R v Henry Vincent Keogh (No. 2) No. SCCRM 95/420 Judgment No. 6152 Number of Pages 9 Criminal Law

[1997] SASC 6152

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

MATHESON, MILLHOUSE AND MULLIGHAN JJ

Application to re-open appeal - appellant convicted by jury of deliberately drowning his fiancee in bath - appeal to Court of Criminal Appeal dismissed on merits on December 1995 and order perfected - application made for special leave to appeal to High Court but not yet heard - unsuccessful petition to Governor pursuant to s369 of Criminal Law Consolidation Act - application to reopen appeal incompetent and dismissed.

R v Edwards (No 2) [1931] SASR 376; Grierson v The King (1938) 60 CLR 431; The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988)49 SASR 465; Albert Joseph McNamara (1996) 86 A Crim R 339, applied. R v Allen [1994] 1 Qd R 526; Salvatore Lapa (No 2) (1995) 80 A Crim R 398; Pantorno v The Queen (1989)166 CLR 466, considered .

ADELAIDE, 1, 6 May 1997 (hearing), 13 May 1997 (decision)

#DATE 13:5:1997

#ADD 21:5:1997

Applicant:

Counsel: Mr M J Sykes

Solicitors: Sykes Bidstrup

Respondent:

Counsel: Mr P J Rofe QC

Solcitors: DPP (SA)

Order: application dismissed.

MATHESON J

1. On 23 August 1995, the applicant Henry Vince Keogh was convicted by a jury of murdering his fiancée Anna Jane Ross Cheney on 18 March 1994. He appealed to the Court of Criminal Appeal. That court was constituted by Matheson, Millhouse and Mullighan JJ. It dismissed the appeal on 22 December 1995. The applicant was represented both at trial and before the Court of Criminal Appeal by Mr Michael David QC (as he then was). The applicant filed an application for special leave to appeal to the High Court on 9 February 1996, but the application has not yet been heard. We were informed from the bar table that the applicant changed solicitors in March 1996, and that Mr T Game SC had been briefed. He was subsequently advised to petition the Governor pursuant to s369 of the Criminal Law Consolidation Act before bringing on for hearing the application to the High Court. Section 369 provides:

"369 Nothing in this Part affects the prerogative of mercy but the Attorney-General, on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on information or to the sentence passed on a person so convicted, may, if he thinks fit, at any time, either -

(a) refer the whole case to the Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or

(b) if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to those judges for their opinion and those judges, or any three of them, shall consider the point so referred and furnish the Attorney-General with their opinion accordingly." 2. The applicant's Petition was dated 17 December 1996, and the applicant stated therein, inter alia:

"This petition relates to the evidence given at the trial by a forensic pathologist, Dr. Manock. This evidence was a central part of the Crown's case. In particular, Dr. Manock provided a theory as to how the death might have been caused. It is submitted that, having regard to both the evidence available at trial and the material now available (arising from an inquest in which Dr. Manock was heavily criticised), Dr. Manock's evidence must be regarded as unreliable." 3. On 3 March 1997, the Governor's Official Secretary, Mr P G Bassett, wrote to Mr M Sykes, solicitor for the applicant, in the following terms:

"I refer to your letter of 11th February, 1997 and to earlier correspondence concerning your Petition on behalf of Mr. H. V. Keogh dated 17th December, 1996. His Excellency the Governor referred the matters raised in the Petition to his Ministers who have now advised that it would not be appropriate for him to take any action in respect of the Petition. Ministers have also noted that Mr. Keogh still has an application for leave to appeal to the High Court which has not yet been pursued.

I have to inform you that His Excellency has accepted this advice." 4. On 6 March 1997, Mr Sykes wrote in the following terms to Mr Bassett:

"We refer to your letter of 3 March 1997.

We note that the Petition has not been granted in effect. We also note that His Excellency the Governor took the advice of his Ministers in that regard. In order to properly advise our client we shall be grateful if you will let us know which Ministers so advised His Excellency and provide to us a copy of the reasons given for their advice.

We look forward to the information sought as soon as possible as our client may be required to pursue other remedies in light of this development." 5. On 10 March 1997, Mr Bassett replied as follows:

"Thank you for your letter of 6th March, 1997 on behalf of your client, Mr. H. V. Keogh.

