Ames v The King

[2023] SASCA 85

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

AMES v THE KING

[2023] SASCA 85

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

10 August 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - TO CONSIDER FRESH EVIDENCE

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE - WHERE RESULT OF TRIAL NOT AFFECTED

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

This is an application for permission to pursue a second or subsequent appeal against conviction by the applicant, Daniel Troy Ames, pursuant to s 159 of the Criminal Procedure Act 1921 (SA) (‘the CPA’).

On 29 November 2011, following a trial by judge alone, the applicant was convicted of the murder of his uncle, Allan Ames (‘the deceased’). The cause of death was a single gunshot wound to the head. The deceased’s body was located at industrial premises in Cavan, which he owned (‘the Cavan premises’). The estimated time of death was approximately midnight on 25 November 2009. There was no dispute at trial that the applicant was in the company of the deceased at the Cavan premises between 9:52pm on 24 November 2009 and 12:14am on 25 November 2009. He was the last known person to have seen or spoken to the deceased. Nor was there any dispute at trial, or on appeal that the applicant was in the company of his friend, Mr Peter Lagerwey (‘Lagerwey’), before and after he attended at the Cavan premises. 

The primary issue in dispute at trial was the identity of the offender. The prosecution case was circumstantial. The applicant did not give evidence at trial, nor call any evidence. In challenging the prosecution case, the applicant submitted that the prosecution had not proven that he was present when the deceased was killed and had not established a motive on his part to kill his uncle. The trial Judge ultimately concluded that the circumstantial evidence excluded all reasonable hypotheses consistent with the applicant’s innocence.

On 21 June 2012, the Court of Criminal Appeal dismissed the applicant’s appeal against conviction. On 11 September 2013, the High Court dismissed an application for special leave to appeal against the judgment of the Court of Criminal Appeal.

The applicant now seeks permission to pursue a second or subsequent appeal under s 159 of the CPA on the basis of ‘fresh and compelling evidence’ which should, in the interests of justice, be considered on appeal, and which the applicant contends establishes a substantial miscarriage of justice. The applicant submits the fresh evidence is relevant to a reasonable possibility that another person, or persons, committed the murder. The applicant also submits the fairness of the trial was undermined due to a procedural irregularity by reason of a failure by police to disclose information, which denied him the opportunity to explore other lines of inquiry on the issue of identity and therefore resulted in a substantial miscarriage of justice.

In support of the application, the applicant relies on four bodies of evidence. First, the evidence of Mr Craig Peterson (‘Peterson’), who purports to have been present when Lagerwey confessed to having killed the deceased shortly before his death on 13 July 2016. Second, the evidence of EC that Lagerwey admitted he was ‘involved’ in the murder and had disposed of the murder weapon. Third, the evidence of M that ‘RC’, prior to his death, told him that his daughter, SC, had attended at the Cavan premises with Lagerwey to carry out a drug deal and had accidently shot the deceased. Fourth, the evidence of Mr Roderick Huppatz (‘Huppatz’), the investigating officer, that Lagerwey told RC of matters associated with the murder which were not fully and properly disclosed to defence counsel at trial. The applicant also relies on aspects of the evidence of SC as to her observations of 'bricks' of methylamphetamine and a pistol at her home, where she lived with Lagerwey, the morning after the deceased’s death.

There was no dispute on this application that the first three bodies of evidence are ‘fresh’ in that the evidence could not, even with the exercise of reasonable diligence, have been adduced at the trial. However, in relation to the fourth body of evidence, the respondent contended that there was sufficient police disclosure such that the relevant material could have been obtained with reasonable diligence.

On the initial hearing of this appeal, the applicant adduced evidence from Peterson, Mr Eugene McGee and EC. In response, the Director called evidence from Ms Marie Badman (the mother of Lagerwey), SC and Huppatz.

At the conclusion of the hearing, M contacted the applicant’s legal representatives with further information having seen media reports of the proceedings. The applicant sought to re-open the appeal hearing and filed two affidavits of M, both sworn on 29 August 2022. In response, the Director filed statements of Mr Simon May dated 19 September 2022 (as to prison movement records) and Ms Zoe Bourne dated 27 September 2022 (as to prison visits).

This Court heard further evidence from the applicant, M and SC in a subsequent hearing.

Whilst the disposition of the appeal ultimately required a consideration of the evidence sought to be adduced in relation to s 159 of the CPA, it was first necessary to determine whether the fresh evidence was admissible on the application pursuant to s 34KA of the Evidence Act 1929 (SA) (‘the Evidence Act’).

Held, per the Court, granting permission to appeal, but dismissing the appeal:

1.The fresh evidence adduced on appeal is admissible for the purposes of s 34KA of the Evidence Act.

2.The evidence of Peterson as to Lagerwey’s purported confession to having killed the deceased is not reliable nor substantial and therefore not compelling for the purposes of s 159(6)(b) of the CPA.

3.The evidence of EC as to Lagerwey’s purported admission that he was ‘involved’ in the murder and had disposed of the murder weapon is not reliable nor substantial and therefore not compelling for the purposes of s 159(6)(b) of the CPA.

4.The evidence of M as to RC’s purported statement that his daughter, SC, had accidently shot the deceased whilst attending at the Cavan premises in the company of Lagerwey to carry out a drug deal is not reliable nor substantial and therefore not compelling for the purposes of s 159(6)(b) of the CPA.

5.The evidence of SC as to her observations of 'bricks' of methylamphetamine and a pistol at her home the morning after the deceased’s death is reliable in that she was telling the truth, but it is not substantial in the sense that it merits being accorded weight in undermining the prosecution case as to the identity of the offender. Nor is her evidence on this topic highly probative in the context of the issues in dispute at the trial. It is therefore not compelling for the purposes of s 159(6)(b) of the CPA.

6.The evidence of Huppatz regarding the non-disclosure of parts of his conversation with RC is fresh evidence for the purposes of s 159(6) of the CPA. The evidence is reliable and substantial in that it is of real significance or importance with respect to the matter it is to be adduced to prove, namely that the applicant did not receive a fair trial due to failure by the police to disclose information which denied him the opportunity to explore other lines of inquiry on the issue of identity. Further, the evidence is highly probative in the context of the issues in dispute at the trial, namely in establishing procedural irregularity. The evidence is therefore fresh and compelling. It is in the interests of justice to consider the evidence on this appeal.   

