R v Keogh - [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; R v Nylander [2003] SASC 191; Festa v R (2001) 208 CLR 593; Weiss v R (2005) 224 CLR 300; Mickelberg v R (1989) 167 CLR 259; R v Milton [2009] SASC 44, considered.

R v KEOGH
[2014] SASCFC 20
NICHOLSON J.
Introduction

The applicant, Henry Vincent Keogh, has applied, pursuant to s353A of the Criminal Law Consolidation Act 1935, for permission to appeal against his conviction for murder. The Director of Public Prosecutions has opposed the application for permission. The applicant was found guilty by a jury, on 23 August 1995, of murdering his then fiancé, Anna Jane Cheney.[1] He was sentenced to life imprisonment with a non-parole period of 25 years. Until recently, the applicant, for many years now, had exhausted all formal rights of appeal.[2] However, on 5 May 2013, s353A of the Criminal Law Consolidation Act 1935 commenced operation. That section confers jurisdiction on the Full Court of this State (sitting as the Court of Criminal Appeal) in the circumstances set out in that section, to hear a second or subsequent appeal against conviction by a person convicted on information. Section 353A is in the following terms.
[1]    This was the second trial a first trial had resulted in a hung jury.
[2] That is, apart from the procedure available under s369 of the Criminal Law Consolidation Act 1935 to petition the Governor of the day for mercy which always remains available to a person convicted on information.
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 order to succeed with any appeal heard pursuant to s353A the applicant would need to persuade the Court of Criminal Appeal that there was a “substantial miscarriage of judgment”.[3]
[3] Sub-section 353A(3) of the Criminal Law Consolidation Act 1935.
Leaving aside the question of jurisdiction for the moment, according to s353A(2) a convicted person may only appeal under this section with the permission of the Full Court. The question of permission to appeal against conviction, whether it be a “first” appeal[4] or a “second or subsequent” appeal[5] is regulated by s48 of the Supreme Court Act 1935. Such an application for permission can be heard by a single judge sitting as the Full Court “in the same manner as the Full Court and subject to the same provisions”.[6] However, an applicant has an unfettered entitlement to have any application for permission which has been refused by a single judge reconsidered de novo by the Full Court. Sub-section 48(4) provides:
If a judge refuses an application by an appellant to exercise any power of a kind referred to in sub-section (3) [which powers include the power to give permission to appeal] in his or her favour, the appellant is entitled to have the application determined by the Full Court.
[4] Section 352 of the Criminal Law Consolidation Act 1935.
[5] Section 353A of the Criminal Law Consolidation Act 1935.
[6] Sub-section 48(3) of the Criminal Law Consolidation Act 1935.
The applicant has filed a notice of appeal (since amended) against his conviction, together with supporting documentation. The material parts of the amended notice of appeal are as follows.
E.Grounds of appeal against conviction (whether or not permission to appeal is required and whether or not an extension of time is sought).
15. The following are the grounds of appeal against conviction.
1.There was a substantial miscarriage of justice as:
1.1demonstrated by the discovery of fresh evidence, which fresh evidence is set out in the annexure RR1 to the affidavit of Ross Richards sworn on 20 June 2013 and filed in support of the application (“the Richards affidavit”).
Particulars:
1.1.1Forensic evidence obtained since the trial casts doubt upon the validity of the opinions of Dr Manock and Dr James as to the likely cause of death, the mechanism of that cause and Dr Manock’s interpretation of the pathology results.
1.1.2There have been admissions by Dr Manock that he had not made observations at the autopsy that he said at trial that he made.
1.1.3There have been admissions by Dr Manock that opinions he and Dr James expressed at trial were incorrect or alternatively, ought to have been qualified.
1.2a result of the nondisclosure of forensic evidence, in particular by Dr Manock, details of such nondisclosure are set out in the annexure RR1 to the Richards affidavit.
Particulars:
1.2.1Document 1 of RR1, the handwritten notes of Dr James in review of the work of Dr Manock (see paragraph 32.1 of the Richards affidavit);
1.2.2Document 17 of RR1, evidence of Dr Manock to the Medical Board in Keogh v Manock (see paragraph 19 of the Richards affidavit);
1.2.3Document 18 of RR1, evidence of Dr James to the Medical Board in Keogh v Manock (see paragraph 20 of the Richards affidavit);
1.2.4Document 29 of RR1, transcript in the Medical Board matter Keogh v James (see paragraph 28 of the Richards affidavit);
1.2.5Document 32 of RR1, the report of Dr Thomas re examination of the histology slides (see paragraph 31 of the Richards affidavit);
1.2.6Document 33 of RR1, the report of Dr Harding re “Dr James and Exhibit P53 in 1994”;
1.2.7Document 34 of RR1, the report of Dr Harding re “further examination and re-assessment of the histology slides”.
1.3a result of the wrongful admission of the evidence of Dr Manock and Dr James in relation to:
1.3.1the cause of death;
1.3.2the scenario as to how the deceased was unlawfully drowned;
1.3.3the reconstruction in the Court room by Dr Manock with the aid of the bath in question and using his own hands;
1.3.4the evidence that the medial bruise and thumb bruise and that the pattern of bruises was consistent with a ‘grip’.
