R v Drummond - [2013] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application for Permission from the Full Court for a Second or Subsequent Appeal Against Conviction)
R v DRUMMOND
[2013] SASCFC 135
Reasons for Decision of The Honourable Justice Stanley
12 December 2013
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
Application for permission from the Full Court for a second appeal against conviction.
The applicant was charged with the offence of attempted kidnapping contrary to sections 39(1) and 270A of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). He was convicted by jury verdict following a trial in the District Court. The applicant appealed against conviction to the Court of Criminal Appeal. The appeal was dismissed. The applicant was then refused special leave to appeal to the High Court.
The applicant now seeks permission for a second appeal against conviction on the ground that there exists fresh and compelling evidence that should, in the interests of justice, be considered on appeal pursuant to section 353A of the CLCA.
Whether it is reasonably arguable that the evidence is fresh. Whether it is reasonably arguable that the evidence is compelling. Whether it is reasonably arguable that it is in the interests of justice to consider the evidence on appeal. Whether it is reasonably arguable that in the circumstances there was a substantial miscarriage of justice.
Held (refusing permission to appeal):
1. The onus is on the appellant to satisfy the appeal court that fresh and compelling evidence exists, that it is in the interests of justice that it should be received and that in light of the evidence a substantial miscarriage of justice occurred (at [12] - [25]).
2. It is the practice of the Full Court, in cases where an appeal does not lie as of right, to grant permission to appeal against conviction if the proposed ground of appeal is reasonably arguable (at [26] - [27]).
3. The applicant has given no convincing explanation as to why the evidence now presented could not have been adduced at trial. It is not reasonably arguable that the evidence is fresh evidence (at [30] - [33]).
4. The evidence is not highly probative in the context of the issue of identification. It is not reasonably arguable that the evidence is compelling (at [35] - [41]).
5. It is not reasonably arguable that it is in the interests of justice that the evidence be considered on appeal (at [42]).
6. It is not reasonably arguable that there was a substantial miscarriage of justice (at [43]).
Criminal Law Consolidation Act 1935 (SA) s 39, s 270A, s 352, s 353, s 353A; Supreme Court Act 1935 (SA) s 48; Statutues Amendment (Appeals) Act 2013 (SA) s 7; Crimes Act 1958 (VIC) s 568; Criminal Procedure Act 2009 (VIC) s 276, referred to.
Gallagher v The Queen (1985) 160 CLR 392; R v Gallagher (1997) 96 A Crim R 300; Weiss v The Queen (2005) 224 CLR 300; Baiada Poultry v The Queen (2012) 246 CLR 92; Baini v The Queen (2012) 246 CLR 469, discussed.
Mickelberg v The Queen (1989) 167 CLR 259; R v Parenzee (2007) 101 SASR 456; R v Weiss (2004) 145 A Crim R 478; R v Konstandopoulos (1997) 99 A Crim R 36; Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450; McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; Wilderness Society of WA (Inc) v Minister for Environment (2013) 196 LGERA 234, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Fresh and compelling evidence", "substantial miscarriage of justice"

R v DRUMMOND
[2013] SASCFC 135

STANLEY J: This is an application for permission from the Full Court for a second appeal against conviction pursuant to s 353A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
Background
The applicant was charged with the offence of attempted kidnapping contrary to sections 39(1) and 270A of the CLCA. On 16 March 2012, he was convicted by jury verdict following a trial in the District Court. He was sentenced to five years and three months imprisonment with a non-parole period of two years and six months. By Notice of Appeal dated 27 March 2012, he appealed against the conviction to the Court of Criminal Appeal. The appeal was dismissed. He was then refused special leave to appeal to the High Court.
The applicant now seeks permission to appeal on the ground that there exists fresh and compelling evidence that should, in the interests of justice, be considered on appeal pursuant to s 353A of the CLCA. By s 353A(2) of the CLCA a convicted person may only appeal in such cases with the permission of the Full Court.[1]
[1] Pursuant to s 48(3) of the Supreme Court Act 1935 (SA) the power to grant permission to appeal may be exercised by a single judge of the Supreme Court.