7.The applicant’s conviction was inevitable notwithstanding the failure by police to disclose relevant materials to defence counsel. This procedural irregularity did not place the applicant at any significant forensic disadvantage such that it made a difference to the outcome of the trial. It was not a significant possibility that the trial Judge, acting reasonably, would have acquitted the applicant had the fresh evidence of Huppatz been disclosed to defence counsel at the time of the trial.

Australian Solicitor's Conduct Rules 2015 r 29.5; Criminal Justice Act 2003 (UK) s 116; Criminal Law Consolidation Act 1935 (SA) s 353A; Criminal Procedure Act 1921 (SA) ss 157, 159, 159(1), 159(2), 159(3), 159(6), 159(6)(a), 159(6)(b), 159(7); Criminal Procedure Act 2009 (Vic) ss 274, 276, 326A, 326D; Director of Public Prosecutions Act 1991 (SA) s 10A(1); Evidence Act 1929 (SA) s 34KA, 34KD, 34KD(1), 34KD(2), referred to.

Baini v The Queen (2012) 246 CLR 469; R v Ames [2011] SASC 203; R v Drummond (No 2) [2015] SASCFC 82; R v Haines [2016] SASC 96; R v Keogh (No 2) (2014) 121 SASR 307; R v Keonig (2013) 229 A Crim R 108 ; Roberts v The Queen (2020) 60 VR 431; Roberts v The Queen [2020] VSCA 277; Van Beelen v The Queen (2017) 262 CLR 565, discussed.

Ames v The Queen [2013] HCATrans 214; Festa v The Queen (2001) 208 CLR 593; Grey v The Queen (2001) 75 ALJR 1708; Helps v The Queen (No 3) [2021] SASCFC 10; Lee v The Queen (2014) 253 CLR 455; Mallard v The Queen (2005) 225 CLR 125; Mickelberg v The Queen (1989) 167 CLR 259; Quartermaine v The Queen (1980) 143 CLR 595; R v Ames (2012) 281 LSJS 34; R v Forrest (2016) 125 SASR 319; R v Nylander (2003) 228 LSJS 24; R v Ward [1993] 1 WLR 619; Ratten v The Queen (1974) 131 CLR 510; Wood v The Queen (2012) 84 NSWLR 581, considered.

AMES v THE KING
[2023] SASCA 85

Court of Appeal – Criminal: Livesey P, Bleby and David JJA

1. THE COURT: This is an application for permission to pursue a second or subsequent appeal by the applicant, Daniel Troy Ames, pursuant to s 159 of the Criminal Procedure Act 1921 (SA) (‘the CPA’). 

2. On 29 November 2011, after a ten-day trial without a jury, the applicant was convicted of the murder of his uncle, Allan Ames (‘the deceased’).[1]  On 21 June 2012, the Court of Criminal Appeal dismissed the applicant’s appeal against conviction.[2]  On 11 September 2013, the High Court dismissed an application for special leave to appeal against the judgment of the Court of Criminal Appeal.[3]

   [1]    R v Ames [2011] SASC 203.

   [2]    R v Ames (2012) 281 LSJS 34.

   [3]    Ames v The Queen [2013] HCA Trans 214.

   Overview

3. The deceased was killed by a single gunshot wound to the head. His body was located at 14 Thomas Street, Cavan, which were industrial premises owned by the deceased (‘the Cavan premises’).  There was no dispute that the cause of death was a single gunshot wound to the head. The projectile entered the front of the deceased’s head at an angle of 35 degrees from the horizontal at a point 10cm above, and just to the right of, the bridge of the nose in the right frontal scalp. The projectile came to rest beneath the skin at the rear of the neck. Death would have followed almost immediately after impact.  

4. The forensic evidence at trial included a pathologist’s best estimate of the time of death as approximately midnight on 25 November 2009, with a range of error of plus or minus 2.8 hours (roughly 9:15pm to 2:45am) with a 95 per cent certainty of that result being correct.[4]

   [4]     R v Ames [2011] SASC 203 [64]. It is to be noted that the Addendum Autopsy Report tendered at trial estimated the time of death to be 12:30am on 25 November 2009 plus or minus 2.8 hours.

5. The applicant was in the company of the deceased at the Cavan premises between about 9:52pm on 24 November 2009 and 12:14am on 25 November 2009. He was the last known person to have seen or spoken to the deceased.  The business premises of ‘Cross Cranes’ which are situated at 13 Thomas Street, on the opposite side of the street to the Cavan premises, had a closed circuit television system which recorded movements to and from the premises (‘the Cross Cranes CCTV footage’).  It recorded the applicant’s arrival at the Cavan premises at about 9:52pm on 24 November 2009, and his departure from the Cavan premises at about 12:14am on 25 November 2009. 

6. In relation to the layout of the Cavan premises, there were three buildings on the property.  The most northerly building was a detached office building.  Proceeding south, the second building was an industrial shed (‘the smaller shed’).  On the eastern boundary, there was a gap between the boundary and the eastern side of the shed, producing a walkway. At the relevant time, however, it was filled with debris.  On the western boundary there was a large gap between the western boundary and the western side of the smaller shed, also producing a walkway. In a further southerly direction, the smaller shed abutted a third building which was a larger brick shed (‘the large shed’) which extended east to west across the whole of the block of land.  This was the shed in which the deceased’s body was found. 

7. The main mode of access to the large shed was from a path which ran from Thomas Street via a large sliding gate.  There were no doors, windows, or other points of access on the western, southern or eastern sides of the large shed.  At the northern end of the large shed, at the eastern corner, there was additional access by virtue of a small blue wooden door (‘the blue door’).  Access to the large shed via the blue door could be gained from the neighbouring property to the east, 12 Thomas Street.  The blue door itself was fitted with a simple lock. If a person was inside the large shed, he or she could open the door, turn the lock, exit and close the door, thus locking the door.  The lock on the blue door was found in the locked position when police inspected it on 25 November 2009.  There was no sign that it had been forced.  The soil adjacent to the outside of the blue door appeared undisturbed.  

8. Above the blue door was a gap in the iron sufficient to allow a person to enter if he or she was able to manoeuvre into that position.  The police inspection on 25 November 2009 found no evidence that there had been access by this route.  For example, no ladder was found at this location.

9. There were two sensor lights at the Cavan premises: one operating from the large shed (‘the rear sensor light’); and the other from the small shed (‘the front sensor light’).  The sensor lights were activated by persons walking through the front gate, past the small shed and towards the large shed. They were working properly on 24 and 25 November 2009. Neither of the sensor lights was activated after the applicant’s departure from the premises at 12.14am on 25 November 2009. At trial, defence counsel adduced evidence that the sensor lights were not tested until about six months after the murder, by which time the layout of the premises had changed and the rear sensor light was not functioning.