F.Grounds upon which permission to appeal against conviction is sought
16. The following are the grounds upon which permission to appeal against conviction is sought.
1.There is fresh and compelling evidence, within the meaning of that term in s353A Criminal Law Consolidation Act 1935, as set out in the annexure RR1 to the Richards affidavit, namely:
1.1Handwritten notes of Dr James in review of the work of Dr Manock dated December 1994, discovered 17.9.08;
1.2File note of Michael Sykes re attendances at the Forensic Science Centre dated 8.8.96;
1.3Report from Dr James to Dr Kobus re “The Cheney Case” dated 6.11.00, discovered 17.9.08;
1.4Report by Dr James re “Review of histology slide (sic) re: Anna Jane CHENEY (dec’d 18/3/94) dated 9.11.00, discovered 17.9.08;
1.5Letter from Dr James to Mr Rofe QC re Four Corners presentation dated 30.10.01;
1.6Affidavit of Professor Anthony Joseph Ansford to the Medical Board of South Australia (Keogh v Manock) dated 28.1.04;
1.7Affidavit of Associate Professor Gale Spring to the Medical Board of South Australia (Keogh v Manock) dated 28.1.04;
1.8Affidavit of Professor Maciej Henneberg to the Medical Board of South Australia (Keogh v Manock) dated 28.1.04;
1.9Affidavit of Professor Stephen Cordner to the Medical Board of South Australia (Keogh v Manock) dated 29.1.04;
1.10Affidavit of Dr Richard Byron Collins in the Medical Board of South Australia (Keogh v Manock);
1.11Affidavit of Professor Malcolm McDougal Fisher to the Medical Board of South Australia (Keogh v Manock);
1.12Affidavit of Professor Thomas re Dr Manock’s autopsy findings in Keogh and other cases dated 2.2.04;
1.13Affidavit of Professor Thomas re Dr Manock’s autopsy findings in Keogh and other cases dated 12.2.04;
1.14Affidavit of Dr Manock in the Medical Board of South Australia (Keogh v Manock) dated 23.6.04;
1.15Affidavit of Dr James in the Medical Board of South Australia (Keogh v Manock) dated 23.6.04;
1.16Affidavit of Dr Manock in the Medical Board of South Australia (Keogh v Manock) dated 16.8.04;
1.17Evidence of Dr Manock to the Medical Board of South Australia T331-438 (Keogh v Manock) in November 2004;
1.18Evidence of Dr James to the Medical Board of South Australia T281-330 (Keogh v Manock) dated November 2004;
1.19Opinion of Professor Maddocks to the Medical Board of South Australia (Keogh v Manock) dated 8.11.04;
1.20Report of Professor Vernon-Roberts to Mr Kourakis QC (as he then was) re causes of death dated 22.11.04, discovered 14.2.13;
1.21Report of Dr Gillis to Mr Kourakis QC re causes of death dated 6.12.04, discovered 14.2.13;
1.22Dr James’ response to complaint brought against him by Mr Keogh to the Medical Board of South Australia (Keogh v James) dated 17.12.04;
1.23Further opinion of Professor Maddocks to the Medical Board of South Australia (Keogh v Manock) dated 21.12.04;
1.24Further response of Dr James to complaint brought against him by Mr Keogh to the Medical Board of South Australia (Keogh v James) dated 7.3.05;
1.25Opinion of Professor McDonald to the Medical Board of South Australia (Keogh v Manock) dated 10.3.05;
1.26Opinion of Dr Coleman to the Medical Board of South Australia (Keogh v Manock) dated 16.3.05;
1.27Report of Dr Fryer re bath water level dated 15.5.07;
1.28Report of Dr Ellis to Mr Kourakis QC re Keogh Petition dated 17.7.05, discovered 14.2.13;
1.29Transcript in the Medical Board of South Australia (Keogh v James) T75,99 dated 16.8.07;
1.30Affidavit of Professor Thomas re aortic staining dated 22.11.07;
1.31Affidavit of Robert Sheehan re photographs of the deceased dated 23.4.08;
1.32Report by Dr Thomas re examination of the histology slides dated 7.8.08;
1.33Report of Dr Harding re Dr James and Exhibit P53 in 1994 dated 28.9.08;
1.34Report by Dr Harding re further examination and re-assessment of the histology slides dated 30.9.08;
1.35Affidavit of Professor Henneberg re the autopsy of Dr Manock and tests on theories of drowning dated 18.12.08;
1.36Affidavit of Professor Henneberg re the autopsy of Dr Manock and tests on hand grips and bruising dated 18.12.08;
1.37Revised report of Dr Fryer re level of water in bath dated 12.3.09;
1.38Evidence of Dr Manock at the Medical Tribunal of South Australia in June 2009;
1.39Report of Professor Coyle to Mr Martin Hinton QC re the psychological factors relevant to evidence adduced by Drs Manock and James in the Keogh matter dated 3.5.10;
1.40ABC radio interview with Dr Manock on 18.6.10;
1.41ABC radio “Beyond Reasonable Doubt” on 18 and 20.7.10;
1.42The “U” Series Charts prepared in October 2010 by Mr Keogh’s legal team;
1.43Manner of death scenario charts re Dr Manock prepared in October 2010 by Mr Keogh’s legal team;
1.44Various articles on differential staining;
1.45Report of Dr Henneberg re hand size dated 20.11.12;
1.46Report of Professor Cordner re review of forensic materials/findings dated 17.4.13.
2.The said fresh and compelling evidence should, in the interest of justice, be considered on an appeal.
History of proceedings to date
I will come to the requirements that must be satisfied, in accordance with s353A, before a second appeal might be heard by the Full Court, later in these reasons. However, at all times prior to and after his conviction, the applicant has firmly maintained his innocence; much has happened during the 19 years following conviction. It is convenient to set out a brief history of proceedings to date.
Following conviction on 23 August 1995, the applicant’s first or conventional appeal to the Court of Criminal Appeal was dismissed on 22 December 1995.[7] This has been the only curial proceeding, to date, that has reviewed the proceedings at trial on their merits. On 13 May 1997 an application to reopen the appeal was dismissed as incompetent by the Court of Criminal Appeal.[8] On 3 October 1997 an application for special leave to appeal to the High Court of Australia from the first (substantive) appeal and from the dismissed application to reopen that appeal were both dismissed by the High Court.[9]
[7]    R v Keogh [1995] SASC 5397.
[8]    R v Keogh (No 2) [1997] SASC 6152.
[9]    Keogh v The Queen [1997] HCA Trans 313.
On 22 June 2007, the applicant made a second application to the Court of Criminal Appeal to reopen the original appeal against conviction but this was dismissed on the ground that the court lacked jurisdiction to entertain it; again, there was no consideration of the merits of the original trial proceedings.[10] On 16 November 2007 the High Court rejected an application for special leave to appeal from this decision of the Court of Criminal Appeal.[11] Both the Court of Criminal Appeal and the High Court in its brief reasons refusing special leave, endorsed, as authoritative and binding, the 1938 decision of the High Court in Grierson v R.[12] Common form provisions available throughout the Commonwealth, equivalent to s352 of the Criminal Law Consolidation Act, confer jurisdiction on a state Court of Criminal Appeal to hear appeals against a criminal conviction. Grierson decided, in effect, that a state Court of Criminal Appeal has no jurisdiction to reopen such an appeal which has been heard upon the merits and finally determined other than in quite limited circumstances such as, for example, for an application of the “slip rule”.
[10] R v Keogh [2007] SASC 226.
[11] Keogh v The Queen [2007] HCA Trans 693.
[12] (1938) 60 CLR 431.
In addition to pursuing formal rights of appeal, the applicant lodged and pursued, unsuccessfully, petitions for mercy pursuant to s369 of the Criminal Law Consolidation Act (addressed to the Governor of the day) in 1996, 2002 and 2003. None of these petitions reached the stage of the Attorney-General exercising his power of referring the whole case to the Full Court or seeking the assistance of the judges of the Supreme Court on any point arising in the case, which powers are provided for in s369(1). In addition, in 2009 the applicant lodged a fourth petition for mercy. It is my understanding that this petition has not yet been determined and that the applicant will pursue that avenue in tandem with the present application for leave to appeal under s353A.
In other proceedings, the applicant has brought complaints to the Medical Board concerning the two forensic pathologists who were called to give evidence by the Crown during the trial, Dr Colin Manock and Dr Ross James. These proceedings were pursued to finality on their merits, subject to various appeals. During these proceedings evidence was given by Dr Manock and Dr James and by various other forensic pathologists and various findings were made by the Medical Board.
In support of the present application for permission to have a second appeal on the merits heard pursuant to s353A, the applicant maintains that he now has available to him a body of new evidence[13] that, when considered with the evidence at trial, establishes a significant doubt about the correctness of the conviction and which should lead a Court of Criminal Appeal to conclude that a substantial miscarriage of justice occurred.
[13] See the extracts from the amended notice of appeal set out earlier.
