Green v R [1939] HCA 4; (1939) 61 CLR 167 (22 March 1939)

This is an application for special leave to appeal from an order of the Court of Criminal Appeal (Victoria) dismissing an appeal by George Green against two convictions for murder. He was charged with the murder of a woman (Miss Annie Constance Wiseman) and a girl (Phyllis Wiseman) at Glenroy on the night of 12th November 1938. He was convicted. An appeal was brought to the Court of Criminal Appeal and was dismissed. The accused now applies to this court for special leave to appeal.

It is objected that certain photographs showing the bodies of the murdered women were inadmissible in evidence and should not have been shown to the jury and that certain evidence given by a witness, Mrs. Brannigan, and another witness, Mr. Hewat, also was inadmissible. I can see no reason for holding that any of this evidence was inadmissible. No principle of law was stated the application of which would result in the exclusion of the evidence in question.

Objection was also taken to the summing up so far as it dealt with the subject of circumstantial evidence, but, taking the summing-up as a whole, I regard it as most unlikely that the jury would have been or even might have been misled.

The principal ground of this application is that the Court of Criminal Appeal should have ordered a new trial by reason of the discovery of fresh evidence. The alleged fresh evidence related to the identification of certain bicycle pumps.

There was circumstantial evidence of various kinds upon which the jury could properly find the accused guilty. The accused lived at Heidelberg. Part of the evidence consisted in the discovery at Glenroy, within about two hundred yards of the house where the crime was committed, of a bicycle pump which it was contended belonged to a bicycle which the accused was using on the night of 12th November 1938. The accused denied that he had been at Glenroy on that night. The pump was discovered on 22nd November, after the arrest of the accused, which had taken place on 17th November. There was evidence that a pump was on the bicycle on 12th November but that it was missing on 13th November. The accused gave evidence that he missed the pump on the afternoon of 12th November at Heidelberg. The salesman who sold the bicycle to the mother of the boy, George Read, who owned it, was called as a witness. He said that the pump discovered at Glenroy was of a kind commonly supplied by his company with bicycles of the make of the boy's bicycle but he could not and did not definitely swear that the pump in question or a pump of the same brand ("Brittania") had been supplied with the bicycle, though he believed that it or a pump of the "Victor" brand had been so supplied.

At the coroner's inquest on 19th and 20th December the boy was called as a witness and gave evidence that the pump found at Glenroy was not the pump which had been on the bicycle, and he gave a description of the pump which he said was on the bicycle. He described it as a nickel pump with a green-covered rubber connection and said that it was dented and had a flat end. The pump discovered at Glenroy was a nickel pump with a purple connection, not dented and with round ends. This evidence was known to the accused and his advisers. The accused was committed for trial by the coroner.

On 28th December another pump came into the possession of the police. It was said to have been discovered by children at Heidelberg on 5th December. It corresponded with the description of his pump given by the boy. The statements of the two children who found the pump and of two other persons living at Heidelberg concerning the finding was given to accused's advisers on the morning of Monday, 20th February, before the trial began. On the next day the Crown prosecutor informed counsel for the accused that he did not propose to call George Read, the boy who owned the bicycle and who had given evidence at the inquest. On the following day (Wednesday) counsel for the accused cross-examined a police witness with respect to the pump found at Heidelberg and the Crown prosecutor put the pump in as evidence. Counsel endeavoured to obtain from the witness a statement repeating the evidence given by George Read at the inquest, but the learned trial judge ruled that evidence of evidence given on another occasion by a witness who was available but had not been called was inadmissible.

The accused gave evidence. He denied that the Glenroy pump belonged to the bicycle. He asserted that the Heidelberg pump was similar to the pump belonging to the bicycle. But he could not fit the latter pump on to the points provided for a pump on the bicycle. It was suggested that these points, or one of them, had been bent so as to prevent the pump fitting on to them. But an inspection of the bicycle shows that they have not been bent in any way. The Glenroy pump fits the bicycle readily and easily.

No other witness than the accused was called for the defence. George Read, who was at the court throughout the trial, was not called by either side. Counsel for the accused had the last address to the jury—a benefit which he would not have had if he had called either George Read or the witnesses as to the finding of the pump at Heidelberg. The accused was convicted.

After the trial George Read was interviewed by the advisers of the accused, and he made an affidavit describing his pump as he had done at the inquest and again stating that the Glenroy pump was not his pump.

Upon appeal to the Court of Criminal Appeal the accused applied for a new trial upon the ground of discovery of fresh evidence.

It is a ground for a new trial that fresh evidence has been discovered, but the courts have always been most cautious in granting such applications. It has been required that the evidence should be evidence that could not with reasonable care have been discovered previously and that it should be of such a character that, if it had been tendered, it would have been of such weight as, if believed, to have an important influence on the result. These are general principles which should be applied to both civil and criminal trials (R. v. Copestake; Ex parte Wilkinson[1]; Guest v. Ibbotson[2]; R. v. Sayegh[3]; R. v. Stone[4]; Craig v. The King[5]). Reference may also be made to cases in which the Court of Criminal Appeal in England, which itself has power to hear fresh evidence, though not to order a new trial, has dealt with the question of fresh evidence (R. v. Watkins[6]; R. v. Soper[7]; R. v. Starkie[8]).