10. The evidence as to the applicant’s movements on the evening of 24 November 2009, and in the early hours of the morning on 25 November 2009, was primarily drawn from the Cross Cranes CCTV footage. The applicant’s home at 30 Malta Drive, Parafield Gardens was fitted with CCTV cameras (‘the Malta Drive CCTV footage’). Evidence of his movements was also drawn from that CCTV footage.[5]

    [5]     Trial Exhibit P70 – Table of Contents  

11. The applicant left his home at 30 Malta Drive sometime between 9:38pm and 9:40pm on 24 November 2009 in a Nissan Navara dual cab utility (‘the Navara’).[6] Prior to leaving his house, the Malta Drive CCTV footage captured him carrying a shopping bag to his car and placing it in the back of the Navara.[7]  The Navara was recorded travelling south on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park at 9:42pm. The applicant was recorded on CCTV shortly after that, buying fuel at the BP service station on the eastern side of Port Wakefield Road, about 500-600 metres before the junction of Port Wakefield Road and Thomas Street.  He is seen on the BP service station CCTV shortly before his arrival at the Cavan premises at 9:52pm.[8]  It was an agreed fact at trial that the applicant’s Navara was parked directly outside the Cavan premises from 9:52pm on 24 November 2009 until 12:14am on 25 November 2009.  The applicant left the Cavan premises at 12:14am on 25 November 2009.  Upon leaving the premises, he is depicted in the Cross Cranes CCTV footage walking quickly around the back of the Navara before getting into the front driver’s seat of the vehicle.  At the appeal hearing it was put to him, in cross-examination, that when he walked around the rear of the Navara, he placed a quantity of drugs and the murder weapon (a gun) into the tray of the utility. He denied those allegations.

    [6]     It was an agreed fact at trial that the applicant owned a Nissan Navara twin cab utility Reg No SA S064ACM.

    [7]     Trial Exhibit P55 – Bundle of Photographs; Appeal Transcript T59.24-38; T60.1-16; T344.22-38.

    [8]     Trial Exhibit P61 – Photograph taken from CCTV footage at BP Service Station.

12. The applicant returned to his home at 30 Malta Drive at 12:26am on 25 November 2009.  His vehicle was not recorded travelling north on Port Wakefield Road at the Safe‑T‑Cam near Globe Derby Park (which continuously monitored all north and south bound vehicles). By reason of that evidence, the trial Judge found that the applicant did not travel home by the same route he had initially taken to the Cavan premises. After returning home, the applicant changed his clothes and left the premises about 20 minutes later, at 12:56am.

13. There was no dispute on appeal that the applicant was in the company of Mr Peter Lagerwey (‘Lagerwey’) before and after he was with the deceased at the Cavan premises from 9:52pm on 24 November 2009 until 12:14am on 25 November 2009. The Malta Drive CCTV footage showed the applicant and Lagerwey present at the applicant’s home from 7:21pm until 9:18pm, at which time Lagerwey left. The applicant remained at his home until about 9:38pm, when he left for the Cavan premises in his Navara.

14. After leaving the Cavan premises, the applicant received two missed calls from Lagerwey, and then returned his call. In his record of interview, the applicant told police that after he left home (for a second time), he attended Lagerwey’s home at Valley View to discuss Lagerwey’s ‘relationship problems’, where he stayed until he returned home.[9]

    [9]     Trial Exhibit P50 – Record of Interview of 5 December 2009 at pp 33-35.

15. The deceased’s body was found by Mr Paul Martino at about 8:48am on 25 November 2009.  Mr Martino worked at ‘Cross Cranes’. At about 6:50am, Mr Martino attended at the front gate of the Cavan premises, after another employee of Cross Cranes had raised concerns that an interior light had been left on overnight in the large shed, which was unusual. Mr Martino found the gate to be unlocked, but the padlock had been turned to give the appearance of being locked although the hasp was not in fact engaged.  He did not enter the Cavan premises and returned to his home. However, Mr Martino remained concerned and went back to the Cavan premises at about 8:47am, at which time he entered the premises and found the deceased’s body.

16. The deceased was found lying on his back in a relatively straight position on the floor of the large shed. There was obvious extensive bleeding from the head. A large hacksaw was situated near his extended right arm. Near his feet, was a table on which were located a small set of battery-operated scales, a cutlery knife and a small hacksaw. The blades of both hacksaws were tested and found to have methylamphetamine residue with a minor component of MDMA adhered to them. The cutlery knife was also tested and found to have methylamphetamine residue on it.  Methylamphetamine residue was also found on the table top itself.  In the top pocket of the deceased’s shirt was $600 in $50 notes.  Three further amounts of cash, in denominations of $50 and $100 notes, were found in other locations at the Cavan premises, amounting to a total of $8,000.  A large quantity of unused heat‑sealed bags were found within the large shed, along with two tubs containing methylamphetamine and a number of hydroponic cannabis plants and clones. 

1. On the floor of the large shed was a fired Remington .380 auto pistol cartridge case; however, no firearm was found in the immediate proximity of the body.  Numerous firearms were located throughout the Cavan premises and at the deceased’s home, although none was considered capable of firing the cartridge or projectile that caused his death.  The murder weapon was not located.

   The issues at trial

2. The key issue at trial was the identity of the offender.  The prosecution case was circumstantial, and was summarised by the trial Judge, in his reasons for verdict, in the following terms:

   The prosecution case is that a conclusion that the accused murdered the deceased is inevitable on the basis of all of the evidence and inferences including the following:

   ·The accused was the last known person to have seen or spoken to the deceased while he was alive.

   ·The accused was with the deceased from 9.52pm until 12.14am, a period of about 2¼ hours.

   ·The best estimate of Dr Gilbert of the time of death is 12 midnight (although a later time is possible).

   ·The widow of the deceased commenced to telephone the deceased from 1am to 3am. None of the calls were answered, with the inference suggested by the prosecution being that the deceased was dead by 1am.

   ·When the accused arrived at 9.52pm and left at 12.14am, the sensor lights activated on both occasions due to movements on the premises but they did not come on again after the accused had left. This tends to indicate, first, that the deceased was not moving around the premises after the accused had left and, second, no other person attended at the premises until the body was later discovered.