The Crown case at trial

The Crown case at trial was wholly circumstantial. The Crown adduced evidence concerning a number of circumstances and submitted that these circumstances, if proved and taken as a whole, served to exclude all innocent explanation for the death of Ms Cheney and proved beyond reasonable doubt that the applicant was responsible for her murder. The matters relied on by the Crown included the following:
(i)evidence concerning the post-mortem examination and forensic investigations into the death conducted by Dr Manock, together with various other expert medical opinions concerning the potential manner of death and its potential causes;
(ii)evidence concerning the true nature of the applicant’s relationship with the deceased;
(iii)evidence from which the Crown asked the jury to infer that notwithstanding an engagement and plans for a wedding, imminent as at the time of death, the applicant had no intention of marrying the deceased;
(iv)evidence concerning the applicant’s alleged involvement with two other women at a time when he was maintaining an apparently committed relationship with the deceased;
(v)evidence of the forging by the accused of the deceased’s signature on various applications for potentially valuable life insurance policies of which he was the beneficiary;
(vi)evidence to the effect that the deceased had no knowledge of a number of these policies; and
(vii)evidence of various alleged lies or misleading statements provided to the police during the initial investigatory phase.
On this application for permission to appeal the defence has challenged the cogency of the Crown case only with respect to (i) above. In the event that permission to appeal were to be granted, the Court hearing the appeal would consider the applicant’s challenge to this aspect of the Crown case but in the context of the whole of the Crown’s circumstantial evidence case at trial, when deciding whether or not there has been a substantial miscarriage of justice.
In this respect, the applicant submits that forensic decisions made by the defence at trial, the Judge’s summing up and the jury’s (inscrutable) consideration were all based on a forensic evidentiary landscape that can now be shown to have been inaccurate and materially misleading. This materially misleading forensic evidence concerning the cause of death was highly significant to the Crown case and, it must be assumed, to the jury’s verdict. According to the applicant, it had the capacity to encourage the jury to place undue weight on the Crown’s other circumstantial evidence bearing on the accused’s character and behaviour and on his relationship with the deceased which, on its own, could not have been regarded as indicative of guilt.
Material before the Court on the application for permission
In addition to a large quantity of written material relied on by the parties I also heard oral evidence given by Professor Anthony Thomas from the Department of Anatomical Pathology, Flinders Medical Centre and Professor Peter Ellis, consultant forensic pathologist and regional forensic pathologist at the Queensland Health Forensic and Scientific Services, Nambour, Queensland.
The written materials before the Court on the permission application include the following.
Affidavit evidence filed by the applicant
(i)Affidavit of the applicant’s solicitor, Ross Kirk Richards, sworn 21 June 2013 together with exhibits RR1 and RR2. Exhibit RR1 comprises more than 900 pages and is the material identified in the extract from the amended notice of appeal set out earlier.
(ii)Second affidavit of Ross Kirk Richards, sworn 18 November 2013 together with exhibits 2RR1-2RR4.
(iii)Third affidavit of Ross Kirk Richards, affirmed 29 January 2014 together with exhibits 3RR1-3RR5.
(iv)Fourth affidavit of Ross Kirk Richards, affirmed 14 February 2014 together with exhibits 4RR1-4RR8 comprising some 165 pages.
(v)Fifth affidavit of Ross Kirk Richards, affirmed 14 February 2014 together with exhibits 5RR1-5RR3.
(vi)Affidavit of Charles Samuel Lempriere Abbott (junior counsel representing the applicant) sworn 29 January 2014 together with exhibit SCLA1.
(vii)Affidavit of Stephen Charles Ey (solicitor representing the applicant at both the first and second trials) sworn 13 February 2014.
(viii)Affidavit of the applicant, affirmed 13 February 2014.
Affidavit evidence filed by the respondent
(ix)Affidavit of Jemma May Holt (solicitor employed within the office of the Director of Public Prosecutions) sworn 15 January 2014 together with exhibits JMH1-JMH7 and comprising some 473 pages.
(x)Addendum affidavit of Jemma May Holt, sworn 20 January 2014 together with exhibit JMH8.
(xi)Addendum affidavit of Jemma May Holt, sworn 4 February 2014 together with exhibits JMH9-JMH12.
Outlines of argument filed by the applicant
(xii)Applicant’s written argument filed 6 August 2013.
(xiii)Applicant’s brief response to respondent’s argument regarding s353A, filed 19 December 2013.
(xiv)Applicant’s outline of argument concerning the calling of witnesses at the leave stage, filed 23 January 2014.
(xv)Applicant’s further submissions on recently supplied evidence, filed 16 February 2014.
(xvi)Applicant’s further submissions, filed 21 February 2014 (provided by counsel for the applicant in court 21 February 2014).
(xvii)Applicant’s summary: evidence relied on by Dr Manock to found the murder calculus, provided in court 21 February 2014.
(xviii)Summary of Manock Concessions provided in court 21 February 2014 (to replace a document with this heading provided 19 February 2014).
(xix)Applicant’s reply to DPP’s submissions on admissibility of Vernon-Roberts and Pounder and s353A, filed 24 February 2014 and provided in court 24 February 2014.
(xx)Applicant’s submissions in reply, filed on 24 February 2014 and provided in court 24 February 2014.
(xxi)Applicant’s response to DPP’s outline of evidence at trial apart from forensic evidence filed (after conclusion of oral argument) 3 March 2014.
Outlines of argument filed by the respondent
(xxii)Respondent’s outline of argument regarding s353A, filed 18 December 2013.
(xxiii)Respondent’s outline of argument: calling of witnesses and topics of cross-examination, filed 20 January 2014.
(xxiv)Respondent’s outline of argument, filed 20 January 2014.
(xxv)Respondent’s outline of argument: evidence at trial apart from forensic evidence, filed 24 January 2014.
(xxvi)Response to applicant’s outline of argument: calling of witnesses and topics for cross-examination, filed 29 January 2014.
(xxvii)Respondent’s outline on statutory admissibility of Professor Vernon-Roberts report filed 11 February 2014 and provided in court.
(xxviii)Respondent’s submissions regarding Nicholson J’s approach to the construction of section 353A filed 20 February 2014 and provided in court 20 February 2014.
But for the expert reports referred to in the next paragraph, there was no objection by the Crown to the affidavits filed by the applicant and no objection by the applicant to the affidavits filed by the respondent being received and considered on the application for permission.
The applicant’s material includes a report prepared in 2004 by Professor Barrie Vernon-Roberts (from the Institute of Medical and Veterinary Sciences in Adelaide, at least, as at the time of the preparation of his report) and one prepared in 2014 by Professor Derrick Pounder (Professor of Forensic Medicine at University of Dundee, Scotland). The respondent has objected to the admissibility of these reports. I heard argument on the question of admissibility but, in effect, received the reports de bene esse.
Professor Vernon-Roberts’ report was prepared and provided by him to the then Solicitor-General in 2004. However, it was made available to the applicant’s advisers only sometime in 2013. Professor Pounder’s report became available to the respondent and to the Court very late on the Friday (14 February 2014) immediately prior to the Monday commencement of the hearing for permission.
