R v Keogh - [2013] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v KEOGH
[2013] SASCFC 74
Judgment of The Honourable Justice Nicholson
6 August 2013
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - GENERALLY
Application for access to a document exhibited to an affidavit filed at same time and in support of a notice of appeal and an application for permission to appeal against conviction - application of s 131(1)(aa) of Supreme Court Act 1935 - consideration of whether or not the document in question fell within the term "process" as used in s 131(1)(aa).
Held: the document to which access is sought does not fall within the term "process" in s 131(1)(aa).
Criminal Law Consolidation Act 1935 (SA) s 353A; Supreme Court Act 1935 (SA) s 131; Supreme Court Civil Rules 2006 (SA) r 61, referred to.
R v Foreman (1996) 186 LSJS 190; Jackson & Ors v Johnson & Ors & Scott v Johnson & Ors [2010] SASC 133; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; Buyquick.com Ltd v Foxgold Pty Ltd [2004] WASC 180; Corlette Pty Ltd v The Shell Company of Australia Ltd [1999] WASC 24, considered.

R v KEOGH
[2013] SASCFC 74
NICHOLSON J.

Henry Vincent Keogh was convicted of murder in 1995 and sentenced to life imprisonment with a non‑parole period of 25 years. Until recently, and apart from any right to petition for Her Majesty’s mercy pursuant to s 369 of the Criminal Law Consolidation Act 1935 (SA) (CLCA),[1] Mr Keogh had exhausted all avenues of appeal. However, earlier this year the CLCA was amended by the insertion of a new provision, s 353A, which provides that the Full Court may hear a second or subsequent appeal against conviction in defined circumstances. Mr Keogh has recently filed in this Court a Notice of Appeal which includes an Application for Permission to Appeal against his conviction (subsequently amended but in a manner not material to these reasons for decision) in reliance on such rights as are conferred by this new provision.
[1] Steps to implement this procedure have in fact been undertaken by those representing Mr Keogh and are in progress.
By s 353A(2) a convicted person may only appeal under this section with the permission of the Full Court. I am the Judge who has been assigned to manage Mr Keogh’s application for permission to appeal. The proceedings are still at a very early stage and any argument to be had on the question of permission has not yet been heard.
Strictly, the Notice of Appeal will have no work to do unless and until permission to appeal were to be granted. The composite document in its present form contains more detail than is usual in a Notice of Appeal against conviction for a criminal offence typically filed in this Court. It contains the single ground of appeal, in paragraph 15, that there was a substantial miscarriage of justice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read R v Keogh and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] SASCFC 74
Decision Date: 6 August 2013

CaseChat Overview and Summary

The applicant, R v Keogh, sought access to a document exhibited to an affidavit. This affidavit was filed in support of both a notice of appeal and an application for permission to appeal against conviction. The application was heard by Nicholson J of the Supreme Court of South Australia.

The central legal issue before the court was whether the document in question, exhibited to the affidavit, fell within the definition of "process" as contemplated by section 131(1)(aa) of the *Supreme Court Act 1935* (SA). This section governs the miscellaneous powers of the court and judges.

Nicholson J considered the meaning of "process" in the context of the Act and the nature of the document. His Honour determined that the document, being an exhibit to an affidavit filed in support of appellate proceedings, did not constitute "process" within the meaning of section 131(1)(aa). Consequently, the application for access to the document was dismissed.

Orders