidence, will not suffice to establish a ground for inquiry.
- No error was established in the prior proceedings by the complaints about spousal testimony, disclosure of recordings, or cross-examination conduct, particularly given the strength of the Crown case overall.
- Repetitive or unfocused written submissions do not expand the grounds available to an applicant; the court will identify and address only the legally relevant issues within the material provided.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 18
- Criminal Law Amendment Act 1883 (NSW), s 383
Cases:
- Regina v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83
- Glasby v The Queen S163/2000 [2001] HCATrans 143
- Application by Ali Hussein pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1855
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Sinkovich v Attorney General for the State of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Varley v Attorney-General (NSW) (1987) 8 NSWLR 30
- Crofts v R (1996) 186 CLR 427; [1996] HCA 22
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
- R v Birks (1990) 19 NSWLR 677
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35