The respondent objects to the admissibility of Professor Vernon-Roberts’ report or parts of the report for the purpose of this application on two main bases. The first is that there are various aspects of Professor Vernon-Roberts’ opinions on which it would wish to cross-examine Professor Vernon-Roberts. However, it is common ground that Professor Vernon-Roberts, as a consequence of chronic ill health, is to be regarded as now incapable of giving evidence, particularly concerning matters of such technical complexity as form the subject of his written report. This position will not change in the future and, as such, Professor Vernon-Roberts will not be available to give oral evidence at any appeal or at any new trial should there be one. Lengthy written submissions were received from the parties on the question whether, in these circumstances, the report of Professor Vernon-Roberts was, in any event, admissible (and, if so, whether or not it should be admitted) for the purpose of this application, pursuant to any or all of s34KA(1) and (2)(b), s45A and s45B of the Evidence Act 1929. The same question will arise at the hearing of any appeal and at any new trial, should such take place.
The respondent also objects to certain aspects of Professor Vernon-Roberts’ opinions, as expressed, on the grounds (particularly, in the absence of cross-examination) that a relevant factual basis in the evidence was not adequately identified and that Professor Vernon-Roberts, in stating certain of his opinions, had stepped outside his field of expertise and had usurped the role of the jury in purporting to determine ultimate questions.
R v Parenzee[14] concerned a (first) application for permission to appeal pursuant to s352 of the Criminal Law Consolidation Act based on alleged fresh evidence. The matter came before a single judge of this Court who, at the permission application stage, heard and reviewed a substantial amount of oral evidence adduced from the applicant’s new “expert” witnesses. The judge found that the “expert” evidence before him and relied upon by the applicant did not satisfy the requirements for expert evidence and was inadmissible. This finding was made independently of the issue of whether or not the evidence might be characterised as fresh evidence at common law. The judge had no doubt as to the inadmissibility of the evidence relied upon by the applicant and ruled accordingly, dismissing the application for permission. The Court of Criminal Appeal, upon a renewal of the application for permission, agreed.[15] Unlike in Parenzee, I have not formed a concluded view on the admissibility questions and, in the circumstances, it is unnecessary that I do so. I am satisfied that the admissibility of Professor Vernon-Roberts’ report, at least for the purposes of this application for permission and any subsequent appeal, is reasonably arguable.
[14] [2007] SASC 143 (Sulan J).
[15] (2007) 101 SASR 456 (Doyle CJ, Anderson and Kelly JJ).
Nevertheless, the arguments put by the respondent for its inadmissibility do have a bearing on the weight it should be given at the permission stage. In this respect, and in any event, a number of the matters raised by Professor Vernon-Roberts would appear to have been dealt with favourably to the applicant in other expert reports, the admissibility of which is not objected to. Furthermore, one potentially important issue raised by Professor Vernon-Roberts in 2004 for the first time, but only coming to the knowledge of the applicant and his advisors in 2013 (the haemosiderin issue – dealt with below) would appear to have been overtaken by the very recent (February 2014) work of Professor Thomas (also dealt with below). With these limitations and considerations in mind, I have had regard to Professor Vernon-Roberts’ report.
Professor Pounder is a forensic pathologist who lives and works in Scotland. His report (provided at the request of the applicant) only became available to the applicant and then to the respondent very shortly prior to the hearing.[16] Professor Pounder has reviewed Professor Vernon-Roberts’ 2004 report and has expressed a number of opinions based on that review and some other (limited) documentation concerning the matter generally. In a nut shell, Professor Pounder has adopted (by way of assumption) the factual basis relied on by Professor Vernon-Roberts in his report and has expressed agreement with the various opinions and conclusions reached by Professor Vernon-Roberts, as being appropriate upon an application of conventional science. Critical to any assessment of Professor Pounder’s report are paragraphs 4 and 8.[17]
4.This opinion is based upon a report of Professor Vernon-Roberts dated 22 November 2004. I have assumed that the facts stated therein are true. I have seen… [various identified documents]. I have not reviewed all of the written and photographic materials which were provided to Professor Vernon-Roberts and neither have I reviewed the histology slides of the case. In brief, I have not repeated the review exercise which Professor Vernon-Roberts conducted.
.. . .
8.Conditional upon the acceptance of the facts as stated in his report being true, I agree with the science which he has applied to the facts which in my view represents conventional wisdom which I would expect to be accepted by the overwhelming majority of competent practitioners in this field. The conclusions which he draws from the application of the science to the facts are sound and logical, and the probabilities which he attaches to his opinions are reasonable. There is nothing of substance in his report with which I would disagree.
[16] The applicant requested the report following receipt of the respondent’s objections to Professor Vernon-Roberts’ report.
[17] Fourth affidavit of Ross Kirk Richards, affirmed 14 February 2014, exhibit 4RR8 at p126 and p128.
In these circumstances, the respondent indicated that it wished to cross-examine Professor Pounder for the same reasons it wished to cross-examine Professor Vernon-Roberts and on the same topics. However, the respondent recognised the expense and difficulties that would be involved in arranging for this on such short notice. Inevitably, the permission argument would need to be adjourned part heard and for an indefinite period. Neither party wanted this.
Again, it is unnecessary that I form a concluded view with respect to the admissibility of Professor Pounder’s report, particularly given that I have found that I should have regard to Professor Vernon-Roberts’ report, albeit on the basis earlier outlined. I have not needed to take account of Professor Pounder’s opinions in arriving at my conclusions on the permission application.
As can be seen, a very large amount of written material was relied on by the parties; the affidavit material comprised in excess of 1800 pages, the transcript of oral evidence and argument exceeds 600 pages and the written submissions were in the order of 300 pages. An appreciable amount of the evidence and written submissions relied upon was provided piecemeal shortly prior to and during the five and a half days of oral argument. There was a significant amount of repetition and further amplification (restatement) of submissions already provided in written form and explored at length orally, particularly by the applicant. Whilst it is, ordinarily, for the parties to determine how to present their cases, a considerable number of arguments were presented with a level of repetition of detail and analysis, not warranted on an application of this nature.
Having said these things, the process has been beneficial. It can be expected that the parties and the Court are now on notice of the evidentiary materials (including the oral evidence taken from Professor Thomas and Professor Ellis during the hearing) each proposes to rely on and the factual and legal arguments that will be put by each party. There will remain to be resolved by a Full Bench of the Court a number of, not straightforward, legal issues including, but not limited to, the proper construction of and scope of s353A, the meanings, for this purpose, to be given to “fresh”, “compelling”, “interests of justice” and “substantial miscarriage of justice”, the application of those concepts (particularly the first two) to the multifarious pieces of evidence relied on by the applicant as fresh and compelling and the admissibility of a limited amount of materials including, in particular, Professor Vernon-Roberts’ report.
I have not formed and do not propose to express a concluded view on these matters; even if I were to, it would not assist the parties as they, inevitably, will need to be argued again before the Full Court. What follows goes without saying, but I will say it. The parties should now be in a position to, and will want to, eliminate repetitive or otherwise unnecessary argumentative material and restructure and streamline their written arguments for the appeal.
The construction of s353A
The parties have provided comprehensive and helpful submissions as to their respective (and different) constructions of s353A of the Criminal Law Consolidation Act. These positions changed over the course of the hearing. Without meaning any disrespect to the parties, I do not propose to directly address those submissions in these reasons. At present, I am inclined towards the following approach to the construction of s353A. It is not yet a concluded view.