   ·A theory of a killing in the course of a robbery by a stranger with a firearm is fanciful in the light of the fact that $600 was found in the deceased's wallet which was on his person and would have been located by the most superficial search. Other cash to the total of $8,000 was found in various parts of the premises and there was no indication on the deceased's body of the kind of assault or torture that one might expect to have been applied by a criminal prepared to kill to persuade the deceased to produce money if he were suspected to have it. A number of firearms were found at the premises and some were quite easily seen in the in situ photographs but were not taken.

   ·There was an inference of an association between the deceased and the accused to be drawn from the facts in that the deceased was in possession of methyl‑amphetamine (mixed with a very small amount of MDMA) at the time of his death and a substantial amount of methyl-amphetamine (mixed with a very small amount of MDMA) was found hidden at the home of the accused ten days after the death.

   ·CCTV footage recorded at the home of the accused during 24 and 25 November 2009 shows that between 9.19pm and 9.35pm the accused changed from the clothes that he was wearing (“outfit 1”) to different clothes (“outfit 2”) prior to his departure at about 9.40pm for 14 Thomas Street where he arrived at 9.52pm. After leaving 14 Thomas Street at 12.14am and returning home, he again changed into still different clothes (“outfit 3”) prior to again departing the premises at 12.56am and later returning again at 2.56am.

   ·When interviewed by police on 5 December 2009, the accused clearly lied in stating that he had only been in the company of the deceased for 20 to 25 minutes on 24 November 2009. The prosecution submit that his lies on this topic evinced a consciousness of guilt.

   ·The accused also stated that he returned home by the same route that he came, namely via Port Wakefield Road. This is shown to be false by the records of a Safe‑T-Cam situated on Port Wakefield Road which recorded the south bound travel of the accused's vehicle but did not record the claimed north bound travel. The time taken by the accused to return from 14 Thomas Street to his home (about twelve minutes) was significantly greater than the usual time for travel between those two points (about five minutes) and is consistent with an immediate disposal of the firearm by the accused.

   ·When requested by police on 5 December 2009 to produce the clothes he was wearing at the time of his visit to 14 Thomas Street, the accused stated that the top he had been wearing was a black long sleeve tee shirt (which corresponded to “outfit 2” referred to above) but claimed to be unable to find it.

   ·On 5 December 2009, samples were taken from a number of locations in the accused's Navara vehicle and were tested for gunshot residue. It was said that two of the samples were found to be consistent with gunshot residue. (The admissibility of this evidence was challenged by Mr Boucaut and I will consider this matter below).

3. The applicant did not give evidence at trial nor call any evidence. In challenging the prosecution case, the applicant submitted that the prosecution had not proven that he was present when the deceased was killed and had not established a motive on his part to kill his uncle. Further, it was submitted that the evidence of the deceased’s involvement in the drug trade suggested that he was associating with persons who may wish to do him harm, and the fact that the deceased was security conscious, and that a knife and machete were located in the back of his vehicle, indicated that he was expecting trouble.

4. Defence counsel submitted that Dr Gilbert’s evidence as to the time of death was ‘rubbery in the extreme’ and a ‘guesstimate’ and there was opportunity for another person to have killed the deceased after the applicant left the premises.

5. In relation to the sensor lights not having been activated after the applicant left the premises at 12:14am, defence counsel submitted that there was no evidence as to what activity may or may not trigger the sensor lights, and the prosecution had not excluded, as a reasonable possibility, that another person subsequently entered the premises, killed the deceased, and left the premises without activating the sensor lights. 

6. In his reasons for verdict, the trial Judge ultimately concluded that the circumstantial evidence excluded all reasonable hypotheses consistent with innocence and the prosecution case was ‘cohesive and overwhelming.’ His Honour said:

   I have carefully considered all of the above matters and all of the evidence and submissions by both counsel. I have also considered whether there are other matters that can be put in favour of the accused. I have come to the conclusion that, taken as a whole, the prosecution case is cohesive and overwhelming. Any hypothesis of innocence of the accused requires such an unlikely combination of events and circumstances that it is to be dismissed as fanciful with the result that there is no rational hypothesis or reasonable hypothesis consistent with the innocence of the accused.

7. The trial Judge found the deceased was alive shortly before the applicant arrived at the Cavan premises at 9:52pm on the basis of the Cross Cranes CCTV footage and the evidence of a civilian witness, Mr Birch, whose home the deceased briefly attended shortly after 9:00pm.

8. As outlined above, there was no dispute at trial, and the trial Judge found proven, that the applicant was with the deceased at the Cavan premises from 9:52pm on 24 November 2009 until 12:14am on 25 November 2009.

9. In relation to the time of death, the trial Judge accepted the evidence of Dr Gilbert that the approximate time of death was at around midnight, with a range of error of plus or minus 2.8 hours (roughly 9:15pm to 2:45am) with a 95 per cent certainty of that result being correct; a bell curve statistical distribution with the greatest probabilities being at the middle area of the curve. It is to be immediately noted that this finding is not inconsistent with the addendum autopsy report prepared by Dr Jonathon Herbst,[10] who estimated the time of death to be 12:30am on 25 November 2009, plus or minus 2.8 hours (which would place the time of death between 9:45pm to 3:15am). 

   [10]  Autopsy Report prepared by Dr Jonathon Herbst dated 23 February 2011.

10. In relation to the sensor lights at the Cavan premises, the trial Judge found the sensor lights came on when the deceased went to the front gate to allow the applicant to enter at 9:56pm; and they continued to turn on and off at various times while the applicant was on the premises.[11] The trial Judge found that at 11:04pm both sensor lights were off and remained off for a full hour until 12:04am, when the rear sensor light came on, with the front sensor light being activated at 12:13am, when the applicant was leaving the premises.  After the applicant’s departure, neither of the sensor lights came on again. 

    [11]   See Trial Exhibit P70 – Table of Contents.

11. In relation to the applicant’s record of interview with police on 5 December 2009, the trial Judge found that he told deliberate lies on three topics. 

    ·First, the applicant said that his visit with the deceased at the Cavan premises on the evening of 24 November 2009 lasted ‘maybe 20 to 25 minutes’ and that he was home after leaving the Cavan premises by ‘say quarter to ten I spose’.  The trial Judge found that the visit in fact lasted for at least two and a quarter hours and that the applicant left the Cavan premises at 12:14am on 25 November 2009.  His Honour rejected any suggestion that this falsity was due to a mere mistake or faulty memory. 

    ·Second, the trial Judge found the applicant told a deliberate lie when he said that he returned home from the Cavan premises by the same route that he had arrived there.