Facts
On 24 November 2010, the complainant, T, was walking on the footpath of Prospect Road. She was then a secondary school student. A slow moving white station wagon drove towards her. She became worried and entered the vehicle’s registration number in her mobile telephone. A male alighted from the vehicle and grabbed her arm and repeatedly told her to get into the car. T was able to break free by pushing the man away and hitting him around the collar bone area. Further along Prospect Road, the white station wagon again pulled up alongside her. T eventually turned into the street in which she lived and did not see the man again.
There was no dispute at trial that the registration number recorded by T was the registration number of the applicant’s white station wagon. T had also described her attacker as having brown wavy collar length hair and brown eyes. She described him as having a medium build. It was accepted that the general description given by her fitted the applicant.
A forensic scientist, Ms Natasha Pamela Toop Mitchell, gave evidence of the attempts to discover traces of DNA on the clothing of both T and the applicant. No trace of the applicant’s DNA was found on T’s clothing, nor was any trace of T’s DNA found on the applicant’s clothing. Ms Mitchell’s opinion was that the fact that no useable DNA material was located did not necessarily mean that there was no contact between the applicant and T, although that was a possibility. She explained why DNA material might not be found on an object even where a person has come in contact with the surface of that object. This included reference to studies that have shown that only about 10 per cent of samples actually provide any useful information that could be uploaded to the DNA database.
The trial judge directed the jury on Ms Mitchell’s evidence in the following terms:
The evidence of Ms Mitchell, whose qualifications in the area of recovery and analysis of DNA material was not challenged, told you that the clothing of both Ms [T] and the accused Mr Drummond was tested for contact DNA material and that no samples were found. She also told you that it is not unusual for there to be an absence of DNA material where the testing is for contact DNA. Bear in mind her evidence about the study that had been undertaken, within her laboratory at least, and, although it might be difficult to ascertain from that what proportion of the sample contained contact DNA, because she said that they only uploaded material or evidence relating to material of certain quality, she said that they were only able to do that in about 10% of cases.
You will bear in mind in assessing this issue of the absence of contact DNA material the evidence of Ms [T] that she was wearing a singlet top and the man who grabbed her grabbed her on her upper arms. You will also bear in mind however that there was no DNA material recovered from the T-shirt that it is an agreed fact the accused was wearing when he was in the vicinity of Prospect Road. In deciding whether you accept or reject Ms Mitchell’s evidence you look to the qualifications and expertise of the witness and, as I said, that is not really challenged; the manner in which she gave her evidence; your understanding of the evidence; the circumstances which formed the basis of her opinion and all the material evidence in the case.
The evidence of experts is ultimately like any other evidence, that is you must assess it, analyse and decide whether you accept it and, in doing so, apply your common sense.
The Appeal
The applicant submits that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. The application for permission to appeal states that subsequent to the trial and the appeal a scientific evaluation of the evidence presented by Ms Mitchell relating to the DNA evidence reveals that Ms Mitchell’s evidence on that topic, contrary to the finding of the Court of Criminal Appeal, was misleading and in fact had no evidential significance or value. That evidence consists of expert opinions contained in two affidavits. The first affidavit was sworn by Dr Trevor J Rothwell on 6 September 2013 and the second by Dr Harry William John Harding on 11 September 2013. Both deponents are forensic scientists. They state that parts of the evidence given by Ms Mitchell at the applicant’s trial were misleading and confusing. Issue is taken with the laboratory studies referred to by Ms Mitchell in her evidence to support her opinion that only around 10 per cent of samples tested in the Forensic Science laboratory yielded a single source DNA profile that was suitable for uploading to the DNA database. They say that the studies have no evidential significance and no relevance to the interpretation of results obtained in the applicant’s case. It is further opined that Ms Mitchell’s application of the studies to the applicant’s case was inaccurate as she referred to “10 per cent of samples” rather than “10 per cent of sample types” and this fundamental distinction was not understood by Ms Mitchell or the court. The relevance of the distinction, in the applicant’s submission, is that “10 per cent of samples” refers to samples of contact DNA taken from all surfaces, whereas if the sample type is clothing, as it was in the applicant’s case, the study suggests that as many as 66 per cent of samples yielded a DNA profile suitable for uploading to the DNA database.
The applicant contends that this evidence would be given by Dr Harding on appeal. The applicant says that if this evidence had been before the jury, there is the real possibility the jury would have reached a different verdict.