In the absence of express statutory power there is no jurisdiction in the Full Court to hear a second or subsequent appeal from a criminal conviction on information.[18] In the absence of statute, in this case s352 of the Criminal Law Consolidation Act, there is no jurisdiction at common law to hear a first appeal. Section 352 confers jurisdiction on the Supreme Court sitting as the Full Court (Court of Criminal Appeal) to hear appeals against conviction on information in criminal cases. According to s352(1)(a)(i), there is an appeal as of right on a question of law. According to s352(1)(a)(ii), there is an appeal on any other ground, with permission. Section 352 also confers jurisdiction to hear applications for permission and s48 of the Supreme Court Act 1935 regulates how and by whom applications for permission are to be heard.
[18] R v Keogh [2007] SASC 226 (Doyle CJ, Bleby and Sulan JJ); Grierson v R (1938) 60 CLR 431.
Section 353 regulates how an appeal, the jurisdiction over which is conferred by s352, is to be determined in ordinary cases. There are a number of bases on which an appeal might be allowed, one of which is the ground that there was a miscarriage of justice.
Section 353A would appear to serve both the conferral of jurisdiction function, analogous to s352(1), and also the, how to determine any second appeal that is within jurisdiction and for which permission has been given function, analogous to s353.
(i)Section 353A(1) confers the jurisdiction – “The Full Court may (is now permitted to) hear a second or subsequent appeal”. It may hear a second or subsequent appeal “if the court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal”. As such, the requirements provided for in s353A(1) are pre-conditions to the conferral of jurisdiction.
(ii)However, even if the Full Court were to be satisfied that its jurisdiction has been invoked, that is, the s353A(1) requirements or pre-conditions to jurisdiction have been satisfied, it does not follow that the Full Court must hear a second appeal.
(iii)The Full Court may, or has jurisdiction to hear it, but it will be heard only if permission is granted, see s353A(2).
(iv)The jurisdiction to hear an application for permission (impliedly conferred by s353A(2)) is, again, regulated by s48 of the Supreme Court Act.
(v)If permission were to be granted, there is only one basis on which the subsequent second appeal (found to be within jurisdiction) might be allowed: if the Court thinks that there has been a substantial miscarriage of justice (s353A(3) and cf; s353(1)).

On this approach to the construction of s353A, the following would seem to apply.
(i)Under s352, the jurisdiction to hear appeals is at large, although the right to have an appeal heard in most cases will be constrained by the permission filter.
(ii)However, under s353A the jurisdiction to hear a second appeal is not at large; it arises only upon satisfaction of s353A(1). Thereafter the right to have any appeal (found to be within jurisdiction) heard, is constrained by the permission filter.
I recognise that this approach to the construction of s353A might be seen as at variance to that adopted in R v Drummond.[19] Furthermore, in most cases there may be no practical ramifications of significance. Nevertheless, I incline to the view that the matters in s353A(1) that must be established as pre-conditions to jurisdiction are properly to be left to the Full Court. There is either jurisdiction to hear an appeal or there is not. A finding on a permission application that the pre-conditions in s353A(1) are not “reasonably arguable” (the permission test) and therefore a finding that it is not reasonably arguable that the Court has jurisdiction to hear the appeal, would not advance the matter. Any question of lack of jurisdiction must be resolved, not hinted at.
[19] [2013] SASCFC 135.
Furthermore, should a permission judge refuse permission on the basis of non-satisfaction of s353A(1) the question will arise as to whether this is strictly a refusal of permission or a finding that the appeal is incompetent. In the latter case, the automatic right to have the permission application reconsidered and determined by the Full Court pursuant to s48(4) of the Supreme Court Act would not apply. Rather, the applicant would need to appeal against the finding of incompetency.
The test for a finding of incompetency is different from the test to be applied if refusing permission to appeal. In addition, the approach adopted by the Full Court when hearing an appeal from an order striking out an appeal as incompetent will differ from the approach applied when a Full Court revisits a refusal of permission under s48(4). At the permission stage the Full Court will still be constrained by the “reasonably arguable” criterion.
The issues raised by s353A(1) in the context of the present application were not argued on the basis of jurisdiction/competency of the appeal. They were argued on the permission basis – are these matters reasonably arguable? To the extent that there is substance to the concerns I have just raised, the practical resolution, in the context of this matter, is to refer to the Full Court the s353A(1) considerations – whether they bear on the permission question or the jurisdiction question. And this is what I propose to do.
Some important aspects of the applicant’s case for permission
At the trial, the Crown proposed a mechanism by which the applicant might have drowned the deceased. That mechanism involved the applicant placing his right arm under the deceased’s legs, whilst she lay in the bath, gripping the back of her left calf (being the leg further away from him) with his right hand and forcing the legs up, over and down towards the head of the deceased so that she was doubled up with her head forced under the water. It was only a suggested mechanism but one supported by the Crown’s main forensic pathology expert witness, Dr Manock, who performed the autopsy. It was supported by Dr Manock in the sense that he accepted that it was consistent with his port-mortem findings and other evidence as to the circumstances surrounding the death of which he was aware.
Given that the Crown case in support of a finding of homicidal drowning was wholly circumstantial, it did not set out to prove that this was the precise mechanism which caused the deceased to drown. However, the defence asserts that the presentation of this as a possible mechanism and the enlistment of Dr Manock and Dr James in support of it was a central feature of the Crown case and, inevitably, would have carried substantial weight before the jury.
The applicant submits that of great significance to an assessment of the likelihood of this mechanism for causing death was, what has later come to be referred to as, the grip theory. The applicant maintains, inter alia, that the grip theory was central to the case as presented by the Crown and ultimately left to the jury. However, the applicant also maintains that this theory has now been significantly undermined, if not completely discredited, by later obtained evidence which the applicant submits is “fresh and compelling” within the meaning of those terms as defined and employed within s353A.
The grip theory was supported, in part, by evidence left to the jury concerning a faint mark on the medial (inner) side of the deceased’s left lower leg, said by Dr Manock to have been observed post-mortem. Dr Manock gave the opinion, based on his post-mortem observations and his, what is now alleged to have been inadequate, histological testing,[20] that this mark was a bruise and a bruise acquired by the deceased within four hours or so prior to death.
[20] Histology is the study of the microscopic anatomy of cells and tissues of plants and animals.
The Crown submitted that it was open, on all of the adduced forensic pathology evidence, for the jury to find that this mark together with three other marks on the lateral side of, and at approximately the same position on, the left lower leg (also said by Dr Manock to be bruises) were caused by the thumb and three fingers respectively of a hand. However, given the nature of its circumstantial evidence case, the Crown, and the judge in his summing up, made it plain to the jury that a finding of guilty was not dependent on them accepting the grip theory.
The evidence concerning and Crown submissions directed at the four “bruises” formed part of the basis for the grip theory put to the jury. The weight to be given to this submission by the jury was dependant to a significant degree on the status that the jury might give to the faint medial mark. Might it be a bruise caused by the thumb or something else?
