Green v The Queen

[1985] HCA 53

HIGH COURT OF AUSTRALIA

Mason A.C.J., Wilson, Brennan, Deane, and Dawson JJ.

RICKY GREEN v. THE QUEEN

3 September 1985

Decision

MASON A.C.J., WILSON, BRENNAN, DEANE, DAWSON JJ.: This application for special leave to appeal seeks to raise two grounds of appeal. The first is that on the trial arising from the plea of not guilty the trial judge should have excluded the statement made by the applicant on the trial arising from the plea of pardon. The applicant submits that the trial judge should have applied the principle said to have been established by Reg. v. Brophy (1982) AC 476. There the House of Lords declined to follow Reg. v. Wright (1969) SASR 256, holding that evidence given by the accused on a voir dire examination should not have been admitted against him before the jury at the trial itself. The conflict between Brophy and Wright is a point of such general importance that it would, in a suitable case, attract the grant of special leave.

2. But the question whether the Brophy principle, assuming it to be correct, applies to the situation which arose in this case, raises different considerations. The applicant's statement was made voluntarily in the presence of a jury on the trial by that jury of the issue of pardon, a trial to which the applicant did not object. The statement was therefore made in circumstances which are different from the giving of evidence on a voir dire as an incident in a substantive trial for the purpose of determining the admissibility of a confessional statement made by an accused person. Nevertheless, had the applicant argued at first instance, as he sought unsuccessfully to argue for the first time in this Court, that the plea of pardon should be tried by the judge alone, the point which he now seeks to raise might have warranted the grant of special leave. However, the matter was not pursued in this way at the trial. Moreover, the point now sought to be raised was neither argued in the Court of Criminal Appeal nor raised in the notice of appeal to that Court. This case is therefore not an appropriate vehicle for determination of the point.

3. The second matter raised is that the trial judge was in error in refusing a stay of proceedings on the ground of abuse of process. This submission is based on the fact that the applicant surrendered himself to the authorities and gave his version of events after he had learned that he would be given a pardon provided that he was not responsible for the murder of the deceased. It is sufficient for us to say that we are satisfied that the trial judge was correct in concluding that there was no abuse of process.

4. Accordingly, the application for special leave is refused.

Orders

Application for special leave to appeal refused.