The respondent does not concede that the evidence of Ms Mitchell was misleading or confusing. However, it contends that the application can be decided without the need to determine this issue because, assuming that aspect of Ms Mitchell’s evidence was misleading or confusing, it is not reasonably arguable that the evidence relied upon by the applicant is either fresh, compelling or indicative of a substantial miscarriage of justice having occurred.
Second and subsequent appeals
It is instructive to consider the statutory regime which now regulates the hearing by the Full Court of second and subsequent appeals. Section 353A of the CLCA commenced operation on 5 May 2013. It was inserted by s 7 of the Statutes Amendment (Appeals) Act 2013 (SA). It provides as follows:
353A—Second or subsequent appeals
(1)   The Full Court 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 Full Court.
(3)   The Full Court 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 Full Court 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.
In my view, an applicant must establish four criteria in order to satisfy the requirements of s 353A of the CLCA. Those criteria are firstly, that the evidence must be fresh; secondly, the evidence must be compelling; third, it must be in the interests of justice to consider the evidence; and, finally, in the circumstances there was a substantial miscarriage of justice.
I am of the view that Parliament, by the enactment of s 353A of the CLCA, has expressed an intention to change the common law test for the admission of fresh evidence, at least for the purpose of the hearing of a second or subsequent appeal against conviction. In Gallagher v The Queen,[2] Gibbs CJ considered the common law principles applicable to the admission of fresh evidence. He observed:[3]
…No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.
[2] (1986) 160 CLR 392. See also, Mickelberg v The Queen (1989) 167 CLR 259; R v Parenzee [2007] SASC 316, (2007) 101 SASR 456.
[3] Gallagher v The Queen (1986) 160 CLR 392 at 399.
Similarly, Mason and Deane JJ observed:[4]
Regardless of the precise words in which one describes requirements such as “cogency”, “plausibility” or “credibility”, the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ. in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial. Obviously, that question can only be answered in the context of, and by reference to, “the probative force and the nature of the evidence already adduced at the trial”: Craig, per Rich and Dixon JJ. Street C.J. so answered it. His Honour considered the new evidence in "the context of evidence which, in the first trial, was such as to enable the Crown to succeed in proving guilt beyond reasonable doubt”. The effect of his Honour's finding which is set out above was clearly that there was no significant possibility that the unavailability to the applicant of the new evidence at the time of the trial had resulted in a miscarriage of justice in the relevant sense. That being so, any appeal to this Court from the decision of the Court of Criminal Appeal must fail unless that finding of Street C.J., in which Reynolds J. joined, is displaced.
[Citations omitted]
[4] Gallagher v The Queen (1986) 160 CLR 392 at 402 - 403.
In relation to the first of the common law requirements, that the conviction will not be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, Gibbs CJ observed:[5]
The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.
[5] Gallagher v The Queen (1986) 160 CLR 392 at 395.
In my view, the requirements in s 353A of the CLCA that the evidence be “fresh” and “compelling” as defined, are mandatory and, unlike the common law, cannot be applied flexibly where the strength of the evidence justifies interference with the verdict. In this way, s 353A of the CLCA has varied the common law position. Moreover, the existence of fresh and compelling evidence is a threshold test. Until the Court is satisfied of the existence of fresh and compelling evidence it cannot undertake the discretionary exercise of considering whether the interests of justice require the hearing of a second or subsequent appeal against conviction.
Substantial miscarriage
Section 353A(3) provides that the Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice. The applicant submits that the adjective “substantial” is otiose and that there is no distinction between a “miscarriage of justice” and a “substantial miscarriage of justice”. It is contended that something will either result in a miscarriage of justice or it will not, and that the degree of the miscarriage is of no assistance. The respondent submits that the term “substantial” is important as it speaks to the degree in which evidence needs to be fresh and compelling.
