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…