R v Drummond (No 2)

The Full Court of the Supreme Court of South Australia, comprising Gray, Peek, and Blue JJ, considered an appeal by the applicant, R, against a conviction. The central dispute revolved around the admissibility and impact of new evidence presented on appeal, and whether its exclusion or the circumstances surrounding its availability constituted a substantial miscarriage of justice.

The court was required to determine whether the new evidence was "fresh and compelling" and if its consideration was "in the interests of justice." Subsequently, the court had to assess whether it was reasonably arguable that a substantial miscarriage of justice had occurred, justifying the grant of permission to appeal, and if such a miscarriage had indeed occurred, warranting the allowance of the appeal. The court also considered the definition of a "substantial miscarriage of justice" in the context of irregularities in or connected with a trial, including the wrongful admission or rejection of evidence, or misleading evidence.

The court reasoned that the very reasons for the new evidence being fresh and compelling rendered it in the interests of justice to consider it, thereby satisfying the initial threshold criteria under subsection 353A(1). The court then applied the principles established in cases such as *R v Keogh (No 2)* and *Baini v The Queen*, which define a substantial miscarriage of justice. This can occur when there has been an irregularity in the trial, such as the wrongful admission or rejection of evidence, or misleading evidence, which alters the state of evidence presented to the jury. The court indicated that such an error ordinarily leads to a substantial miscarriage of justice unless the conviction was inevitable regardless of the error.

The court concluded that the criteria specified in subsection 353A(1) were satisfied, and it was appropriate to proceed to consider whether a substantial miscarriage of justice had occurred. The court found that the new evidence was fresh and compelling and that it was in the interests of justice to consider it. The court then determined that it was reasonably arguable that there had been a substantial miscarriage of justice, justifying the grant of permission to appeal.