    ·Third, the trial Judge found that the applicant lied when he told police that the deceased accompanied him to the front gate as he left the Cavan premises for the final time.  His Honour concluded that, had this occurred, both sensor lights would have been activated upon the deceased’s return to the shed.  The sensor lights were not triggered again after the applicant left the premises.

12. However, the trial Judge rejected the prosecution contention that the accused lied during his police interview out of a consciousness of guilt. The trial Judge was not prepared to use the deliberate lies told by the applicant as evidence of guilt or an implied admission of guilt. Rather, his Honour found the applicant’s deliberate lies damaged his credibility to an extent that he placed little weight on his exculpatory statements in his police interview.

13. In relation to the evidence of gunshot residue found in the applicant’s Navara, the trial Judge placed no weight on this evidence, and indicated that had the trial been held before a jury, he would have acceded to defence counsel’s application to exclude the evidence. 

14. The trial Judge found that the evidence was incapable of establishing that the applicant had a motive to commit the offence. However, his Honour considered that the absence of evidence of motive did not equate to positive evidence that there was no motive; nor was it a ‘positive and significant bar’ to the prosecution case.  His Honour explained:

    In the present case, the accused and the deceased were not complete strangers such that one could reasonably postulate that there could be no possible motive for the accused to kill the deceased. The accused was at the deceased's premises for a period of about 2¼ hours on the night of his death. There was significant evidence that the deceased had been trading in methyl-amphetamine and methyl-amphetamine (mixed with a very small amount of MDMA) was found at 14 Thomas Street and near his body. There was also found on the premises of the accused at Malta Drive, ten days after the death, a substantial quantity of methyl-amphetamine (also mixed with a very small amount of MDMA). In such circumstances, it cannot be said that the absence of a known motive is a positive and significant bar to the prosecution case that the accused killed the deceased. In such circumstances, the Crown rightly submits that one simply does not know the precise relationship between the accused and the deceased. One simply cannot know whether or not the accused did have a motive to kill the deceased.

15. The trial Judge expressly considered the defence submission that the prosecution had not excluded as a reasonable possibility that either: a friend or acquaintance of the deceased may have arrived at the premises by the front gate and been let into the property by the deceased before killing him and leaving the premises; or a random thief entered the property without the deceased’s knowledge and killed him.  His Honour rejected each scenario as a reasonable possibility given his finding that the sensor lights were not activated after the applicant left the premises. His Honour also considered that the fact the deceased was found with $600 in his pocket, and that there was a total of $8000 found in other locations at the Cavan premises, militated against the latter submission.  

16. The trial Judge also considered defence counsel’s submission that the prosecution had not excluded as a reasonable possibility that another person (the real offender) entered the large shed via the blue door (which may have been left unlocked), or via the gap in the iron above the blue door, without triggering the sensor lights.  His Honour rejected either scenario as a reasonable possibility and said:

    [W]hile I am prepared to accept that entry by these routes was not impossible, it is highly unlikely. It would have taken someone having great familiarity with both the layout of the property and the workings of the sensor lights, and also a good deal of agility in the dark, to achieve entry and avoid tripping either a sensor light or alerting the deceased by noise or by using a light source.

17. The trial Judge, in reaching a conclusion that there was no rational hypothesis consistent with the applicant’s innocence, emphasised: the applicant’s opportunity to commit the offence as he was the last known person to see the deceased alive; the approximate time of death was at around midnight with a range of error of plus or minus 2.8 hours (roughly 9:15pm to 2:45am) with a 95 per cent certainty of that result being correct; and the improbability that anyone else had accessed the premises without triggering the two sensor lights at the Cavan premises, which were not activated again after the applicant left the premises at 12:14am. His Honour concluded that any hypothesis of innocence of the applicant required such an unlikely combination of events and circumstances that it was ‘fanciful’ and there was no reasonable hypothesis consistent with the innocence of the applicant.

18. The trial Judge found the charge of murder proven beyond reasonable doubt.       

    The application

19. The applicant seeks permission to appeal under s 159 of the CPA on the basis that there is ‘fresh and compelling’ evidence which should, in the interests of justice, be considered on appeal, and which the applicant contends establishes a substantial miscarriage of justice. The applicant contends that the ‘fresh and compelling evidence’ is relevant to: (i) a reasonable possibility that another person, or persons (Lagerwey or SC or both), committed the offence; and (ii) the unfairness of the trial by reason of police non-disclosure. 

20. In support of the application, the applicant relies on four bodies of evidence. First, the evidence of Mr Craig Peterson (‘Peterson’) who purports to have been present when Lagerwey, shortly before his death on 13 July 2016, confessed to having killed the deceased.  Second, the evidence of EC that Lagerwey said words to the effect that he was ‘involved’ in a murder and that he had disposed of the murder weapon. Third, the evidence of M that prior to his death, and whilst they were both in custody at Yatala Labour Prison, ‘RC’ told him that his daughter, SC, had been at the Cavan premises with Lagerwey to carry out a drug deal, and had shot the deceased when a firearm she was pointing at him accidentally discharged. SC gave evidence, in response, denying the assertion that she had been present or shot the deceased. The applicant also relies on aspects of the evidence of SC as to her observations of ‘bricks’ of methylamphetamine and a pistol at her home in the morning after the deceased’s death. Fourth, the evidence of Mr Roderick Huppatz (‘Huppatz’), a former Detective and the investigating officer, that Lagerwey told RC that he was involved in the murder (and of other matters associated with the murder) which were not fully and properly disclosed to defence counsel at trial. 

21. More specifically, the applicant tendered the following material in support of the application:

    ·Affidavits of Peterson sworn on 23 September 2021, 12 May 2022, and 4 July 2022.

    ·Affidavits of EC sworn on 9 August 2021 and 19 October 2021.

    ·Affidavits of Huppatz dated 25 November 2021 (excluding paragraphs [7], [8], [42] and [43]) and attached notes; and 9 June 2022. 

22. In addition to the evidence said to be ‘fresh and compelling’, the applicant also relies on the following evidence:

    ·The transcript of the trial before Justice Peek.

    ·Affidavits of the applicant sworn on 12 May 2022 (excluding those parts of his affidavit referring to Lagerwey and Lagerwey’s statements).

    ·Affidavits of Mr Eugene McGee dated 23 March 2022 and 15 July 2022.

    ·Affidavit of Ms Chloe Kourakis affirmed on 31 March 2022.

    ·Affidavit of Dr Anthony Thomas sworn on 5 April 2022.

    ·Affidavit of Ms Yasmin Jade Alicia McMahon (with annexures) dated 13 May 2022.