Advice in respect of your client's Petition was provided by the Attorney-General, through the Premier. I regret that I am unable to furnish you with a copy of the reasons for the advice. However, I am able to say that Ministers noted that an appeal to the Court of Criminal Appeal did not disturb the verdict of the Trial Court, and that as there is still an avenue of appeal to the High Court, the petitioner should pursue that appeal." 6. By an application dated 4 April 1997, the applicant now applies for leave to re-open the appeal against the conviction to "present argument in support of a new ground of appeal, namely, that the trial miscarried by reason of the unavailability at trial of evidence which would establish that no reliance could be placed upon the opinions and evidence of Dr Manock". The application specified the nature of any question of law to be raised in this way:

"The inherent jurisdiction of the Court to reopen an appeal against conviction to advance new grounds (while there is pending an application for special leave to appeal to the High Court against orders of the Court dismissing the appeal) and notwithstanding the determination of that appeal against conviction and the perfection of the Court record." 7. In his written submission to this court on the present application, the applicant's junior counsel, Mr Sykes, stated:

"In the petition the applicant alleges that there has been a miscarriage of justice by reason of the failure of counsel on the appeal to raise fresh evidence concerning Dr Manock and by reason of the unavailability of material relating to Dr Manock at trial. Behind the application lies the submission that the Crown was putting forward Dr Manock as a competent forensic expert when it was clear to the Crown that he was not. While in this trial the Director of Public Prosecutions was extolling Dr Manock as a forensic pathologist whose evidence should be preferred above others in the field, senior counsel for the Crown Solicitor was assisting the Coroner in the process of systematically proving that Dr Manock fell short of the standards expected of such experts. This material was not disclosed to the defence." 8. In an affidavit in support of his Petition dated 17 December 1996, the applicant deposed:

"2. During 1995 I was aware that the Coroner was conducting an inquiry into the deaths of a number of infants. I became aware of the inquiry through reports in the press.

3. In the course of the process of giving instructions to and receiving advice from my solicitor and counsel the question arose as to whether the defence should raise in the second trial the criticism apparently being made, according to the press reports, of Dr. Colin Manock in the Coroner's inquiry.

4. The advice I received from my senior counsel Mr Michael David Q.C. was to the effect that the evidence he would be leading for the defence from the senior pathologists who would be called in the defence case was sufficient to effectively contradict Dr. Manock on a number of important topics including the theory of concussion and the aging of bruises and the combined force of this defence evidence would be sufficient to neutralise the force of his arguments including the theory propounded for the drowning.

5. After the second trial and the verdict of guilty I discussed with my solicitor and counsel the grounds of appeal filed in the Court of Criminal Appeal. It was the advice given to me, but I cannot remember by which of these professional advisers, that Mr Michael David Q.C. was confident that the grounds of appeal that had been filed were sufficient in themselves and that the Finding of Inquest of the Coroner (Finding) which had been handed down a few days after the verdict was neither here nor there so far as the appeal was concerned. I was given to understand from that advice that the Finding would not assist my case any further. I was not given a copy of the Finding by my solicitor or counsel and I was therefore not in a position to disagree with that advice. I accepted it." 9. Counsel for the applicant does not dispute that the order finally dismissing his appeal has been "perfected", a word that is used in some of the cases. The information was apparently endorsed by the Clerk of Arraigns that the appeal had been dismissed on the same date that judgment was delivered. Rule 16 of the Criminal Appeal Rules published in the South Australian Government Gazette of 21 March 1996 at p702 provides:

"16. On the final determination of any appeal ... the Registrar shall give notice by Form No. 10 or Form No. 11 of such determination to the Trial Judge, to the appellant and to such other persons as the Registrar considers appropriate." 10. The Registrar gave notice in accordance with Form No 10 to the trial Judge and to the applicant in accordance with the Rule.