The term “substantial miscarriage of justice” also appears in s 353 of the CLCA which deals with the determination of appeals to the Full Court in ordinary cases. Section 353(1) provides:
(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[Emphasis added]

Section 353(1) employs the concepts of “miscarriage” and “substantial miscarriage” of justice in juxtaposition to each other. The phrase “miscarriage of justice” is used in respect of the third limb of the provision, “on any ground there was a miscarriage of justice”. The phrase “substantial miscarriage of justice” then appears in the proviso which states that, “if [the court] considers that no substantial miscarriage of justice has actually occurred.” There is a significant body of authority considering the interstate equivalents of s 353 and the difference between a “miscarriage of justice” and a “substantial miscarriage of justice”.[6]
[6] See for example, R v Gallagher [1998] 2 VR 671, (1997) 96 A Crim R 300 and the authorities cited therein; R v Weiss [2004] 8 VR 388, (2004) 145 A Crim R 478; R v Konstandopoulos [1998] 4 VR 381, (1997) 99 A Crim R 36.
In R v Gallagher,[7] the Victorian Court of Appeal considered what was then that State’s equivalent of s 353 of the CLCA.[8] Brooking JA comprehensively reviewed a number of authorities from Australia and England which considered the terms of the proviso. Citing the text “The Court of Criminal Appeal” by R E Ross, he observed:[9]
[7] [1998] 2 VR 671.
[8] Section 568 of the Crimes Act 1958 (Vic).
[9] R v Gallagher [1998] 2 VR 671 at 676, (1997) 96 A Crim R 300 at 304.
At pp 121-122 of the work cited R E Ross continued:
Nor does the proviso really apply to the general ground under which the Court must allow the appeal, if they think that "on any ground there was a miscarriage of justice". An actual miscarriage of justice must be shown by the appellant to have been caused by the event or events which form the grounds of the appeal before the Court can interfere with the conviction, on this ground and there can hardly be any real difference between miscarriage of justice and substantial miscarriage of justice. It is in appeals based on the second ground, viz "that the judgment of the Court before whom an appellant was convicted should be set aside on the ground of a wrong decision of any question of law" that the proviso finds its chief application.
In Murphy [1965] VR 187 at 190 Sholl J observed that the proviso hardly seemed applicable to the general, "miscarriage of justice", ground. If there is no miscarriage, then clearly there can be no substantial miscarriage. Compare Cox at 668. But can there be a miscarriage without there being a substantial miscarriage? The passage just cited from the work by Ross raises this difficult question whether an applicant who has shown "that on any ground there was a miscarriage of justice" can be met with the answer, under the proviso, that there has been no substantial miscarriage of justice. Plainly he or she cannot if "miscarriage" means the same as "substantial miscarriage". But if it does have the same meaning, why is the word "substantial" used in one place but not the other? In Haddy [1944] KB 442 at 444 the Court of Criminal Appeal described "substantial" and "actually" as the two key words in the proviso.
The difficulty was adverted to very soon after the establishment of the Court of Criminal Appeal in England in Cohen and Bateman at 207-208:
Taking section 4 with its proviso, the effect is that if there is a wrong decision of any question of law the appellant has the right to have his appeal allowed, unless the case can be brought within the proviso. In that case the Crown have to shew that, on a right direction, the jury must have come to the same conclusion. A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words "any other ground", so that the appeal should be allowed according as there is or is not a "miscarriage of justice". There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted, and therefore, as there is no power of this Court to grant a new trial, the conviction has to be quashed. If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso, notwithstanding that the verdict actually given by the jury may have been due to some extent to such an error of the judge, not being a wrong decision of a point of law. (In fact, s 4(1), like the Victorian s 568(1), did not speak of "any other ground", in creating the third basis of intervention: the subsection is misquoted in this passage, unless the Court intended not to quote it but to state its effect.)
…
The passage from Cohen and Bateman at 207-208 was said by the Court of Criminal Appeal in Haddy at 446 to have been accepted as correct for 35 years. In Stirland v DPP [1944] AC 315 at 321; 30 Cr App R 40 at 47 the correctness of Haddy was accepted in relation to what constituted a substantial miscarriage of justice, but it is not clear whether this carried with it acceptance of whatever view was taken, expressly or by implication, in Cohen and Bateman on the question of the distinction between miscarriage and substantial miscarriage. In Cohen and Bateman the court does seem to have accepted that "miscarriage of justice" in the body of the subsection and "substantial miscarriage of justice" and the proviso did not bear the same meaning.
It will be recalled as a result of the Act of 1966 in England the proviso omitted the word "substantial", referring only to "no miscarriage of justice".
