Green v The Queen [1997] HCA 50

Green v The Queen [1997] HCA 50

The majority held that the trial judge erred by treating evidence of the appellant's family history and special sensitivity to sexual interference as irrelevant to provocation, and by constraining the defence on the wrong understanding of s 23(2)(b). That evidence was relevant both to whether the appellant actually lost self-control and to the gravity of the provocation experienced by him for the purpose of applying the ordinary person test. Because a properly directed reasonable jury could have entertained a reasonable doubt that the Crown had negatived provocation, the appellant lost a real chance of acquittal of murder. The proviso in s 6(1) of the Criminal Appeal Act 1912 NSW did not...

Jurisdiction
Australia
Procedural Posture
Criminal Appeal Against Conviction for Murder / High Court Appeal From the Court of Criminal Appeal of New South Wales
Outcome
Appeal allowed; conviction quashed; new trial ordered.
Legal Topics
['murder' 'manslaughter' 'provocation' 'ordinary Person Test' 'loss of Self Control' 'proviso on Criminal Appeal' 'misdirection' 'admissibility of Evidence']
['criminal Law' 'criminal Procedure' 'evidence'] ['murder' 'manslaughter' 'provocation' 'ordinary Person Test' 'loss of Self Control' 'proviso on Criminal Appeal' 'misdirection' 'admissibility of Evidence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction for Murder / High Court Appeal From the Court of Criminal Appeal of New South Wales

Legal Issues

  1. 1 ["Whether evidence of the appellant's special sensitivity to sexual interference and family background was admissible and relevant to provocation under s 23(2) of the Crimes Act 1900 NSW." 'Whether s 23(2)(b) required consideration of whether an ordinary person in the position of the accused could have formed an intent to kill or inflict grievous bodily harm, rather than whether such a person could have acted as the accused did.' 'Whether the Court of Criminal Appeal erred in applying the proviso in s 6(1) of the Criminal Appeal Act 1912 NSW despite errors at trial.' 'Whether a new trial or substitution of manslaughter was the appropriate order.']

Ratio Decidendi

The majority held that the trial judge erred by treating evidence of the appellant's family history and special sensitivity to sexual interference as irrelevant to provocation, and by constraining the defence on the wrong understanding of s 23(2)(b). That evidence was relevant both to whether the appellant actually lost self-control and to the gravity of the provocation experienced by him for the purpose of applying the ordinary person test. Because a properly directed reasonable jury could have entertained a reasonable doubt that the Crown had negatived provocation, the appellant lost a real chance of acquittal of murder. The proviso in s 6(1) of the Criminal Appeal Act 1912 NSW did not...

Court Disposition

Appeal allowed; conviction quashed; new trial ordered.

Orders

  • ['Appeal allowed.' 'Order that the order of the Court of Criminal Appeal of New South Wales be set aside.' 'In lieu thereof order that the appeal to that Court be allowed, that the conviction be quashed and that a new trial be had.']