23. The applicant submits the additional evidence which is not fresh and compelling is relevant for the following reasons:

    ·for the applicant to deny the truth of various statements purportedly made by Lagerwey to RC as recorded by Huppatz;

    ·to explain the lapse of time between the purported confession by Lagerwey in 2016 and instituting a second appeal in 2021;

    ·to offer a response to the assertions made in the affidavit of SC (affirmed on 30 May 2022) and to corroborate the affidavits of Peterson;

    ·to explain the availability, or otherwise, of trial exhibits;

    ·to identify the issues in dispute at the trial; and

    ·as relevant to an assessment of both whether it is in the ‘interests of justice’ for the fresh evidence to be considered on appeal pursuant to s 159(1) and the question of whether there has been a substantial miscarriage of justice under s 159(3).

24. In response, the Director of Public Prosecutions (SA) (‘the Director’) relies on the following tendered materials:

    ·Affidavit of Ms Marie Badman (Lagerwey’s mother) dated 13 February 2022.

    ·Affidavits of SC dated 30 May 2022 and 20 September 2022. 

    ·Affidavit of Professor Jason White dated 7 May 2022.

    ·Affidavit relating to medical records of Lagerwey from the Queen Elizabeth Hospital dated 17 May 2022.

    ·The trial statements of: Lagerwey dated 5 December 2009 and 25 June 2011; SC dated 27 February 2010; Detective Paul Ward dated 28 July 2010 (annexing a transcript of a police interview conducted with Lagerwey); Huppatz dated 29 July 2010 (with annexed exhibits); and Mr Christopher Hackett dated 2 July 2010 (with annexed materials).

    ·Affidavit of Ms Lisa Duong dated 14 June 2022 (as to trial exhibits).

25. On the initial hearing of this appeal, the applicant adduced evidence from Peterson, Mr Eugene McGee, and EC. In response, the Director called evidence from Ms Marie Badman, SC and Huppatz.

26. At the conclusion of the hearing, M, having seen media reports of the proceedings contacted the applicant’s legal representatives with further information. The applicant sought to re-open the appeal hearing and filed two affidavits of M, both sworn on 29 August 2022. In response, the Director filed statements of Mr Simon May dated 19 September 2022 (as to prison movement records) and Ms Zoe Bourne dated 27 September 2022 (as to prison visits).

1. This Court heard further evidence from the applicant, M and SC in a subsequent hearing. 

2. Before proceeding to consider the evidence adduced on the hearing of the appeal, it is necessary to consider the relevant legislative provisions.

   The statutory scheme

3. Section 159 of the CPA governs this application, and provides:

   159—Second or subsequent appeals

   (1)The Court of Appeal may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.

   (2)A convicted person may only appeal under this section with the permission of the Court of Appeal.

   (3)The Court of Appeal may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.

   (4)If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.

   (5)If the Court of Appeal orders a new trial under subsection (4), the Court—

   (a)may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but

   (b)may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.

   (6)For the purposes of subsection (1), evidence relating to an offence is—

   (a)fresh if—

   (i)it was not adduced at the trial of the offence; and

   (ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and

   (b)compelling if—

   (i)it is reliable; and

   (ii)it is substantial; and

   (iii)it is highly probative in the context of the issues in dispute at the trial of the offence.

   (7)Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.

4. Section 159 provides the Court of Appeal with jurisdiction and power to hear and determine a second or subsequent appeal against conviction if satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal, where the applicant has been granted permission to appeal under s 159(2). Accordingly, the requirements of s 159(1) are pre‑conditions to the conferral of jurisdiction. The appeal may only be allowed if this Court is satisfied there was a substantial miscarriage of justice.

5. Pursuant to s 159(1), the three jurisdictional pre-conditions that must be satisfied are: first, there is evidence that is fresh; second, the evidence is compelling; and third, the evidence should, in the interests of justice, be considered on appeal. The onus lies on the applicant to establish that the pre-conditions to the exercise of the Court’s power to grant permission have been satisfied.[12]

   [12]   Roberts v The Queen (2020) 60 VR 431 at [45] per Osborn and T Forrest JJA and Taylor AJA.

6. It is evident that s 159 manifests an intention that considerations of finality yield where ‘fresh and compelling evidence’, when considered with the evidence at trial, satisfies the Court of Appeal that there has been a substantial miscarriage of justice. If, following an unsuccessful appeal, fresh and compelling evidence is discovered, the evident intention is that this Court has jurisdiction to remedy any substantial miscarriage of justice.[13] The permission requirement is intended to prevent successive meritless applications.[14]

   [13]   Van Beelen v The Queen (2017) 262 CLR 565 at [27] per Bell, Gageler, Keane, Nettle and Edelman JJ.

   [14]   Van Beelenv The Queen (2017) 262 CLR 565 at [27] per Bell, Gageler, Keane, Nettle and Edelman JJ; Roberts v The Queen (2020) 60 VR 431 at [41] per Osborn and T Forrest K JJA and Taylor AJA.

7. The power to grant permission to appeal a second or subsequent time is contingent upon satisfaction that any one piece of evidence put forward by the applicant to found jurisdiction is fresh and compelling, and it is in the interest of justice to consider it. Thus, jurisdiction under s 159 is further conditioned upon the Court’s satisfaction that it is in the interests of justice that the fresh and compelling evidence be considered on appeal.[15] Evidence other than the fresh evidence relied on by the applicant, coming to light independently of the trial, may bear on the question of the interests of justice.[16] Moreover, whether it is in the interests of justice to consider the fresh evidence is informed by the notion of a substantial miscarriage of justice.[17]

   [15]   Van Beelen v The Queen (2017) 262 CLR 565 at [30] per Bell, Gageler, Keane, Nettle and Edelman JJ.

   [16]   Roberts v The Queen (2020) 60 VR 431 at [49] per Osborn and T Forrest JJA and Taylor AJA.

   [17]   Roberts v The Queen (2020) 60 VR 431 at [50] per Osborn and T Forrest JJA and Taylor AJA, citing Baini v The Queen (2012) 246 CLR 469 at [25]-[26] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

8. There are three stages that must be addressed and established by an applicant before a second or subsequent appeal will be allowed under s 159 of the CPA:

   1.The Court of Appeal must find that the jurisdictional pre-conditions in s 159(1) have all been satisfied: namely that there is ‘fresh and compelling evidence’ that should, in the ‘interests of justice’, be considered on the second or subsequent appeal.

   2.Under s 159(2), the Court of Appeal must grant permission to appeal.

   3.Under s 159(3), the Court of Appeal may allow the appeal where there was a ‘substantial miscarriage of justice’ resulting from the conviction.

9. In the present case, this Court proceeded on the basis that these three stages were to be heard and determined concurrently.  The weight of authority does not support the view that it is relevant to consider whether any issue is “reasonably arguable”. [18]

   [18]   See R v Keogh (No 2) (2014) 121 SASR 307 at [86]-[88] per Gray, Sulan and Nicholson JJ where their Honours described the existence of three stages but included the notion of a ‘reasonably arguable’ basis; c.f. R v Drummond (No 2) [2015] SASCFC 82 at [246] per Blue J; Helps v The Queen (No 3) [2021] SASCFC 10 at [34] per Peek J.

   Pre-conditions under s 159(1)

10. The term ‘fresh’ is defined by s 159(6)(a) of the CPA. The applicant bears the onus of establishing that: first, the evidence was not adduced at the trial; and second, the evidence could not, even with the exercise of reasonable diligence, have been adduced at the trial.  There was no dispute on this application that each of the first three bodies of evidence relating to confessional material was ‘fresh’ in that the evidence was not adduced at the trial of the offence and it could not, even with the exercise of reasonable diligence, have been adduced at the trial. However, in relation to the fourth body of evidence, whilst the respondent conceded that the police did not disclose relevant material to the applicant, the respondent contended that there was sufficient police disclosure such that the relevant material could have been obtained with reasonable diligence. 

11. Pursuant to s 159(6), evidence is ‘compelling’ if it is reliable, substantial, and highly probative in the context of the issues in dispute at the trial of the offence. The terms ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen v The Queen[19] (‘Van Beelen’) the High Court explained:[20]

    Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words “reliable”, “substantial” and “highly probative” in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly “substantial”. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression “the issues in dispute at the trial” will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.

    (Citations omitted.)

    [19] (2017) 262 CLR 565.

    [20]   Van Beelen v The Queen (2017) 262 CLR 565 at [28] per Bell, Gageler, Keane, Nettle and Edelman JJ.

12. The concept of ‘issues in dispute at trial’ extends to whether the applicant received a fair trial according to law. It is not limited to specific forensic issues.[21]

    [21]   Roberts v The Queen (2020) 60 VR 431 at [91] per Osborn and T Forrest JJA and Taylor AJA.

13. If this Court is satisfied that there is fresh and compelling evidence, it will proceed to consider whether it is in the interests of justice to consider the fresh and compelling evidence on the second or subsequent appeal. The High Court in Van Beelen recognised that evidence other than fresh evidence relied on by the applicant and coming to light independently of the trial, may be relevant and considered on the question of the interests of justice.[22]

    [22]   Van Beelen v The Queen (2017) 262 CLR 565 at [30] per Bell, Gageler, Keane, Nettle and Edelman JJ; see also Roberts v The Queen (2020) 60 VR 431 at [49] per Osborn and T Forrest JJA and Taylor AJA.

14. In R v Drummond (No 2),[23] Blue J observed that the ‘interests of justice’ criterion may be seen as a ‘filter’ which allows the Court ‘to decline to consider the evidence in special circumstances such as when the application is vexatious or repetitive of a previous application [for a second or subsequent appeal].’[24] 

    [23] [2015] SASCFC 82.

    [24]   R v Drummond (No 2) [2015] SASCFC 82 at [361] per Blue J.

    Substantial miscarriage of justice

15. If the Court is satisfied that the jurisdictional pre-conditions under s 159(1) are satisfied, and permission to appeal is granted under s 159(2), the Court may allow the appeal where it determines that there was a substantial miscarriage of justice. At this stage of the proceedings, evidence that does not qualify as ‘fresh’ evidence within the meaning of s 159 may be considered.[25] The parties are entitled to rely on evidence which has come to light since the applicant’s trial, for example, to reinforce or rebut inferences to be drawn from the fresh evidence.[26]

    [25]  R v Keogh (No 2) (2014) 121 SASR 307 at [116], [132], [139], [143] per Gray, Sulan and Nicholson JJ, referring to Ratten v The Queen (1974) 131 CLR 510.

    [26]   Roberts v The Queen [2020] VSCA 277 at [76] per Osborn and T Forrest JJA and Taylor AJA, citing Ratten v The Queen (1974) 131 CLR 510 at 518 per Barwick CJ.

16. Further, s 159(7) of the CPA provides that evidence is not precluded from being admissible on a second appeal because it would not have been admissible at trial.

17. The High Court in Van Beelen held that the test to be applied when determining whether there has been a substantial miscarriage of justice pursuant to s 159(3) is as enunciated in Mickelberg v The Queen.[27] That test requires the Court to consider whether the applicant has established on the balance of probabilities that in light of the fresh and compelling evidence, taken with the evidence adduced at trial, there is a significant possibility that a jury or trier of fact, acting reasonably, would have acquitted the applicant.[28] If a conviction was inevitable, then it is likely that a substantial miscarriage of justice will not have been established.[29] 

    [27]   Van Beelen v The Queen (2017) 262 CLR 565 at [22] per Bell, Gageler, Keane, Nettle and Edelman JJ, citing Mickelberg v The Queen (1989) 167 CLR 259.

    [28]   Van Beelen v The Queen (2017) 262 CLR 565 at [22] per Bell, Gageler, Keane, Nettle and Edelman JJ.

    [29]   R v Keogh (No 2) (2014) 121 SASR 307 at [128] per Gray, Sulan and Nicholson JJ.

18. To overcome a submission that a conviction was inevitable, an applicant need do no more than show that, had the fresh and compelling evidence been before the jury or trier of fact, they may have entertained a doubt as to his or her guilt.[30]  It follows that there may be a substantial miscarriage of justice even where the totality of the evidence is capable of proving the appellant’s guilt beyond reasonable doubt.  Where that is the case, the appropriate course is for the conviction to be quashed and a re-trial ordered.

    [30]   Baini v The Queen (2012) 246 CLR 469 at [31] per French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ; see also R v Keogh (No 2) (2014) 121 SASR 307 at [127] per Gray, Sulan and Nicholson JJ.

19. Importantly, a substantial miscarriage of justice is not confined to a question of the applicant’s guilt.  In R v Keogh (No 2)[31] the Full Court followed the approach articulated by the High Court in Baini v The Queen[32] (‘Baini’) as to the meaning of a substantial miscarriage of justice.

    [31] (2014) 121 SASR 307.

    [32] (2012) 246 CLR 469.