The applicant argues that evidence that has emerged after the trial strongly suggests, indeed establishes, that the mark on the medial side of the left leg was not indicative of a bruise caused at or about the time of death and that there is now and was at trial no reliable evidence of the existence of a bruise in that location. The applicant relies on a substantial body of evidence, essentially later acquired opinions of expert forensic pathologists, said to be new to the applicant and supportive of this submission. In essence, the material relied upon by the applicant in this respect includes (but is by no means limited to) evidence that he submits is to the following effect.
(i)Dr Manock gave wrong evidence at trial. He was wrong to have asserted (at least impliedly) at the trial that the histological examination of the medial mark supported his initial conclusion arrived at upon macroscopic examination[21] that the mark was a bruise. Dr Manock was wrong because, according to the applicant’s experts both at trial and those retained after trial, the histology offered no such support.
(ii)Dr Manock, with whom Dr James agreed, was wrong when he gave evidence to the effect that the fact that no white blood cell invasion could be seen on histological examination indicated that the bruise was likely to have been caused within the four hours prior to (including by implication at a time immediately prior to) death. Expert evidence relied on by the applicant is to the effect that this is an unwarranted conclusion in circumstances where the histology gives no support for a bruise in the first place. There would be no need for white blood cells to perform a repair job let alone be present if, in fact, there was no such trauma and no such bruise. The absence of white blood cells is not positive evidence of a bruise in the absence of histological support for a bruise.
(iii)Dr Manock in evidence given under oath in subsequent proceedings has conceded that various aspects of his trial evidence including the matters referred to in (i) and (ii) were in error. In other words, the applicant submits that Dr Manock has now conceded that there was no histological support for the medial mark to have been characterised as a recent bruise. In addition, Dr Manock has conceded that the absence of white blood cells, if there had been histological support for a recent bruise, would suggest no more than that such a bruise may have been caused within 24 (not four) hours of death.
(iv)Professor Thomas has very recently (February 2014) performed a test for the presence of haemosiderin on a tissue slide previously taken from the block of tissue sample, removed during the autopsy by Dr Manock, from the area of the medial mark on the left leg, for Dr Manock’s own histological examination. This tissue slide had come into Professor Thomas’ possession many years ago but it was only after the receipt in 2013, by the applicant, of Professor Vernon-Roberts’ 2004 report that Professor Vernon-Roberts’ suggestion of undertaking this particular test was followed up (as it happens) by Professor Thomas. The testing by Professor Thomas discloses the presence, as at the time of the autopsy, of haemosiderin at the site of the medial mark.
(v)The burden of the forensic pathology evidence relied on by the applicant is that haemosiderin is a by-product created as part of the process of the repair of bruised or damaged tissue. Importantly, it is said, haemosiderin will not appear or arise at the site of a bruise or tissue damage until at least two to three days after the occurrence of the trauma giving rise to the bruise or tissue damage to which it relates. Indeed, haemosiderin can survive and be present at a test site for much longer periods measured in months or years. In other words, there is no reason to assume that this haemosiderin (present at time of death) could not have related to a bruise or other trauma occurring months before.
(vi)The possible presence of haemosiderin and the prudence of testing for it was overlooked by every pathologist until Professor Vernon-Roberts raised the issue in 2004.
(vii)The existence of haemosiderin at the site of the mark on the medial side suggests that whatever caused that mark could not have occurred at or around the time of death.
(viii) The histological examinations (such as were performed) and the absence of histological examinations by Dr Manock concerning a number of the three marks on the lateral side of the left leg and of the five marks along the shin bone of the right leg, all observed post-mortem, were inadequate to permit of conclusions that these also were likely to be bruises sustained peri-mortem.
(ix)There are indications in the deceased’s general practitioner medical notes that the deceased had suffered from chronic herpes simplex outbreaks on her legs. Medical evidence is to the effect that this can account for the existence of skin lesions and the existence of haemosiderin. In short, the applicant submits that a number of the “bruise” marks observed on the legs including, in particular, that on the medial side of the left leg, can be explained in this way but that, on any analysis, the presence of haemosiderin strongly points to the mark on the medial side, at least, as not having been a bruise suffered peri-mortem.
[21] In this context, macroscopic examination refers to observations or examination made with the naked eye, that is, without mechanical assistance such as a microscope.
A primary submission by the applicant is that there is now no credible evidence in support of the grip theory. In this respect, the respondent has raised a number of opposing arguments. For example, the respondent maintains that the applicant’s argument relies on a conclusion that the identified haemosiderin is necessarily causally connected with the mark observed on the medial side of the left leg. It is still open to find that whatever might have caused the haemosiderin to be in this location, that cause is independent of and unrelated to the bruise Dr Manock, an experienced forensic pathologist, said he observed macroscopically.
The respondent has put a number of arguments to the effect that there was at trial and remains sufficient evidence for a jury to be satisfied that the mark on the medial side of the left leg and the three marks on the lateral side of the left leg were bruises. The respondent has also put a number of arguments challenging the “new” evidence relied on by the applicant in this respect, on the basis that it is either or both not “fresh” and not “compelling”.
Without meaning to oversimplify the applicant’s case, the attack on the verdict can be seen as having two complementary limbs. First, the attack on the mechanism propounded by the Crown as a possible cause of death with respect to which the grip theory is said to have played a central role.[22] Second, a revisiting of other potential (non-culpable) causes of death, bearing in mind, of course, that any such non-culpable causes need only be raised by the defence to the level of a reasonable possibility (albeit upon a consideration of the whole of the Crown’s circumstantial evidence case). The applicant submits, in essence, that to the extent that the grip theory and the Crown’s suggested mechanism for any assisted drowning are undermined, potential non-culpable causes must be elevated in the thinking of a jury. I turn to briefly summarise this second limb of attack.
[22] The attack on this posited mechanism is not confined in the way already outlined. The applicant has other evidence it will seek to rely on, for example, work done by Professor Marciej Henneberg, an anatomist, which it is said demonstrates that the posited mechanism of assisted drowning was not physically possible.
The respondent has submitted that the trial was conducted on the basis that death by drowning was not disputed by the defence and was not an “issue in dispute at the trial”.[23] According to the respondent and notwithstanding the breadth of matters canvassed in the evidence, the jury was left to ponder, in effect, whether the Crown had proved beyond reasonable doubt that acknowledged drowning had come about by homicidal assistance or whether it was reasonably possible that the deceased suffered accidental drowning, that is, a slip or a faint (postural hypotension) and fall, following which she hit her head on the edge of the bath, was rendered unconscious and drowned.
[23] The definition of “compelling” in s353A(6)(b) includes a requirement ((b)(iii)) that the evidence is highly probative in the context of the issues in dispute at the trial.
The applicant disputes that this is a proper or fair characterisation of the trial proceedings. Apart from postural hypotension and accidental slip, evidence was also led concerning the possibilities of epilepsy and myocarditis as innocent causes for collapse and death. The applicant submits that these possibilities also were necessarily left to the jury.
