ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Criminal Law-Appeal-New trial-Miscarriage of justice-Discovery of fresh
evidence-Crimes Act 1928 (Vict.) (No. 3664), sec. 594.
The chief evidence implicating a prisoner upon a charge of murder consisted in a piece of paper which shortly before the date of the crime had been in his Mar. 21, 22. possession and was found beside the bodies of the victims. Some further circumstances were also relied upon by the prosecution, and among them the discovery near the scene of the crime of a bicycle pump which might have belonged to a bicycle ridden by the prisoner on the night of the crime. The bicycle, which on the day after the crime was seen to have lost its pump, belonged to a boy who swore at the coroner's inquest that the pump was not his and who described his own pump in terms indicating that it differed in appearance from the one which had been found. Later another pump was produced to the police by persons living in the vicinity of the prisoner's house as having been found by their children close at hand; it corresponded with the description given by the boy at the inquest, but it would not fit between the attachments on the bicycle. The Crown Prosecutor made the proofs of this evidence available to the prisoner's counsel but told him that he would not call it or the boy. The prisoner's counsel elicited from a police witness the fact that the second pump had been handed in as found at a specified place, and the prisoner swore that it was similar to the pump belonging to the bicycle and that he had lost that pump on the day of, but before the time of, the commission of the crime. The prisoner's counsel did not call the boy or the evidence of the finding of the pump. The prisoner was convicted and appealed on the ground that this further evidence was material and that,
having regard to it, the reliance by the Crown on the finding of the first pump had resulted in a miscarriage of justice. The Court of Criminal Appeal of Victoria, by a majority, refused a new trial.
Held that the case was not one in which the High Court should grant special leave to appeal.
Observations on the circumstances in which a new trial should be granted in criminal proceedings on the ground of the discovery of fresh evidence.
Special leave to appeal from the decision of the Court of Criminal Appeal of Victoria refused.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of Victoria.
On 24th February 1939 the prisoner, George Green, was convicted in the Supreme Court of Victoria before Lowe J. and a jury of the murder of two women, Annie Constance Wiseman and Phyllis Vivian Wiseman. The prisoner was a sweep living at Heidelberg. The murders were alleged to have been committed…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Green v The King [1939] HCA 4
Case
[1939] HCA 4
Decision Date
CaseChat Overview and Summary
The applicant, George Green, sought special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of Victoria. Green had been convicted of murder in the Supreme Court of Victoria. The Court of Criminal Appeal, by a majority, had refused his appeal against conviction, which was based, in part, on the discovery of fresh evidence.
The legal issues before the High Court concerned whether special leave to appeal should be granted, particularly in light of the alleged fresh evidence relating to bicycle pumps found near the crime scene and the prisoner's residence. The court was also required to consider whether the admission of certain photographs of the victims and the exclusion of specific evidence constituted a miscarriage of justice, thereby warranting a new trial.
The High Court, by a majority, refused special leave to appeal. The majority judges held that the alleged fresh evidence was available to the defence at trial and that, even if believed, it would not have been decisive or of sufficient weight to alter the outcome, given the strength of the other evidence implicating the accused. They emphasised that new trials are not readily granted on the ground of fresh evidence, especially when that evidence was available or could have been discovered with reasonable diligence. The court also found no reason to hold that the admitted photographs or excluded evidence were inadmissible or that the summing-up was misleading, concluding that no miscarriage of justice had occurred.