Application by Garry Zane Glasby pursuant to s 78 of the Crimes (Appeal and Review) Act 2001

The Applicant seeks an inquiry into his conviction for the murder of John Albert Theissl on 6 November 1994. He makes this application pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW).

The Applicant initially submitted approximately 120 pages of closely typed, unparagraphed written submissions in support of his application. This was followed by a further tranche of submissions sent on 17 October 2017 that were stated to be in reply to the written submissions of the Attorney-General dated 8 March 2017.

A great deal of the second tranche of submissions repeats the initiating submissions. There were some additional points raised with which I will deal later in this judgment.

The Applicant was indicted before Sully J on a charge that on 6 November 1994, he murdered John Albert Theissl. He pleaded not guilty and was tried before his Honour and a jury of twelve. The trial commenced on 26 March 1998 and on 24 April 1998, the Applicant was found guilty of murder and was sentenced on 11 June 1998 by Sully J to penal servitude for life.

A subsequent appeal from conviction was heard on 27 October 1999, and on 22 June 2000, the Court comprising Stein JA, Hulme and James JJ dismissed the appeal (Regina v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83).

The grounds of appeal related to both conviction and sentence.

The grounds of appeal were initially 12 in number but were reduced to nine. Those grounds included canvassing the requiring of the Applicant’s wife, Suzette Louise Glasby to give evidence contrary to her wishes (pursuant to s 18 of the Evidence Act 1995 (NSW)). Other grounds dealt with an asserted error in the way the trial Judge dealt with Mrs Glasby’s evidence. It was argued that the trial Judge should have discharged the jury, and that the verdict was unsafe and unsatisfactory. I will return to the grounds of appeal later in this judgment as the detail of the matters considered in that appeal, and the fact that they were comprehensively dealt with by the Court of Criminal Appeal, is directly relevant to this application.

The appeal was unsuccessful. The Court of Criminal Appeal held that while there was error in relation to the failure to direct the jury in relation to Mrs Glasby’s evidence from her sentencing hearing, that error did not deny the Applicant a real chance of acquittal, and the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) was applied.

The life sentence given by Sully J was also subject to appeal but that ground of appeal was dismissed.

An application to the High Court of Australia for special leave to appeal was dismissed in April 2001. The Applicant is currently serving his life sentence.

This factual background is extracted from Regina v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83:

The Applicant gave evidence and was cross-examined as the trial. He said that he did not kill the deceased, but that he was present when there was a discussion about the killing of Theissl between an acquaintance, “Gallagher”, and a Mr Loveday.

Nine grounds of appeal were argued by counsel for the Applicant. The first two related to the compellability of Mrs Glasby to give evidence at her husband’s trial. Those grounds were thoroughly dealt with and rejected by the Court in its joint judgment dated 22 June 2000.

Ground 3 related to leave to cross-examine Mrs Glasby under s 38 of the Evidence Act. This argument was dealt with in detail in the judgment, [56]-[62] inclusive. It was determined that there was no merit in this ground, that the trial Judge’s decision to grant leave pursuant to s 38(1)(a) and (c) was entirely appropriate and was a discretionary decision which had not miscarried.

Grounds 4, 5 and 6 related to the use of Mrs Glasby’s evidence at the trial. The Court dealt with these grounds in detail in [63]-[98] of the judgment. Whilst recognising that with the hindsight of Lee’s Case it is apparent that many of the representations by Mrs Glasby should not have been admitted, or if admitted clear directions should have been given to the jury of the purpose of the evidence and the use sought to be made of it ([84]), in considering whether the Applicant had lost a chance of being acquitted which was fairly open to him by reason of the error, the Court concluded at [98] that there was no such loss:

Ground 7 was abandoned. Ground 8 was framed based on some language used by the trial Judge regarding the “accepting” of the evidence of the Applicant. It was asserted that the trial Judge erred in law in misdirecting the jury as to the need for the Applicant’s evidence to be accepted and that by saying this, the onus of proof had been reversed. This ground was rejected because when reading the summing up as a whole, it was “impossible to see how the jury could have been under any misapprehension as to who had the onus of proof” [104].