On this application, the applicant relies, inter alia, on evidence of Professor Vernon-Roberts, Professor Ellis and Professor Thomas to the effect that advances in medical science have revealed a number of conditions both cardiac (for example, sudden arrhythmic death syndrome (SADS) and long QT syndrome) and neurological, which can lead to sudden and unexpected death in young adults. One view of the expert evidence now available to the applicant, is that sudden unexpected deaths in young adults are now better understood or recognised and thought to be more prevalent than was understood to be the case at the time of trial.
According to the evidence available to the applicant, some of these conditions do have an observable pathology but this pathology will not necessarily be observed where there is a failure to perform adequate histology of heart and brain tissue. In this respect, the applicant also relies on various criticisms of the post-mortem and histological investigations, including of the heart and brain, undertaken by Dr Manock. These criticisms are said to have first come to the attention of the applicant after the trial or, at least, to have come to be viewed in their proper context only once the developments in medical science concerning the prevalence of sudden unexplained death in young adults came to be better understood. The applicant also relies on concessions said to have been made by Dr Manock after the trial as to the inadequacy of his post-mortem and histological examination. In particular, the applicant relies on concessions said to have been made by Dr Manock that his sampling and investigation of the brain and heart tissue were inadequate.
According to the applicant’s “new” expert evidence, some of the conditions that can lead to sudden unexpected death or, at least, some circumstances where such conditions have been operative can result in no visible signs and the condition will remain undetectable even at autopsy.
According to the applicant, neither the existence nor prevalence of these conditions was raised with the jury and they represent an aspect of medical science that has advanced in recent years.
In addition, the applicant relies on evidence said to be to the effect that Dr Manock was wrong, in his evidence at trial, to exclude the possibility of loss of consciousness before death as a result of the deceased hitting her head (whether after a faint or after a cardiac event) because of the lack of a sign on the brain. On one view of Dr Manock’s evidence at trial, he expressed the opinion that it was essential to any finding that there had been a loss of consciousness caused by a hit on the head that a sign on the brain at autopsy would be observed. This was so notwithstanding the presence of bruising on the head and neck. On one view of Dr Manock’s evidence at the trial, this was a powerful reason why the jury might exclude a slip or a faint leading to a fall, loss of consciousness upon hitting of the head and subsequent drowning.
Dr Manock was alone in holding this view at trial. The three other forensic pathologists who gave evidence, including Dr James called by the Crown, did not agree that a loss of consciousness arising in such circumstances would necessarily leave a sign on the brain observable on autopsy.
According to the applicant, Dr Manock has now recanted on that aspect of his evidence. As such, the applicant submits that it is not to the point that the jury were properly directed by the trial judge to the effect that three pathologists did not agree with Dr Manock on this issue. It cannot be assumed that Dr Manock’s evidence on this issue was rejected (particularly given that he was presented by the Crown as pre-eminent, at least with respect to his hands on experience in performing autopsies). The applicant submits that had Dr Manock’s evidence been correctly given in this respect, the defence case for loss of consciousness caused by a fall prior to drowning, that is, accidental death, at least as a reasonable possibility, would have been strengthened.
The applicant also relies on a report from a Dr Gillis, a specialist immunologist to the effect that the post-mortem photographs showed signs that the deceased may have experienced anaphylaxis. Dr Gillis observed swelling around the mouth which in his opinion could be a sign of analphylaxis but it might also be associated with generalised swelling secondary to cardiac failure and a number of other causes. Whilst Dr Gillis said there was no evidence of which he was aware to support a finding that anaphylaxis was a cause of death, equally, he was of the view that there was no evidence to support a finding that anaphylaxis was not the cause of death. The applicant maintains that the report of Dr Gillis is inconsistent with a drowning diagnosis. The report was obtained by the then Solicitor-General in 2004 but was not released to the applicant until 2013. There is reference in general practitioner notes for the deceased (available at the trial) to the deceased having been prescribed the drug Hismanal for a period of some (uncertain) time before death. A known unusual complication from taking Hismanal is anaphylaxis. Furthermore, the drug was apparently taken off the market in the late 1990s because of concerns that it might, in some persons, contribute to an acute cardiac event. The applicant maintains that whether or not this evidence is to be characterised as “fresh” the potential for Hismanal to have played a role in causing the death needs to be considered in a new light now that the grip theory has been discredited and undermined.

The respondent submits that the “new” evidence concerning possible causes of death, relied upon by the applicant, is neither fresh nor compelling as those terms, as used in s353A, should properly be understood. The respondent relies, inter alia, on the evidence given by the defence experts at trial and on reports provided to the defence by a forensic pathologist, Dr Collins, prior to trial which is said to refer to or identify in some detail many of the matters now explored in this “new” evidence, including a significant number of criticisms of Dr Manock’s post-mortem work. According to Dr Collins, the poor quality of the work performed meant that various alternative hypotheses as to the cause of death which he identified could not safely be excluded. Dr Collins did not give evidence for the defence at the trial and, as a consequence, a number of the issues raised by him were not explored or not explored to the extent they may have been through him.
The respondent submits that the provision of this report by Dr Collins to the defence team prior to trial allows for the conclusion that many of the matters now relied upon by the applicant that were referred to in that report cannot be characterised as “fresh”, that is, as evidence that “could not, even with the exercise of reasonable diligence, have been adduced at trial”.
There is another issue of some conceptual difficulty that divides the parties. For reasons given earlier, I have not formed a view as to whether or not each piece of “new” evidence now relied on by the applicant should be characterised as “fresh” and “compelling” and such as should in the interests of justice be considered on appeal.[24] However, it is conceivable that a full bench considering this matter will conclude that some items of evidence so qualify and some do not.
[24] The requirements set out in s353A(1).
The respondent argues that a court hearing any appeal will confine its consideration to the evidence at trial and only such evidence that satisfies the requirements in s353A(1). The Court’s task will be to consider the “fresh” and “compelling” new evidence in the context of the trial evidence in order to decide if there has been a substantial miscarriage of justice. In this respect, the task of the court is different from and more restricted than would be involved in a full review of all available evidence, such as can be appropriate in the context of the petition procedure under s369. The respondent submits that the remarks of the plurality in the High Court in Mallard v R[25] do not apply to the circumstances of a second appeal pursuant to s353A as properly construed. In Mallard the plurality said this.
[25] (2005) 224 CLR 125 at [8]-[13].
Insight into the cautious way in which the Court of Criminal Appeal here (Parker, Wheeler and Roberts-Smith JJ) conceived its function under the Act and the Criminal Code can be gained from these passages in that Court's unanimous judgment:
It was accepted on both sides that on reference the court had a duty to consider the 'whole case'. The court is required to consider the case in its entirety, subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal.
However, there was at times a tendency for counsel for the petitioner to refer to this proposition as if it justified the hearing afresh of evidence at trial and evidence called on the appeal, without regard either to the verdict of the jury or to the previous decision of the Court of Criminal Appeal in this case. That was particularly noticeable in the petitioner's opening submissions, in which very detailed submissions were put as to discrepancies between the evidence of various witnesses as to the timing of certain events. Those matters were before the jury at the petitioner's trial, although of course they were not marshalled and emphasised in precisely the way in which the petitioner now seeks to marshal and emphasise them.