11. A similar application to the present application failed in the case of R v Edwards (No 2) [1931] SASR 376. The judgment of the court (Angas Parsons, Napier and Piper JJ) was read by Angas Parsons J. At p378, his Honour said:

"There is no express power to entertain a second appeal, or to hear a second application for leave to appeal, and there is no precedent in either case for its being done." 12. At p380, his Honour said:

"Before the passing of the Criminal Appeals Act 1924, a man who had been convicted, though in truth he were innocent, had no alternative but to apply for clemency under the Royal prerogative of mercy. Then came a time when, in order to prevent miscarriages of justice, a right of appeal was given, and it was given as of right on questions of law, but subject to leave on questions of fact. But there might be cases, despite an appeal having been heard, where justice requires some further investigation, and in order to meet such cases in South Australia, power was entrusted to the Chief Secretary to make a proper investigation of any petition presented to him for mercy, and if after such proper investigation was made he obtained the concurrence of the Attorney-General, he could transmit it to this Court, which would then be clothed with power to re-open the matter.

The consequences of holding that this Court has jurisdiction to entertain further appeals from time to time after the dismissal of an appeal, would lead to manifest inconvenience and, possibly, great absurdity. A convicted person who, after his appeal has failed, makes discovery of evidence from which an inference can properly be drawn that it is reliable and likely to have affected the verdict of the jury if they had heard it, is not left by the Act without redress, for he can apply under sec. 22, and then, if the Chief Secretary thinks fit, he may, with the concurrence of the Attorney-General, refer the whole case to the Full Court for hearing and determination, as in the case of an appeal by a person convicted. It is the jurisdiction under sec. 19 of the English Criminal Appeals Act - which is the same in language as sec. 22 of the South Australian Act - which has repeatedly been invoked for the purpose of enabling the Court to reconsider a conviction which has been confirmed after a previous appeal. On the language of the Act and applying the principle of the decisions on the civil side, which have been quoted, we think we have no jurisdiction to grant the leave to appeal which is sought. The application for extension of time will therefore be refused." 13. This case was followed by the High Court in Grierson v The King (1938) 60 CLR 431. The New South Wales Court of Criminal Appeal had dismissed an appeal from convictions and sentences for robbery and maliciously causing grievous bodily harm in 1933. In 1934, the relevant Minister refused to recommend an enquiry into the conviction pursuant to s475(1) of the Crimes Act 1900 (NSW). In 1937 Grierson applied again for leave to appeal against his convictions and sentences. The New South Wales Court of Criminal Appeal dismissed the application. The relevant part of that court's judgment appears in the report of the appeal to the High Court in (1938) 60 CLR 431 at pp432-433, and reads:

"In the course of his judgment, with which Davidson and Halse Rogers JJ. concurred, Jordan C.J. said:- 'The point which has been raised is exactly covered by the decision ... in R. v. Edwards [No. 2] (1931) SASR 376, and I am of opinion that this court should follow that decision. When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisers or whenever a new fact is alleged to have come to light. This does not mean that injustice must necessarily occur when new substantial evidence pointing to a prisoner's innocence is discovered after his appeal has been finally disposed of. In such a case recourse may be had to sec. 26 of the Criminal Appeal Act of 1912, or to sec. 475 of the Crimes Act 1900. There is no reason to suppose that the procedure provided by those sections is not adequate for the consideration of any matter which it may now be sought to raise on behalf of the prisoner. For these reasons I am of the opinion that the preliminary objection taken on behalf of the Crown must be sustained, and that we must decline to entertain the present application." 14. The High court unanimously dismissed Grierson's appeal.

15. Both these cases were applied in The Queen v Shannon (1982) 32 SASR 5. The facts sufficiently appear in the following passage from the headnote:

"In December 1978 S. pleaded guilty to two charges of armed robbery, a charge of pharmacy breaking and larceny, and a charge of attempting to escape from prison. He had been in custody for 144 days pending the hearing of the charges. The sentencing Judge sentenced him first on the charge of attempted escape and imposed a sentence of 143 days' imprisonment, dated back 143 days, so that the sentence had expired before the day of sentencing. He then sentenced S. to six years' imprisonment on each of the charges of armed robbery, the first of these sentences to commence on that day, and the second to take effect on the expiration of the first. Finally, for the offence of pharmacy breaking and larceny S. was sentenced to two years' imprisonment to be served concurrently with the second armed robbery sentence.

S. appealed to the Court of Criminal Appeal against the sentences for armed robbery; and the appeal was dismissed in July1979.

More than three years later, in October 1982, S. applied for an extension of time to appeal against all four sentences on the ground that the sentences offended against the provisions of s. 310 of the Criminal Law ConsolidationAct, 1935-1981." 16. The court, Mitchell, Cox and Bollen JJ, held that S, having appealed against the sentences for armed robbery, had exhausted his rights of appeal in respect of those sentences and had no right to institute a second appeal or to re-open the first appeal.

17. The next case is R v Caruso (1988) 49 SASR 465. The court, White, Legoe and von Doussa JJ, considered that there was jurisdiction to consider an application for leave to appeal against conviction after an appeal against sentence has been entertained and determined, but held that there was no jurisdiction to re-open the appeal against sentence on the facts of that case because the order of the Court of Criminal Appeal pronounced on 27 November 1987 disposing of the appeal against sentence had been entered upon the record of the court of trial in compliance with Rule 35(2) of the Criminal Appeal Rules1935 (as amended). At p477, White J said

"The orders of the Court of Criminal Appeal are not ordinarily drawn up and sealed unless a party wishes this to be done to formalise the orders for some purpose." 18. He then quoted the rules as they then existed, and held that there had been a final determination of the appeal.

19. The applicant sought to rely on the decision of the majority of the Queensland Court of Criminal Appeal in R v Allen (1994) 1 Qd R 526. The majority, de Jersey and Dowsett JJ, said that the court had inherent jurisdiction to vary its order where the order arose from a slip or accidental omission, notwithstanding that such order had been perfected. The facts in that case were special, but be that as it may, I gratefully adopt the comments thereon of the Victorian Court of Appeal in the case of Albert Joseph McNamara
(1996) 86 A Crim R 339. The court, Winneke P, Charles JA and Southwell AJA, said:

"In Allen, an applicant appeared in person before the Court of Criminal Appeal on 14 November 1991, and at the conclusion of the hearing the court announced its decision that 'The appeal is dismissed', which, in the words of Dowsett J (at 530) 'followed the relatively unusual, although not unheard of, practice of pronouncing a judgment without giving our reasons'.

The matter was re-listed on 13 December 1991 to enable the court to hear argument upon a point initiated by the court. In any event, the majority held that the applicant was entitled to succeed upon a point not earlier argued, and not, so it would appear, the subject of any ground of appeal. It seems probable that when the judges were preparing reasons, they first noticed a fatal misdirection in the judge's charge to the jury.

Macrossan CJ, after stating that no authorities had been cited during the hearing, said (at 527): 'I would be persuaded that only in the most exceptional cases would the court, having pronounced its decision, and that decision being perfected, invite or allow a reopening and a contrary decision.'

His Honour held that the circumstances were not 'most exceptional'.

The majority, however, reasoned that the court should intervene, since the 'appellant has suffered as a result of coincidence of unusual circumstances', which included the fact that the relevant direction in the charge, which had been thought to have been in correct and conventional terms, had subsequently been found by the High Court to have constituted a misdirection. The justification for the intervention was stated by Dowsett J, with whom de Jersey J agreed, in these terms (at 529): 'Whether the slip rule applies to proceedings on the criminal side in this Court or not does not matter. If it does not, then the inherent jurisdiction is available.'

It is to be observed that in the reasons for judgment no reference was made to any of the authorities which have been discussed in these reasons. It could be argued that Allen is distinguishable in that, since the applicant was unrepresented upon the appeal, it had not been 'fully argued' (to borrow that expression from Grierson). Be that as it may, the judgments do not persuade us that this Court is free not to follow Grierson." 20. We were also referred to the case of Salvatore Lapa (No 2) (1995) 80 A Crim R 398. In delivering the judgment of the Court of Criminal Appeal, Clarke JA referred to Allen at p403, stating, however, that "its correctness need not be considered". I do not regard the case of Lapa as helpful to the applicant because there the application had preceded the perfection of the order.

21. In McNamara, supra, the Victorian Court of Appeal unanimously held that in the absence of fraud or some fundamental procedural mistake, the court had no jurisdiction to accede to an application, however made, to open an appeal or an application for leave to appeal which has been determined on the merits. It said the court is functus officio.

22. Counsel for the applicant sought to rely on the following passage from the judgment of Deane, Toohey and Gaudron JJ in Pantorno v The Queen (1989) 166 CLR 466 at p484:

"There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court. In view of the shortness of the minimum sentence to be served by the applicant, however, it would be inappropriate for this Court now to relist the matter for further argument so that the validity of the assumption (about which we express no view) that the Court of Criminal Appeal now lacks jurisdiction could be examined." 23. The Victorian Court of Appeal made the following comment on the dictum just quoted in McNamara, supra, at p348:

"In our view, these observations cannot be read as casting doubt upon the authority of Grierson. There has not in the present case been any denial of procedural fairness, nor has there been any mistake of the nature discussed in the cases to which reference has been made. At most, there may have been error of judgment on the part of counsel in deciding not to argue ground 9. However, if error existed, it was certainly not of a nature which might entitle an applicant to relief. As to errors of judgment by counsel: see the discussion in Marziale (unreported, Court of Appeal, Vic, File No 208 of 1995, 18 April 1996) at 24-28." 24. I also observe that so far as one can judge from the report of Pantorno in 166 CLR, none of the cases such as Grierson were cited.

25. The Director of Public Prosecutions, Mr P J Rofe QC, in addition to submitting that the application was incompetent, reminded the court of the following passages in the summing-up of the learned trial Judge at p36 thereof:

"Well, ladies and gentlemen it is accepted on both sides, that is by the Crown and the defence, that the pathology evidence, by itself, does not solve this case for you. That does not mean that none of this evidence is of any use to you at all. There are some conclusions which you might think are open to you on the evidence, although the findings of fact are matters for you ...

There is no pathology evidence from the Crown that the death was clearly or even probably caused by deliberate drowning, and I emphasise that is dealing with the pathology evidence. Deliberate drowning caused in a particular way has been accepted as a possibility on the evidence; that is the lifting of the legs and the pushing under of the head. But there is also evidence before you that accidental drowning was a possibility." 26. He also referred to the last paragraph of my judgment on the appeal which read:

"Having now reviewed the evidence and his Honour's treatment thereof, I propose to draw the strands together as one must in a circumstantial case, (see Chamberlain and Another v The Queen (1983) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573). It was not disputed by the pathologists, nor by one's common experiences of life, that it would be unusual, if not extraordinary, for a fit, healthy, 29 year old used to drinking alcohol to drown in her bath after drinking several glasses of wine. The appellant clearly had the opportunity to drown her deliberately, either before he visited his mother (if he did) or after, and was the last person to see her alive. He had a motive, namely to obtain his freedom and the means to enjoy it. The evidence of Georgiou and Manzitti pointed to the drowning being deliberate. Bruising found on the deceased, and in particular on the left shin, pointed to the modus operandi demonstrated by Dr Manock. The opinions of Drs Manock and James supported such a modus operandi, and neither Dr Ansford nor Professor Cordner rejected it. Epilepsy and myocarditis appear unlikely. A faint, whether or not due to postural hypotension, would be unlikely to cause the number and situation of bruises on the deceased. Falling to sleep would probably have led to her coughing and awakening. The appellant has clearly told some lies. The jury saw him cross-examined in the witness box. Their verdict indicates they did not believe him, and I am not surprised. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that he deliberately drowned his fiancée. I think their verdict was correct. I would dismiss the appeal." 27. Mr Rofe submitted that there was no merit in any event in the proposed ground of appeal given that:

"(a) the coronial criticism of Dr Manock was confined to the facts of that inquiry;

(b) the evidence of Dr Manock was extensively tested at the trial;

(c) three other pathologists gave evidence at the trial contradicting or modifying opinions of Dr Manock, and

(d) the prosecution case was not reliant solely on the evidence of Dr Manock." 28. As I have reached a clear view that on the authorities the application is incompetent, there is no need for me to rule on Mr Rofe's additional submissions.

29. I would dismiss the application.

MILLHOUSE J

30. I agree.

MULLIGHAN J

31. I agree that the application should be dismissed. We should follow the decisions in R v Edwards (No 2) [1931] SASR 376, Grierson v The King (1938) 60 CLR 431, The Queen v Shannon (1982) 32 SASR 5 and R v Caruso (1988) 49 SASR
465. We have no jurisdiction to .entertain a second appeal or re-open the appeal and I agree with the reasons expressed by Matheson J on that matter.

32. As Mr Sykes did not have the opportunity to develop a submission on the merits of a fresh appeal, I make no observation about that matter.