But those principles are not in themselves directly applicable in the Court of Criminal Appeal. They are applicable, not as independent rules, but as related to the subject of miscarriage of justice. They should not, particularly in the Court of Criminal Appeal, be regarded as absolute or hard and fast rules. The relevant proposition in that jurisdiction is that (in Victoria, though not in England) a new trial may be granted if the court thinks "that on any ground there was a miscarriage of justice" (Crimes Act 1928, sec. 594 (1)). In considering whether there has been a miscarriage of justice the court should consider all the circumstances of the case. If, for example, there being no elements of fraud, mistake or surprise, an accused person has, by himself or by his legal advisers, deliberately decided to set up a particular defence, he cannot complain as of a miscarriage of justice for the sole reason that, that defence having failed, he comes to the conclusion, or a court comes to the conclusion, that he might succeed if he set up another defence. Thus, if an accused person deliberately chooses to abstain from calling evidence which is available to him, it cannot be said that the course of justice has miscarried for the sole reason that it cannot be asserted with certainty that the result would have been the same if such evidence had been given. There is no miscarriage in such a case. Thus the rules as to the availability of alleged fresh evidence and the weight of that evidence must enter into a consideration of the propriety of granting a new trial in a criminal case. These rules, as stated in the reasons for judgment of the Court of Criminal Appeal in this case, are based upon important principles of public policy. There is grave risk of impeding the administration of justice if new trials are readily granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.

In the present case the evidence with respect to the finding of the pump at Heidelberg was available to the accused at the trial. So also was the evidence of George Read. It was known that he would or could say that the Glenroy pump was not his pump. But it is said that it was not known at the trial that George Read would positively say that the Heidelberg pump was his pump. But it was known at the trial that he would or could say that the Heidelberg pump possessed all the characteristics of his pump mentioned by him at the inquest. In the affidavit now sworn by him he goes no further.

It may be added that there would have been no difficulty whatever in arranging for him to see the Heidelberg pump at the trial.

Thus, in my opinion, the evidence now relied upon was fully available to the accused at the time of the trial. Further, even if the evidence was believed, it would not have been decisive and might, for all we know, have been of but little importance. It would have disposed of the contention that the presence of the pump at Glenroy about ten days after the crime went to establish the probability of the presence of the accused at Glenroy at the time of the crime. It would have given support to the statement of the accused that the pump disappeared at Heidelberg. But the actual establishment of the truth of this statement would not have displaced the other evidence which tended to implicate the accused. That other evidence is very strong indeed. It is unaffected by any evidence as to the pumps. I summarize my view by saying that the complete acceptance by the jury of the unpresented evidence would still leave a very strong case against the accused. In my opinion it cannot be said that there was a miscarriage of justice.

I consider that there has not been a mistrial or any substantial miscarriage of justice.

In the circumstances I am of opinion that a case has not been made for granting special leave.

I think this court approaches these motions for special leave to appeal from an entirely wrong angle. I have expressed in Cornelius v. The King[9] my views upon the subject, and I shall not repeat them here. The judgment of the Chief Justice and his meticulous examination of the facts of this case indicate how far this court goes beyond what I conceive to be its proper function.

In this case it is not suggested that the learned judge misdirected the jury in any way whatever either as to law or as to the facts. It is not suggested that the regular course of criminal procedure has not been followed with absolute fairness and propriety. All that is suggested is that the learned counsel for the prisoner was somewhat surprised at the course which the Crown took in not calling a witness and in not supplying him earlier than it did with some statements of some boys who found a pump in the district where the prisoner lived. It is possible that such matters might in some cases be a ground for a Court of Criminal Appeal exercising its jurisdiction and granting a new trial. But I cannot believe that it is the function of this court to go into such matters as that. The Court of Criminal Appeal has fully investigated the matters and has thought right not to grant a new trial. The matter should rest there without this court going further. Its constant irruption into the administration of criminal justice lessens the confidence of the public in the State courts and in the administration of criminal justice. It is, indeed, a very serious matter.

Jurisdiction is given to this court to grant special leave in cases where special circumstances appear. A review of the circumstances in the present case fails, in my opinion, to disclose any sufficient ground for exercising the discretion by granting special leave.

I do not see any grounds for deciding that there was a miscarriage of justice in this case. In my opinion the case is not one in which the court should exercise its discretion to grant special leave to appeal.

[1] (1927) 1 K.B. 468, at p. 477.

[2] (1922) 91 L.J. K.B. 558.

[3] (1924) 25 S.R. (N.S.W.) 61; 42 W.N. (N.S.W.) 1.

[4] (1926) 26 S.R. (N.S.W.) 394; 43 W.N. (N.S.W.) 129.

[5] [1933] HCA 41; (1933) 49 C.L.R. 429.

[6] (1908) 1 Cr. App. R. 183.

[7] (1908) 1 Cr. App. R. 63.

[8] (1921) 16 Cr. App. R. 61.

[9] [1936] HCA 25; (1936) 55 C.L.R. 235.

High Court of Australia

Green v R [1939] HCA 4; (1939) 61 CLR 167 (22 March 1939)

HIGH COURT OF AUSTRALIA