[Underlining added]
In Weiss v The Queen[10] the High Court had occasion to further consider the terms of the proviso in the Victorian Act. There the Court analysed the negative expression “no substantial miscarriage of justice”. The High Court considered no single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given, however, the Court observed that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused’s guilt of the offence on which the jury returned its verdict of guilty. This is, as the High Court subsequently stated in Baiada Poultry v The Queen[11], a necessary but not sufficient condition for the application of the proviso. On the other hand, as the Court said in Weiss, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. There may be cases where it would be proper to allow the appeal and order a new trial even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Such cases include where there has been a significant denial of procedural fairness at trial.[12]
[10] [2005] HCA 81, (2005) 224 CLR 300.
[11] [2012] HCA 14 at [29], (2012) 246 CLR 92 at 105.
[12] [2005] HCA 81 at [44] – [45], (2005) 224 CLR 300 at 317.
More recently in Baini v The Queen,[13] the High Court considered the meaning of the expression “substantial miscarriage of justice” in relation to s 276 of the Criminal Procedure Act 2009 (Vic). Section 276 provides:
[13] [2012] HCA 59, (2012) 246 CLR 469.
276    Determination of appeal against conviction
(1)     On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(2)     In any other case, the Court of Appeal must dismiss an appeal under section 274.
In Baini the majority (French CJ, Hayne, Crennan, Kiefel, and Bell JJ) observed that no single universally applicable description can be given for what is a “substantial miscarriage of justice” for the purposes of s 276. Whether there has been a “substantial miscarriage of justice” ultimately requires a judgment to be made. By reason of the text of s 276, the question whether there has been a substantial miscarriage of justice cannot be confined to cases where it was not open to the jury to convict the accused. A “substantial miscarriage of justice” in s 276 encompasses not only cases where the verdict of guilty cannot be supported by the evidence but also cases where there has been a departure from due process, even if it can be shown that the verdict was open or it is not possible to conclude whether the verdict was open. For the purposes of s 276, it may be possible 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. In other words, the relevant error did not amount to a “substantial miscarriage of justice” if the appellate court concludes in its review of the record that conviction was inevitable.[14]
[14] [2012] HCA 59 at [25] – [28] and [33], (2012) 246 CLR 469 at 479 – 482.
The High Court in Baini warned that caution had to be exercised in construing the provisions of s 276. The Court said consideration of s 276 did not begin with the High Court’s earlier construction of s 568 of the Crimes Act 1958 (Vic) in Weiss. The Court noted that s 276 is not the equivalent of s 568. More importantly, for the purposes of the determination of this application, s 276 is not the equivalent of s 353 of the CLCA. The High Court’s admonition in Baini underlines the point, however, that it is the terms of s 353A, not the terms of s 353 which must be construed in this matter. Having said that, it is a trite proposition that the Court should endeavour to construe the same words or phrase appearing in an Act of Parliament consistently unless good reasons exist for departing from that approach.[15] However, that approach to construction is rebuttable. In McGraw-Hinds (Aust) Pty Ltd v Smith[16] Gibbs ACJ said:
The rule that the same words which occur in different parts of a statute have the same meaning is one which “must yield to the requirements of the context”; it is “only a presumption”.
[Citations omitted]
[15] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452.
[16] (1979) 144 CLR 633 per Gibbs ACJ at 643.
While the High Court’s approach to the construction of the phrase “substantial miscarriage of justice” in Baini must be considered in the particular statutory context of s 276 of the Criminal Procedure Act 2009 (Vic), it provides some guidance to ascertaining the meaning of the same expression in s 353A of the CLCA. However, the meaning of the expression in s 353A must be ascertained by reference to the text, context and purpose of s 353A.[17] Section 353A is concerned with the circumstances justifying the allowance by the Full Court of a second or subsequent appeal against conviction. These circumstances include that an earlier appeal or appeals has or have been dismissed in accordance with the terms of s 353(1), possibly including the application of the proviso. But the right of appeal conferred by s 353A, unlike s 353, is not the common form criminal appeal provision. It is conditioned on the finding that fresh and compelling evidence exists. The work performed by the expression “substantial miscarriage of justice” in s 353A differs from the same expression in s 353. In s 353 the phrase “substantial miscarriage of justice” is really part of the compound negative expression “no substantial miscarriage of justice”. The work to be performed by that expression in the proviso is to confer a discretion on an appeal court to dismiss an appeal notwithstanding that an appellant has made out some relevant error in the trial process which resulted in the appellant’s conviction. The discretion depends upon the appeal court’s satisfaction that, notwithstanding the error, no substantial miscarriage of justice actually occurred by reason of the appellant’s conviction. Accordingly, the onus is on the prosecution to satisfy the appeal court that it is appropriate to apply the proviso. By contrast, s 353A empowers an appeal court to allow an appeal where it thinks a substantial miscarriage of justice has occurred after reviewing the evidence in the light of its receipt of fresh and compelling evidence. Under s 353A the onus is on the appellant to satisfy the appeal court that fresh and compelling evidence exists, that it is in the interests of justice that it should be received and that in the light of that evidence a substantial miscarriage of justice occurred. Accordingly, the Full Court will allow an appeal pursuant to s 353A if it concludes a guilty verdict cannot be supported on the evidence that was adduced at trial in the light of the fresh and compelling evidence it has heard. In my view, that is the test for whether the Full Court will think that there was a substantial miscarriage of justice.
[17] Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307 at [167], (2013) 196 LGERA 234 at 267.
Permission to appeal
It is the practice of the Full Court, in cases where an appeal does not lie as of right,[18] to grant permission to appeal against conviction if the proposed ground of appeal is reasonably arguable. In R v Parenzee,[19] Doyle CJ (with whom Anderson and Kelly JJ agreed) discussed the practice. He said:[20]
The longstanding practice of the CCA is to grant permission to appeal against conviction if the proposed ground of appeal is reasonably arguable. Permission to appeal is usually refused if the ground is not reasonably arguable, or is found to lack any substance, or to have no reasonable prospect of success. Once again, each of these formulations is only a slightly different way of identifying the central issue of whether the proposed ground of appeal has a sufficient prospect of success to warrant the grant of permission to appeal. In other than exceptional cases permission to appeal should not be granted to enable an appellant to pursue grounds of appeal that have no prospect of success.
Deciding this question will usually require the CCA to consider, in a preliminary manner, the merits of the grounds to be argued, both as matters of fact and as matter of law. This is so because the need for permission to appeal will arise because the ground to be raised is not one that "involves a question of law alone".
In the present case the issue is whether, having regard to the evidence relied upon before the CCA, it is reasonably arguable that if permission to appeal is granted, and the appeal is argued in full, the CCA would decide that there had been a miscarriage of justice as a result of the evidence in question not being put before the jury at trial.
[18] See s 352 of the CLCA.
[19] [2007] SASC 316, (2007) 101 SASR 456.
[20] R v Parenzee [2007] SASC 316 at [22] – [24], (2007) 101 SASR 456, [22]-[24].
I see no reason to depart from this practice in relation to applications for permission to appeal under s 353A of Act. Accordingly, in order to obtain a grant of permission to appeal, the applicant must satisfy all the following criteria:
1.   That it is reasonably arguable that the evidence is fresh;
2.   That it is reasonably arguable that the evidence is compelling;
3.   That it is reasonably arguable that it is in the interests of justice to consider the evidence; and
4.   That it is reasonably arguable that in the circumstances there was a substantial miscarriage of justice.
In considering whether to grant permission to appeal, the Court will perhaps not give as much emphasis to the last criterion as it will the first three criteria. In my view, the filtering process involved in deciding an application for permission to appeal requires the Court to be satisfied of the first two threshold criteria. In deciding the third criterion, the Court’s judgment will be informed by a consideration of whether it is arguable that the Court, if it was to hear the appeal, would find that the verdict of guilty resulted in a substantial miscarriage of justice. Necessarily, in hearing an application for permission to appeal the Court will not be in as good a position to determine how strongly arguable this criterion is as the Court on appeal will be. Nonetheless, if the Court is satisfied that it is reasonably arguable that the evidence is compelling, satisfaction as to this matter will inform the question of whether the third and fourth criteria are reasonably arguable.
Adopting this approach I turn to consider the four criteria set out above.
