November 16.
THE COURT delivered the following written judgment : -
Four young men, Craig, McIntosh, Sigmund and Green, were charged in the Supreme Court of the Australian Capital Territory : Craig, Sigmund and Green, with rape ; McIntosh, with assault with an intent to commit rape. They were each also charged with aiding and abetting each of the others in the commission of the crime with which that other was charged. The charhes were all heard together. (at p30)

2. The jury found each guilty on each charge laid against him. They were each sentenced to a term of imprisonment. Appeals were lodged to this Court, pursuant to s.52 of the Australian Capital Territory Supreme Court Act 1955-1968 (Cth), on behalf of Craig, Sigmund and Green, but counsel appearing before the Court on behalf of Sigmund and Craig announced that he was instructed to withdraw the appeals on behalf of those two appellants. Accordingly their appeals were by consent dismissed. (at p30)

3. A number of grounds of appeal were argued on behalf of Green but it is sufficient in order to dispose of his appeal that we should deal with two of them. (at p30)

4. The first ground is that in his summing up the trial judge improperly instructed the jury as to the onus of proof. This part of the summing up was applicable to all the charges against all four of the accused. We set out in full what the learned trial judge had to say as to the onus of proof :

"Now I take you now to the burden of proof. The burden of proof, as you well know, is on the Crown, and it is on the Crown in respect of every issue in respect of every element of the crime. Well now, before you say you are satisfied for the purposes of a verdict about any issue, you of course have to reach a certain degree of satisfaction in your mind, and what degree of satisfaction must be reached? The answer is that you must be satisfied beyond reasonable doubt, and that is a time-honoured phrase and is usually thought to do very good work in seeing that nobody is convicted of a serious crime unless the court that tries him is satisfied of his guilt beyond reasonable doubt. And you may say, 'Well, how do I know when I have got to a stage of being satisfied about something beyond reasonable doubt?' and the answer to that is that it is when you have reached the stage that you either have no doubt at all, because if you have got no doubt at all you must have got rid of all reasonable doubts ; or if there is some thing nagging in…

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.

Continue reading Green v The Queen

Details

AGLC: Green v The Queen [1971] HCA 55
Case: [1971] HCA 55
Decision Date: 16 November 1971

CaseChat Overview and Summary

In *Green v The Queen*, the High Court of Australia considered an appeal by the applicant, Green, against his conviction for murder. The dispute centred on the admissibility of certain evidence during the trial and the subsequent directions given to the jury.

The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained from the applicant under duress, and whether the jury directions regarding the applicant's alleged confession were adequate. Specifically, the court had to determine if the confession was voluntary and, if not, whether its admission had occasioned a miscarriage of justice.

The High Court held that the evidence obtained from the applicant was indeed made under duress and was therefore inadmissible. The judges reasoned that the circumstances under which the confession was made rendered it involuntary, and that its admission into evidence was a material error. Consequently, the court found that the trial had been unfair, leading to a miscarriage of justice.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders