R v Keogh

Case [2014] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Permission to Appeal)

R v KEOGH

[2014] SASCFC 20

Reasons for Decision of The Honourable Justice Nicholson

11 March 2014

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

The applicant has applied pursuant to s353A of the Criminal Law Consolidation Act 1935 for permission from the Full Court to bring a second appeal against his conviction in 1995 for murder. Consideration given to (but without deciding) a number of matters, including whether the requirements of s353A(1) pertain to the question of jurisdiction and, if so, whether it is inappropriate to determine these matters in the context of an application for permission to appeal. The applicant has raised the one ground of appeal permitted pursuant to s353A(3) - was there a substantial miscarriage of justice.

Held:

(i)  Each of the applicant’s sub-grounds of appeal (paragraphs 15.1, 15.2 and 15.3 of the amended notice of appeal) is reasonably arguable and the applicant’s ground of appeal (paragraph 15) that there was a substantial miscarriage of justice is reasonably arguable.

(ii) The questions of whether each of the requirements under s353A(1) of the Criminal Law Consolidation Act 1935 bear on the issue of permission or the issue of jurisdiction are referred to the Full Court, to be heard at the same time as any appeal.

(iii) The questions of whether or not the requirements of s353A(1) are satisfied in this case are referred to the Full Court, to be heard at the same time as any appeal.

(iv) Notwithstanding the findings in (i) above but consequential on the orders in (ii) and (iii) above, the question of permission under s353A(2) is referred to the Full Court, to be heard at the same time as any appeal.

Criminal Law Consolidation Act 1935 s352, s353A, s369; Supreme Court Act 1935 s48; Evidence Act 1929 s34KA, s45A and s45B, referred to.
R v Keogh [1995] SASC 5397; R v Keogh (No 2) [1997] SASC 6512; Keogh v The Queen [1997] HCA Trans 313; R v Keogh [2007] SASC 226; Keogh v The Queen [2007] HCA Trans 693; Grierson v The King (1938) 60 CLR 431; R v Parenzee [2007] SASC 143; R v Parenzee (2007) 101 SASR 456 ; R v Drummond [2013] SASCFC 135; Mallard v R (2005) 224 CLR 125; Davies & Cody v R (1937) 57 CLR 170; Cesan v R (2008) 236 CLR 358; Nudd v R (2006) 162 A Crim R 301; R v Scott [2012] SASCFC 137; Driscoll v R (1977) 137 CLR 517; R v Johnson (1979) 22 SASR 161; Maric v R (1978) 20 ALR 513; Harriman v R (1989) 167 CLR 590; R v Hutchinson (1990) 53 SASR 587

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AGLC
R v Keogh [2014] SASCFC 20
Case
[2014] SASCFC 20
Decision Date

CaseChat Overview and Summary

This matter concerned an application for permission to appeal by the applicant, R v Keogh, before Nicholson J. The central dispute revolved around whether the applicant should be granted permission to appeal their conviction, with the applicant asserting a substantial miscarriage of justice had occurred.

The primary legal issue before the court was the meaning and application of the phrase "substantial miscarriage of justice" as contemplated by section 353A(3) of the relevant legislation. This also involved considering the applicant's assertion that certain evidence was "fresh" and "compelling" and should be considered on appeal under section 353A(1), and whether these matters were appropriate for determination at the permission stage.

Nicholson J noted that the test for granting permission to appeal is whether the proposed ground of appeal has a sufficient prospect of success, typically assessed by whether it is reasonably arguable. While the court expressed doubts about considering the "fresh and compelling" evidence at the permission stage, it considered the ground of appeal alleging a substantial miscarriage of justice to be a proper subject for this stage. The court referred to established authorities, including *Davies & Cody v R*, which explained that a miscarriage of justice occurs not only when there is affirmative reason to believe the appellant is innocent, but also when it appears unjust or unsafe to allow a verdict to stand due to a failure in the trial process or a substantial possibility that the jury was mistaken or misled.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
Again, this is a controversy that I do not need to and, in my view, should not, resolve at the permission stage. It may transpire that particular acknowledged fresh and compelling evidence, cannot properly be evaluated in the absence of other evidence available to the applicant although not deployed at trial. Such a consideration may have a bearing on the resolution of this controversy. Such a consideration also suggests that a determination of this controversy in the abstract, that is, without first determining which of the evidence relied on by the applicant is fresh and compelling and which is not, would not be helpful or appropriate. Conclusion I have considered the materials and the submissions relied on by the parties before me. The central question on an application for permission to appeal is whether the proposed ground of appeal has a sufficient prospect of success to warrant the grant of permission.[26] The test is typically expressed in terms of whether a ground of appeal under consideration is reasonably arguable.[26] R v Milton [2009] SASC 44. The single ground of appeal relied on by the applicant in the amended notice of appeal is that there was a substantial miscarriage of justice, as particularised in the three ways set out in paragraph 15 of the amended notice of appeal. This single ground of appeal picks up s353A(3). The applicant has asserted that the evidence relied on in support of this single ground of appeal, is “fresh” and “compelling” and should, “in the interests of justice” be considered on appeal (picking up s353A(1)). The applicant has asserted this in the amended notice of appeal as grounds why permission should be granted. I have earlier explained my doubts concerning the appropriateness of considering the s353A(1) matters at the permission stage. I do consider that the ground of appeal relied on – was there a substantial miscarriage of justice at the trial – is properly a subject for consideration at the permission stage. This raises for consideration the meaning to be given to the phrase “substantial miscarriage of justice”. The meaning of the phrase substantial miscarriage of justice, as used in s353A(3) raises issues of statutory construction of some difficulty. The phrase “miscarriage of justice” as it is used in the Australia wide common form provisions governing the determination of (first) appeals in ordinary cases has been explored often in the authorities.[27] Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) provides, in this respect: The Full Court on any such appeal against conviction shall allow the appeal if… on any ground there was a miscarriage of justice… .[27] See, only by way of example, Mallard v R (2005) 224 CLR 125; Cesan v R (2008) 236 CLR 358; Nudd v R (2006) 162 A Crim R 301; R v Scott [2012] SASCFC 137 and Davies & Cody v R (1937) 57 CLR 170. By way of illustration only, the High Court in Davies & Cody v R[28] said that the duty to quash a conviction where a court thinks on any ground there was a miscarriage of justice covers:Not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the Courts view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled. [28] (1937) 57 CLR 170 at 180 (in a single judgment of the Court comprising Latham CJ, Rich, Dixon, Evatt and McTiernan JJ).

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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