Ground 9 argued that the jury should have been discharged because of various remarks made in the presence of the jury by Mrs Glasby while she was giving evidence. This ground was analysed in detail in [105]-[129]. Applying the test in Crofts v R (1996) 186 CLR 427 at 441; 88 A Crim R 232 at 242; [1996] HCA 22, the question was not whether the trial Judge’s refusal to discharge the jury was correct, but whether it occasioned the risk of a substantial miscarriage of justice. The Court said that there was nothing in the evidence, or in the other matters arising under or relevant to that ground which, considered alone or in conjunction with matters previously dealt with, persuaded the Court that this question should not be answered in favour of the Crown. The Court concluded at [129], “Indeed, we are positively persuaded that there was no miscarriage of justice”.

Grounds 10 and 11 were not pressed. The overarching assertion made in Ground 12, that the verdict was unsafe and unsatisfactory, was dismissed, as it was posited on the basis that if Mrs Glasby’s evidence was excluded, the verdict was unsafe and unsatisfactory. In light of the conclusions the Court had already reached, that ground also failed.

The Applicant filed proceedings in the High Court on 16 August 2000 seeking special leave to appeal and formulating the question for special leave as follows:

The application was dismissed on 6 April 2001 after oral submissions from counsel for the Applicant (Glasby v The Queen S163/2000 [2001] HCATrans 143). The Respondent was not called upon. The Court comprising Gleeson CJ and Kirby J stated that:

Section 78 of the Crimes (Appeal and Review) Act 2001 (NSW) provides that an application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

Section 79 of the Act provides for consideration of such applications:

The type of referral or direction under sub-s (1) may only be made if, after considering the application, I am of the view that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case.

Pursuant to sub-s (3), I may refuse to consider or otherwise deal with the application for reasons including if it appears the matter has been fully dealt with in the proceedings giving rise to the conviction or sentence, or in any proceedings on appeal from the conviction or sentence (s 79(3)(a)(i)). I am not satisfied that there are special facts or special circumstances that justify the taking of further action (s 79(3)(b)).

Consideration of an application such as this pursuant to Pt 7 of the Act is administrative, not judicial in nature (s 79(4); Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 at 48-50; 24 A Crim R 413 at 431-432; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 361-362 [124]; 140 A Crim R 472 at 506-507 [124]; [2003] HCA 28 at [124].

Part 7 of the Act is remedial in nature and provides a mechanism by which an individual may seek to address some material doubt about the legitimacy of his or her conviction or sentence: see Wilson J in Application by Ali Hussein pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1855 (“Hussein”) at [39], referencing Basten JA in Sinkovich v Attorney General for the State of New South Wales (2013) 85 NSWLR 783 at 796 [52]; 238 A Crim R 323 at 336 [52]; [2013] NSWCA 383 at [52].

As explained by Wilson J in Hussein, the legislative background to Pt 7 of the Act came from s 383 of the Criminal Law Amendment Act 1883 (NSW) at a time when there was no formalised process for appeal against conviction or sentence, or for judicial or executive review. In 1912, the Criminal Appeal Act brought with it a more general right of appeal. It is evident that Pt 7 of the Act is not intended to operate as a substitute for the appeals process. As Johnson J said in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [9]:

I have borne in mind these principles and considerations in making my decision to dismiss this application.

The Applicant’s submissions and appeal grounds were included in one long document and asserted multiple legal authorities from both Australia and England that were all irrelevant. To the extent that complaints can be gleaned from the submissions, as they are not extracted, enumerated or clearly identified or distinguished in any discrete fashion, the complaints seem to be as follows:

The submissions also requested the issuing of approximately 60-70 subpoenas, the relevance of which was very difficult to follow.

A further tranche of submissions was sent by the Applicant in October 2017, purportedly in response to the submissions provided by the Crown in March. These submissions repeated much of the applicant’s material in the initial submissions. However, some further complaints were made: allegations about there being “no compellability of paedophiles” at the Royal Commission into Institutional Responses to Child Sexual Abuse, taking issue regarding the validity of s 18 of the Evidence Act because parliamentarians in place at the time of its enactment may not have had any right to sit due to dual citizenship, and appending documents purported to be letters handwritten by Jason Ringrose. The Applicant asserts that these letters are “an admission” that Jason Ringrose was at Lake Gillawarna on the night of the murder but had been “protected” because Ringrose’s brother was a police officer.