20. In Baini the High Court considered the meaning of a substantial miscarriage of justice under ss 274 and 276 of the Criminal Procedure Act2009 (Vic). The plurality construed the phrase ‘substantial miscarriage of justice’ in the following terms:[33]

    Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms.

    … 

    The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a “substantial miscarriage of justice” ultimately requires a judgment to be made.

    (Citations omitted.)

    [33]  Baini v The Queen (2012) 246 CLR 469 at [25]-[26] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

21. The plurality considered that the strength of the prosecution case at trial was relevant to the question of whether there had been a ‘substantial miscarriage of justice’ and said that in some cases:[34]

    … it may be possible for an appellate court to conclude that there has not been a “substantial miscarriage of justice” because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged.

    [34]   Baini v The Queen (2012) 246 CLR 469 at [28] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

22. The plurality in Baini made three points about this possibility.

23. First, in many cases an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. That is because the nature of the error or irregularity will prevent that conclusion from being reached by an appellate court on the record of the trial, given the natural limitations that attend the appellate task.

24. Second, the appellate court’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been a substantial miscarriage of justice; while it will not, in every case, be determinative of whether there has been a substantial miscarriage of justice, it is a matter to be taken into account.

25. Third, the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. At least in cases where evidence has wrongly been admitted at trial or where evidence has wrongly been excluded, an appellate court could only be satisfied, on the record of the trial, that an error did not amount to a ‘substantial miscarriage of justice’ if the appellate court concludes from its review of the record that conviction was inevitable.

26. Relevantly to this appeal, the plurality in Baini also considered that the expression ‘substantial miscarriage of justice’ encompasses not only an error which possibly affected the result of the trial but also some departures from trial processes described as ‘serious departures’, whether or not the impact of the departure in issue can be determined.[35] 

    [35]   Baini v The Queen (2012) 246 CLR 469 at [26]-[27] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

27. In relation to the evidence to which an appellate court may have regard on the hearing of a second appeal, in Keogh (No 2) the Full Court said:[36]

    An applicant must first demonstrate that there is jurisdiction to hear a second appeal in accordance with the requirements of s 353A. An applicant will need to demonstrate the existence of evidence that is, inter alia, fresh within the statutory definition strictly applied. However, once jurisdiction is established and provided permission is granted, the appeal is to proceed as a normal appeal against conviction and according to the procedure usually employed to determine appeals from this Court. As such, it will then be open to the Court hearing the second appeal to receive fresh evidence subject to the flexibility, in this respect, available to an appeal court according to and in the manner provided for in Ratten.

    (Citations omitted.)

    [36]   R v Keogh (No 2) (2014) 121 SASR 307 at [143] per Gray, Sulan and Nicholson JJ.

28. In Keogh (No 2) the Full Court concluded:[37]

    In summary, it is not possible to succinctly define a substantial miscarriage of justice. However, before a court will conclude that a substantial miscarriage of justice has occurred, it will consider whether, despite the irregularity, be it procedural or substantive, the conviction was inevitable. If a conviction is inevitable, then it is likely that a substantial miscarriage of justice has not been established. The categories of when and how a miscarriage of justice can occur are too numerous to attempt to define. However, they include wrongful admission of evidence, evidence which is flawed in some respect, comments by counsel or the judge which are prejudicial, and statements made which cannot be supported by the evidence.

    [37]  R v Keough (No 2) (2014) 121 SASR 307 at [128].

29. Accordingly, the circumstances in which a substantial miscarriage of justice may be demonstrated include (but are not limited to) cases where fresh evidence establishes that an accused did not receive a fair trial due to a material error or irregularity in the prescribed processes for trial, and where fresh evidence establishes that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial.[38]  Thus, evidence of a material error or irregularity which constitutes a serious departure from prescribed processes for trial may, of itself, justify a conclusion that there has been a substantial miscarriage of justice. [39] Alternatively, a substantial miscarriage of justice may be established where the court cannot be satisfied that the material irregularity did not make a difference to the outcome of the trial.

    [38]   Festa v The Queen (2001) 208 CLR 593 at [226] per Hayne J; R v Nylander (2003) 228 LSJS 24 at [46] per Prior, Bleby and Sulan JJ; Roberts v The Queen [2020] VSCA 277 at [19] per Osborn and T Forrest JJA and Taylor AJA.

    [39]   Roberts v The Queen (2020) 60 VR 431 at [53] per Osborn and T Forrest JJA and Taylor AJA, citing Baini v The Queen (2012) 246 CLR 469 at [26] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.

1. In relation to the deceased’s involvement with the illicit drug trade and his ostensible motive, the applicant accepted that he was at the Cavan premises for over two hours, and that there was an extended period of time in which the sensor lights were not activated and during which the deceased and the applicant were inside the large shed, not moving about. However, the applicant maintained that he never went into the rear of the large shed far enough to see the area where the table and chairs, drugs, hacksaws, and the deceased’s body were found. He accounted for his time spent at the Cavan premises as ‘just being with my uncle, talking, going to and from each shed.’ The account of limited, inexplicable movement in that shed was far from credible.

2. The applicant also claimed in evidence that the methylamphetamine found at his property, which was analysed and found to be broadly consistent with having been derived from the same source as the methylamphetamine found on the table at the Cavan premises, was given to him by the deceased on the Monday before the murder. He claimed the deceased asked to leave ‘something’ with the applicant because he (the deceased) was driving to a farm near Tailem Bend. The applicant said he did not know what the ‘something’ was until it was given to him. He said he was content to take possession of the drugs and store them at his house. He did not ask the deceased any questions about those drugs. 

3. The applicant’s evidence at the appeal hearing as to what occurred between himself and the deceased on the evening of the murder was unconvincing, as was his explanation for the drugs located at his Malta Drive home.  Whilst there was no established motive for the alleged offence, there was evidence of an association between the applicant and the deceased in the context of drugs and, it cannot be said that there was a proven absence of motive which undermined the prosecution case. 

4. For those reasons, we do not consider that the procedural irregularity of the police non-disclosure placed the applicant at any significant forensic disadvantage such that it made any difference to the outcome of the trial or that it produced a significant possibility that a properly instructed jury, or trial judge sitting without a jury, would have acquitted the applicant had the fresh evidence of Huppatz been disclosed to defence counsel at the time of the trial. We consider the applicant’s conviction was inevitable notwithstanding the failure by police to disclose the complete context of Huppatz conversation with RC, and his notes to that affect.

   Orders

   1.We grant permission to appeal, but dismiss the appeal.