Requirement that the evidence be fresh
For the purposes of s 353A(6)(a)(i) of the CLCA it is obvious the evidence of Dr Rothwell and Dr Harding was not adduced at the applicant’s trial. However, I am not satisfied that it is reasonably arguable that the evidence could not, with the exercise of reasonable diligence, have been adduced at the trial. It is conceded by the applicant that the opinions expressed by Dr Rothwell and by Dr Harding could have been led at trial. It is submitted that it was not led because the evidence presented by Ms Mitchell was misleading and confusing and that the fundamental distinction between “samples” and “sample types” was not understood by all involved at the trial and in the appellate process that followed.
It is unnecessary for the determination of this application that I decide whether or not Ms Mitchell’s evidence was in fact misleading or confusing.
The trial commenced on 14 March 2012. There were two witness statements of Ms Mitchell provided to the defence prior to trial. In the appendix to her statement dated 15 June 2011, which was filed and served on the applicant on 27 June 2011 and formed part of the court file, she states, “FSSA studies have found that of the majority of commonly submitted contact DNA sample types, only about 10% yield a useable DNA profile.” She did not give references to the actual studies. Nonetheless, the applicant was on notice well before Ms Mitchell gave evidence at the trial that Ms Mitchell was of the opinion that items tested for contact DNA often did not give a usable profile, that this was not conclusive evidence against physical contact between the applicant and T, and that there were studies that she considered supported that opinion. She did not make reference to any conclusion that could be drawn from the studies concerning the likelihood of obtaining a useable trace of DNA material from clothing contact exclusively.
If the applicant disputed the opinion expressed by Ms Mitchell in her statement, it was open to him to enquire as to the specific studies that she relied upon and, if he considered it advisable, call his own expert evidence. That is, in essence, what has only now occurred. The applicant has given no convincing explanation to why, with the exercise of reasonable diligence, the evidence now presented could not have been adduced at trial. I am not satisfied that it is reasonably arguable the evidence is fresh evidence.

On the construction I have attributed to s 353A of the CLCA, the finding that it is not reasonably arguable that the evidence is fresh is sufficient to refuse permission to appeal. However, for completeness, I turn to consider the other criteria.
Requirement that the evidence be compelling
The next issue is whether it is reasonably arguable that the evidence is compelling. In my view, it is not reasonably arguable that the evidence of Dr Rothwell and Dr Harding is compelling within the meaning of s 353A.
First, the opinions expressed in the affidavits of Dr Rothwell and Dr Harding that Ms Mitchell’s evidence was confusing and misleading, are inadmissible. Whether something is confusing or misleading is a question of fact. The expertise of Dr Rothwell and Dr Harding does not extend to proffering opinions as to whether a jury would be misled or confused by Ms Mitchell’s evidence.
Secondly, Ms Mitchell’s reference in her evidence to the studies was only provided to support her ultimate opinion that the absence of one person’s DNA material on another person does not mean that they have not had physical contact. She said in evidence that there are many reasons why DNA might not be located on a piece of clothing touched by another person. She was asked in examination-in-chief to explain why a person’s DNA might not be located on a surface even though he or she has come into contact with it. She explained that the reasons for this include whether a person is a good or bad “shedder” of cellular material, the type of surface being tested and the nature of contact a person has with the surface. Her evidence that studies disclosed that only about 10 per cent of samples yielded a useable DNA profile merely was proffered in support of her ultimate opinion. There was no challenge in cross-examination to that ultimate opinion that the lack of DNA material in this case did not exclude the possibility that T had come into contact with the applicant. Moreover, neither of the experts relied upon for the purposes of this application contest the proposition. On the contrary, Dr Rothwell is of the opinion that the “negative” DNA results do not positively exclude the presence of the applicant’s DNA on T or of T’s DNA on the applicant, although this could be one explanation. Importantly, he agrees with Ms Mitchell that the negative DNA result does not necessarily mean that there was no contact between the applicant and T.
Thirdly, it is appropriate to consider Ms Mitchell’s evidence in the context of the issues at trial. Section 353A(6)(b)(iii) provides that evidence is compelling if it is highly probative in the context of the issues in dispute at trial. The issue to which Ms Mitchell’s evidence is relevant was whether the absence of DNA material undermined the prosecution case that it was the applicant who attempted to abduct T. That is to say, the issue was one of identification. The case against the applicant relied upon the evidence of the complainant and circumstantial evidence.
