Green v The Queen - [2007] HCATrans 110

[2007] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D12 of 2006

B e t w e e n -
HARRISON GREEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 MARCH 2007, AT 2.23 PM

MR D. GRACE, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by the Northern Territory Legal Aid Commission)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory: If the Court pleases, I appear with my learned friend, MR D.N. LEWIS, on behalf of the respondent. (instructed by Director of Public Prosecutions (Northern Territory))

HAYNE J: Yes. Yes, Mr Grace.

MR GRACE: Your Honours, the general sentencing principle relevant to this application is that a sentencing court should apply the sentencing standards applicable at the time of the commission of the offence when sentencing many years after the date of commission of that offence. The question is whether that general principle has been qualified in any way by the Northern Territory legislative scheme for indefinite sentences. At paragraph [61] at application book page 86 his Honour the Chief Justice says this:

Finally, regard must be had to the direction in s 74(1)(b) that when imposing the determinate sentence, the Supreme Court “shall … sentence the offender under [the Sentencing Act] for the violent offence for which the indefinite sentence was imposed”. This is a direct instruction to the court to apply the provisions of the Act at the time of imposing the determinate sentence. The Legislature has chosen to apply the sentencing law found in the Sentencing Act at the time of the imposition of sentence rather than the sentencing law as it stood at the time the offence was committed.

If I could turn specifically to that subsection in the legislation, your Honours. Section 74 of the Sentencing Act 1995 (NT) provides as follows:

(1)      Unless it is satisfied to a high degree of probability that the offender is still a serious danger to the community when a review is made under section 72 or 73, the Supreme Court shall –
(a)      order that the indefinite sentence is discharged; and
(b)      sentence the offender under this Act for the violent offence for which the indefinite sentence was imposed.

There is no legislative warrant, it is submitted, for the Chief Justice’s conclusion that there is a legislative intention evinced by section 74(1)(b) that the current sentencing standards apply in preference to the application of the general principle. Indeed, if one goes back to section 65 of the Act which gives the jurisdiction to the court imposing the indefinite sentence in the first place, subsection (2) provides that:

The Supreme Court may sentence an offender convicted of a violent offence or violent offences to an indefinite term of imprisonment.

I want to focus also for the…

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 [2007] HCATrans 110
Case: [2007] HCATrans 110
Decision Date: 2 March 2007

CaseChat Overview and Summary

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

The primary legal issue before the High Court was whether the evidence obtained from the applicant's police interview should have been excluded under section 138 of the *Evidence Act 1995* (NSW). This section requires a court to exclude improperly or illegally obtained evidence unless the interests of justice require its admission. The court also considered whether the trial judge had erred in admitting this evidence, thereby occasioning a substantial miscarriage of justice.

The High Court reasoned that the interview was conducted in circumstances where the applicant had not been cautioned as to his right to silence and had not been informed of his right to communicate with a lawyer or another person. While acknowledging that the interview was not conducted in a manner that was "unfair" in the sense of being oppressive or coercive, their Honours found that the failure to caution the applicant was a significant factor. Applying the principles of s 138, the court determined that the interests of justice did not favour the admission of the evidence, as the impropriety in obtaining it outweighed any potential benefit to the administration of justice.

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

Orders