Glennon v The Queen [1994] HCA 7

High Court of Australia Mason C.J. Brennan, Deane, Toohey and Gaudron JJ. Glennon v The Queen [1994] HCA 7

ORDER 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 appeal to that Court be allowed in relation to count 14, the applicant's conviction on count 14 be quashed, and a new trial on that count be held.

The following written judgments were delivered:—

1994, March 9 Mason C.J., Brennan and Toohey JJ.

This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of Victoria (Phillips C.J., Brooking and Marks JJ.) whereby that Court refused to quash certain convictions. The applicant had been charged with a number of sexual offences involving young people. In relation to three of the counts, which alleged indecent assaults on Jennifer Behnk, Franco Palmieri and Rocco Valotta, the applicant, in his interviews with police, exercised his right to silence and declined to answer questions relating to the alleged offences. In the trial judge's charge to the jury, the trial judge made reference to the applicant's exercise of his right to silence in a way conceded by the Crown to violate the principles laid down by this Court in Petty v. The Queen [1] . On appeal, the Court of Criminal Appeal held that the trial judge's direction was erroneous. However, the Court exercised its discretion under s. 568(1) of the Crimes Act 1958 (Vict.) and held that, as there had been no miscarriage of justice, the applicant's convictions should not be quashed.

1. (1991) 173 C.L.R. 95.

During the hearing of the application in this Court, the Court refused special leave to appeal against the conviction relating to the offences against Behnk and Valotta. Thus, the only outstanding question concerns the conviction in relation to the offence concerning Palmieri. In so refusing special leave in relation to Behnk and Valotta, the Court disposed of the question whether the trial judge's error in relation to Palmieri infected the other counts on which the applicant was convicted. However, given the view we take of this case in so far as it relates to the conviction for offences involving Palmieri, it is desirable to deal with the issue of infection of other counts in these reasons.