Four undated handwritten letters signed by “Jace” or “Jason” were attached. There is no reference within them to any knowledge of what occurred on the night of the murder. The only relevant content seems to be a vague reference to being in a particular place smoking drugs in a car on an unspecified date; possibly the night of the murder:

As can be seen from the framing of the extracted complaints set out in [29] of this judgment, the vast majority of matters raised in the application and submissions are essentially complaints about the result in the Court of Criminal Appeal and the refusal of the High Court to grant special leave to further pursue some of those complaints.

Items that I have numbered 1 and 7 in [29] relate to decisions made by counsel at trial or on appeal to “not run” evidence the Applicant wanted to put before the Court, or complaining that his counsel were incompetent. As stated by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 683-685; 48 A Crim R 385 at 390-392, a litigant is bound by the decision of his counsel:

The principle was articulated by the High Court this way in The Queen v Baden-Clay (2016) 258 CLR 308 at 324 [48]; 256 A Crim R 132 at 142 [48]; [2016] HCA 35 at [48]:

Items 8, 9 and 10 were all within the remit of matters that were or either directly or implicitly raised in the appeal. Items 11, 12 and 13 were clearly raised on appeal and were canvassed extensively in the judgment of that Court.

The letters purported to be by a person called Jason Ringrose do not progress the matter at all as they are unverified and non-specific, and seem to disavow on their face the very matter the Applicant suggests they support, i.e. that Ringrose witnessed the death of Theissl.

Complaints regarding access to tape players during the trial are matters about which I can form no view other than to note that, at the trial, the Applicant was represented by highly competent Senior Counsel. The complaint made now has no merit.

The additional matters raised in the October 2017 submissions, namely the failure to “compel paedophiles” to give evidence at the Royal Commission, and the argument for invalidity of the Evidence Act because of the dual citizenship issue possibly relating to parliamentarians who passed that legislation are irrelevant and/or entirely without merit and do not warrant any further analysis.

The Attorney-General submitted that there appeared to be six areas of content in the Applicant’s submissions as follows: First, that Mrs Glasby was not lawfully compellable as a witness to give evidence in the Crown’s case against him. Second, that Mrs Glasby’s evidence was wrongly admitted. Third, that matters relevant to Mrs Glasby’s credit and reliability that were not raised in the trial. Fourth, evidence about a handwritten statement that the Applicant signed on 3 November 1994 and the cross-examination of the Applicant about that statement was not properly dealt with. Fifth, inadequate disclosure of listening device recordings. Sixth, the competency of the Applicant’s representatives at trial and in the appeal.

It was submitted as a matter of general principle that the Applicant is bound by the forensic decisions made by his counsel. Second, it was said that there is no basis to infer that any forensic decision made by them was unreasonable, and no evidence had been provided in support of any contention to that effect. I accept each of the propositions as correct.

I also accept the submissions that there was no basis to conclude that the matters raised would have materially impacted the outcome of the trial or the subsequent appeal, particularly having regard to the totality of the evidence of the Crown case.

The Applicant’s complaint that he was denied the use of a prison tape player prior to his trial, that not all the listening device recordings were disclosed, and that listening devices were employed at his home address at Carramar at the time Mr Theissl was killed, but that material was withheld is not supported by any evidence. In particular, it is not clear on what basis the Applicant asserts that listening devices were installed in his residence prior to Mr Theissl’s death. I accept this submission and the overarching submission that no appearance of a doubt or question arises with respect to the Applicant’s guilt or any part of the evidence in the Applicant’s case on the basis of these complaints.

Whilst this judgment is not long, a large amount of time was required to read, dissect, and extract relevant issues from the material put forward in support of this application. The written submissions were repetitive and unfocussed.

It is evident that the vast majority of matters raised by the Applicant have been comprehensively dealt with at trial and on appeal (s 79(3)).

I have no unease or disquiet about the Applicant’s guilt, and in the terms of s 79(2), I am not persuaded that there is any doubt or question as to his guilt or as to any mitigating circumstance in the case, or as to any part of the evidence in this case, and I am satisfied that there are no special facts or circumstances that justify the taking of any further action.

The application is refused.