T gave evidence that the offender touched her on the top of her right arm and that he grabbed her on the top of her left arm. She gave no evidence of any contact between the singlet that she was wearing and the offender. Her evidence of contact with the offender was that she pushed against him with her arm, making contact with his arm and chest area. She said that she hit the offender around the collarbone and facial area. There was no evidence of prolonged contact or of items of clothing being held onto. This evidence was relevant in the context of Ms Mitchell’s explanation as to why there could be physical contact between two persons without any trace of DNA material being found on either of them. The evidence of Dr Rothwell and Dr Harding does not contradict Ms Mitchell’s evidence that this is possible. The lack of contact by the applicant with T’s clothing and the very brief contact between her and his clothing are obvious explanations for the failure to find useable DNA. The FSSA studies were of limited significance to this conclusion.
Finally, the applicant relied upon what I understand he asserts is Dr Harding's opinion about the effect of the FSSA studies which purportedly demonstrate that the likelihood of obtaining a useable trace of DNA material from clothing contact is about 66 per cent rather than 10 per cent. It is not clear to me that this is the effect of Dr Harding’s opinion. Assuming, for the purposes of the determination of this application for permission to appeal, that is the effect of Dr Harding’s opinion, I do not consider that leads to the conclusion that it is arguable that the evidence of Dr Harding’s opinion is compelling. That opinion supports the contention that there is a greater chance of obtaining a useable trace of DNA material from clothing contact but does not detract from Ms Mitchell’s ultimate opinion.
Having regard to these factors, I am of the view that it is not reasonably arguable that the evidence is highly probative in the context of the issue of identification. While the evidence in relation to the studies was given to support Ms Mitchell’s opinion that the lack of DNA material matching the applicant on T’s clothing or matching T on the applicant’s clothing did not preclude the applicant as being the person who attempted to abduct T, this evidence was adduced by the prosecution to exclude as a reasonable possibility that it was not the applicant who had attempted to abduct T. There was other evidence of identification. There was the powerful evidence of the record made by T of the car registration and the description of the applicant’s motor vehicle. T also gave a general description of her attacker which matched the applicant. In my view, the evidence on which the applicant seeks to rely is not highly probative of the issue.
The requirement that it is in the interests of justice to consider the evidence
Given the conclusion that it is not arguable that the evidence relied on by the applicant for the purposes of this application for permission is fresh or compelling within the meaning of s 353A, it is not arguable that it is in the interests of justice that the evidence be considered on appeal.
The requirement that in the circumstances there was a substantial miscarriage of justice
Finally, I am not persuaded that it is arguable that in the circumstances there was a substantial miscarriage of justice. For the reasons set out above, I do not consider the evidence relied on by the applicant for the purpose of this application could persuade the Full Court that there was a substantial miscarriage of justice in this case. The evidence does not impugn the verdict of guilty. It does not cast doubt on the fundamental opinion of Ms Mitchell. It is not sufficient to raise the possibility that the Full Court would conclude that the verdict of guilty was anything other than inevitable.
Applicant’s further submissions
Subsequent to the hearing of the application for permission, the applicant filed a further written submission annexing an excerpt from a summing up by Judge Davison in the trial of R v Mameledzija and Mameledzija[21] and a further opinion of Dr Harding. I have considered these further submissions and the annexures. The submissions address two topics. First, the directions given to the jury at the applicant’s trial. Secondly, authorities relevant to the meaning of the expression “substantial miscarriage of justice” in s 353A of the CLCA. The submissions in relation to the trial judge’s summing up do not assist in deciding whether to grant permission to appeal. First, because the application for permission to appeal does not raise any error in the trial judge’s directions to the jury. Secondly, because the submission goes nowhere unless I consider it reasonably arguable that the evidence of Dr Harding and Dr Rothwell is fresh within the meaning of s 353A. For the reasons set out above, I have concluded that it is not. In relation to the second topic, I have addressed the question of construction of “substantial miscarriage of justice” earlier in these reasons.
[21] District Court Summing Up given 4 October 2013.
Conclusion
I refuse permission to appeal.