Their Honours then reviewed the authorities with respect to the identification and reception of evidence as fresh evidence. They drew a distinction between "new evidence", that is, evidence available but not adduced at trial, and "fresh evidence", which appellate courts ordinarily will receive, on the basis that it did not then exist, or, if it did, could not then have been discovered with reasonable diligence. Their whole approach thereafter proceeded on the basis of the passages that we have quoted, that is, as if there were serious inhibitions upon that Court's jurisdiction to consider, not just the evidence that was adduced at the trial, but also its relevance to the further evidence that the appellant sought to introduce and rely upon in the reference.
It seems to us that the approach was an erroneous one. Subject only to what we will say later about the words "as if it were an appeal" which appear in s 140(1)(a) of the Act, the explicit reference to "the whole case" conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.
This construction of Pt 19 of the Act is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen:
The words of s 21(a) of the Code, so far as they require 'the whole case ... [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorize the exclusion of issues which are frivolous or vexatious. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented.
It is also consistent with the construction adopted by Lord Diplock (Lords Scarman, Roskill, Brandon of Oakbrook and Templeman agreeing) in R v Chard of like language of s 17(1)(a) of the Criminal Appeal Act 1968 (UK):
In my view, which I understand is shared by all your Lordships, the words of paragraph (a) of subsection (1) in their natural and ordinary meaning are free from any trace of ambiguity; the person whose case which resulted in his conviction is the subject matter of the reference is to be treated for all purposes as if he were a person upon whom there is conferred by section 1 of the Criminal Appeal Act 1968 a general right of appeal to the Court of Appeal on any ground which he wishes to rely (whether it be of law or fact or mixed law and fact), without need to obtain the prior leave of that court.
...
Since it is the 'whole case' that is referred, this must include all questions of fact and law involved in it ... (emphasis added)
It follows that in proceeding as it did, the Court of Criminal Appeal erred in law. The question remains however, whether that error induced or caused a miscarriage of justice, the same question as would exercise the mind of the Executive were it to deal with a petition rather than refer it to the Court of Criminal Appeal for determination. The answer to that question may only be given after a consideration of the facts, not only as they emerged at the trial, but also as they emerged in the Court of Criminal Appeal, no matter what descriptive term the evidence adduced there might be given. It is elementary that some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown.
The applicant submits, in reliance on Mallard and as a matter of principle, that once the s353A(1) requirements for a second appeal are satisfied, that is, there is some evidence which is fresh and compelling and which in the interests of justice should be considered on appeal, a full review of all available evidence in the Mallard sense is permitted and will be necessary.
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).
The respondent submits that the use of the term substantial miscarriage of justice in s353A(3) suggests that Parliament has required something more than a miscarriage of justice simpliciter to be demonstrated before an appeal will be allowed pursuant to s353A. The expression substantial miscarriage of justice has been employed by the South Australian Parliament in other contexts. However, it is arguable that these other contexts raise considerations that render the discussions of this term in the authorities difficult to apply in the context of s353A.
For example, the proviso in s353(1) (and in the other common form appeal provisions interstate) is in the following terms.
… 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.
Again, the use of the phrase substantial miscarriage of justice in the context of the proviso has been the subject of extensive commentary and application in the authorities.[29]
[29] See, but again only by way of example, Driscoll v R (1977) 137 CLR 517 at 524; R v Johnson (1979) 22 SASR 161 at 185-6; Maric v R (1978) 20 ALR 513 at 520-1; Harriman v R (1989) 167 CLR 590; R v Hutchinson (1990) 53 SASR 587 and R v Nylander [2003] SASC 191 at [46] where the Court of Criminal Appeal (Bleby J with whom Prior and Sulan JJ agreed) adopted as an appropriate test that stated by Hayne J in Festa v R (2001) 208 CLR 593 at [226] that for a Court of Criminal Appeal to apply the proviso “the Court must conclude that the evidence properly before the jury, if the jury had been properly instructed, would have inevitably required the jury, acting reasonably, to return a verdict of guilty.”
There is substance to the submissions put by the respondent in this matter that the authorities dealing with the proviso (and bearing on the meaning of the expression substantial miscarriage of justice) have to be considered in the light of, at least, three matters.
(i)The onus of satisfying a court that the proviso should be applied is upon a respondent whereas under s353A of the Act the onus is upon the applicant seeking to pursue a second appeal.
(ii)The proviso requires the court to be satisfied of a negative, that is, that there has been no substantial miscarriage of justice. Under s353A the onus is upon the applicant to satisfy the court that it is (at least at the permission stage) reasonably arguable that there has been a substantial miscarriage of justice.
(iii)No single universally applicable criterion has been formulated in order to identify circumstances in which it might be said that there has been “no substantial miscarriage of justice”.[30]
[30] Weiss v R (2005) 224 CLR 300 at 317.
The respondent submits that an appropriate starting point for a consideration of the meaning of the more onerous test that would appear to confront an applicant under s353A (as compared with that under s353) is the test applied by an appeal court under s353 when deciding whether to set aside a conviction based upon fresh evidence. In Mickelberg v R[31] Mason CJ observed:
It is established that the proper question is whether the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five justices in Gallagher v The Queen.
The respondent submits that the test under s353A requires something more than that there is “a significant possibility” that the jury acting reasonably would have acquitted the appellant had the fresh evidence been before it at trial. The respondent referred the Court to R v Drummond[32] where Stanley J said this.
The Full Court will allow an appeal pursuant to s353A if it concludes a guilty verdict cannot be supported on the evidence that was adduced at trial in 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.
[31] (1989) 167 CLR 259 at 273.
[32] [2013] SASCFC 135 at [25].
I have focussed on (only a bare summary of) the respondent’s submissions on this topic because the respondent advocates a test for the substantial miscarriage of justice requirement that is more difficult for an applicant to discharge than that as pressed in the applicant’s submissions.
I agree that, at least for the purpose of this permission application, a starting point is a test along the lines set out in the extract above from Mickelberg. I also accept that the addition of the word “substantial” requires some qualitative adjustment to that test in the context of an application under s353A. Ultimately, it will be for a Court of Criminal Appeal hearing an appeal to decide whether, if satisfied that there has been a miscarriage of justice, the nature of the miscarriage, as found, is such as to properly be characterised as “substantial”. Ultimately, this will be a matter of fact and degree.
In considering the proposed new evidence and the parties’ respective positions, I have restricted myself to the “reasonably arguable” question. I have not attempted a final resolution of any of the competing contentions. I am satisfied that it is reasonably arguable that there has been a substantial miscarriage of justice.
However, given the problematic issue concerning the proper construction of s353A outlined earlier, I find and order as follows.
(i)I am satisfied that 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 that the applicant’s ground of appeal (paragraph 15) that there was a substantial miscarriage of justice is reasonably arguable.
(ii)I refer to the Full Court, to be heard at the same time as any appeal, 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.
(iii)I refer to the Full Court, to be heard at the same time as any appeal, the questions of whether or not the requirements of s353A(1) are satisfied in this case.
(iv)Notwithstanding the findings in (i) above but consequential on the orders in (ii) and (iii) above, I refer to the Full Court, to be heard at the same time as any appeal, the question of permission under s353A(2).