Glennon v The Queen [1994] HCA 7

Glennon v The Queen [1994] HCA 7

The trial judge's erroneous direction allowed the jury to use the applicant's failure to reveal his defence to police as a test of veracity. Although the error was not so fundamental that the trial was hardly a trial at all, count 14 depended essentially on credibility: the only prosecution evidence was Palmieri's evidence, while the applicant denied the allegation and called Dickason to support his account. In those circumstances it was impossible to say that the jury would inevitably have convicted absent the misdirection, and the applicant lost a fairly open chance of acquittal. The Court of Criminal Appeal therefore erred in applying the proviso to uphold the conviction on count 14.

Jurisdiction
Australia
Procedural Posture
Criminal Application for Special Leave to Appeal Against Conviction / High Court Special Leave Application and Appeal From the Court of Criminal Appeal of Victoria
Outcome
Application for special leave to appeal against conviction on count 14 granted; appeal allowed; conviction on count 14 quashed; new trial ordered on that count.
Legal Topics
['right to Silence' 'jury Directions' 'criminal Appeal Proviso' 'substantial Miscarriage of Justice' 'credibility of Accused' 'special Leave to Appeal']
['criminal Law' 'criminal Procedure' 'evidence'] ['right to Silence' 'jury Directions' 'criminal Appeal Proviso' 'substantial Miscarriage of Justice' 'credibility of Accused' 'special Leave to Appeal']

Case Brief

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Procedural Posture

Criminal Application for Special Leave to Appeal Against Conviction / High Court Special Leave Application and Appeal From the Court of Criminal Appeal of Victoria

Legal Issues

  1. 1 ["Whether the trial judge's direction concerning the applicant's exercise of the right to silence was erroneous." 'Whether the error was so fundamental that the proviso in s. 568(1) of the Crimes Act 1958 (Vict.) could not apply.' 'Whether, in relation to count 14 concerning Franco Palmieri, the jury would inevitably have convicted absent the erroneous direction.' "Whether the erroneous direction infected the jury's verdicts on other counts."]

Ratio Decidendi

The trial judge's erroneous direction allowed the jury to use the applicant's failure to reveal his defence to police as a test of veracity. Although the error was not so fundamental that the trial was hardly a trial at all, count 14 depended essentially on credibility: the only prosecution evidence was Palmieri's evidence, while the applicant denied the allegation and called Dickason to support his account. In those circumstances it was impossible to say that the jury would inevitably have convicted absent the misdirection, and the applicant lost a fairly open chance of acquittal. The Court of Criminal Appeal therefore erred in applying the proviso to uphold the conviction on count 14.

Court Disposition

Application for special leave to appeal against conviction on count 14 granted; appeal allowed; conviction on count 14 quashed; new trial ordered on that count.

Orders

  • ['Application for special leave to appeal against conviction on count 14 granted.' 'Appeal allowed.' "Set aside the decision of the Court of Criminal Appeal of the Supreme Court of Victoria dismissing the applicant's appeal against conviction in so far as it relates to count 14." "In lieu thereof, order that the...