R v Keogh

Case [2007] SASC 226

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v KEOGH

[2007] SASC 226

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)

22 June 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES

Application to "re-open" appeal - whether Court has power under section 352 Criminal Law Consolidation Act 1935 (SA) to "re-open" appeal - whether appeal has been determined on the merits - duty of Court to apply meaning of relevant provisions of Criminal Law Consolidation Act 1935 (SA) as authoritatively determined by High Court.

Held: application dismissed.

Criminal Law Consolidation Act 1935 (SA) s 352, s 353, s 359 and s 369; Criminal Appeal Act 1907 (UK); Supreme Court Act 1935 (SA) s 17; Criminal Appeal Act 1912 (NSW); Supreme Court Criminal Appeal Rules 1990 (SA), referred to.
Grierson v The King (1938) 60 CLR 431; R v Edwards (No 2) [1931] SASR 376, applied.
DJL v The Central Authority (2000) 201 CLR 226, distinguished.
R v Keogh (unreported, 22 December 1995, S5397.1), discussed.
Grey v The Queen (2001) 75 ALJR 1708; Weiss v The Queen (2005) 224 CLR 300; Eastman v The Queen (2000) 203 CLR 1; Jones v The Queen (1989) 166 CLR 409; Pantorno v The Queen (1989) 166 CLR 466; Postiglione v The Queen (1997) 189 CLR 295; R v Reardon (2004) 146 A Crim R 475; AN (No 2) v The Queen (2006) 163 A Crim R 133; R v Burrell [2007] NSWCCA 79; R v McNamara (No 2) [1997] 1 VR 257; R v GAM (No 2) (2004) 9 VR 640; R v Brain (1999) 74 SASR 92; The Queen v Shannon (1982) 32 SASR 5; R v Caruso (1988) 49 SASR 465; R v Preston (2004) 145 A Crim R 212, considered.

R v KEOGH
[2007] SASC 226

Court of Criminal Appeal: Doyle CJ, Bleby and Sulan JJ

  1. DOYLE CJ:          The issue before the Court is the power of the Full Court, exercising its powers to hear an appeal under s 352 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), to “re-open” an appeal against conviction for the purpose of the Full Court hearing further submissions supporting an appeal against the conviction in question.

  2. The application before the Court is described as an application to “re-open” the appeal because Mr Keogh previously appealed against his conviction.  That appeal was dismissed after a hearing before the Full Court differently constituted.  The application now before the Court invites the Court to consider further submissions attacking the conviction, based on the record of the trial (which was before the previous Full Court) and further material which was not before the previous Full Court.

    Background

  3. On 22 December 1995 the Full Court dismissed an appeal by Mr Keogh against his conviction for the murder of Ms Cheney…

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AGLC
R v Keogh [2007] SASC 226
Case
[2007] SASC 226
Decision Date

CaseChat Overview and Summary

In the matter of R v Keogh, the applicant, Mr Keogh, sought to have his previous appeal against his conviction for the murder of Ms Cheney re-opened. The appeal was initially dismissed by the Full Court on 22 December 1995, and Mr Keogh subsequently filed an application for the appeal to be re-opened on 4 April 1997. The application was dismissed by the Full Court on 13 May 1997, and the High Court refused special leave to appeal against this decision on 3 October 1997. In 2007, Mr Keogh filed another application for the appeal to be re-opened, and this application was the subject of the present case. The application was heard by the Court, which had to determine whether it had the power to re-open the appeal against conviction and whether the appeal had been determined on the merits.

The primary legal issue before the Court was whether it had the power to re-open the hearing of the appeal against conviction, and if so, whether it should do so. The Court had to consider the relevant provisions of the Criminal Law Consolidation Act 1935 (SA) and the meaning of those provisions as authoritatively determined by the High Court. The Court also had to consider the effect of the dismissal of the first appeal against conviction on its jurisdiction to re-open the hearing of the appeal. The Court heard arguments from both Mr Keogh and the Director of Public Prosecutions, but did not make any determination on the admissibility of the proposed evidence at this stage.

The Court held that the dismissal of the first appeal against conviction, and the drawing up or perfection of the order of the Court doing so, deprived it of jurisdiction to re-open the hearing of the appeal against conviction, or to entertain a second appeal against conviction. The Court held that the application made by Mr Keogh must be dismissed. The Chief Justice was of the view that the Court’s jurisdiction to grant the application was limited by the dismissal of the first appeal, and that the application was incompetent. Bleby J and Sulan J agreed with the reasons of the Chief Justice.

The Court dismissed the application made by Mr Keogh for an order that the appeal against conviction be re-opened. The Court held that it did not have the power to re-open the hearing of the appeal against conviction, and that the appeal had been determined on the merits. The Court’s decision was based on the meaning of the relevant provisions of the Criminal Law Consolidation Act 1935 (SA) as authoritatively determined by the High Court. The Court did not make any determination on the admissibility of the proposed evidence at this stage.

Orders

Orders of the court

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Background

Background to the litigation

The application before the Court is described as an application to “re-open” the appeal because Mr Keogh previously appealed against his conviction. That appeal was dismissed after a hearing before the Full Court differently constituted. The application now before the Court invites the Court to consider further submissions attacking the conviction, based on the record of the trial (which was before the previous Full Court) and further material which was not before the previous Full Court.Background On 22 December 1995 the Full Court dismissed an appeal by Mr Keogh against his conviction for the murder of Ms Cheney on 18 March 1994. On 4 April 1997 Mr Keogh filed an application for an order that the appeal against conviction be re-opened, to enable him:To present argument in support of a new ground of appeal namely, that the trial miscarried by reason of the unavailability at trial of evidence which would establish that no reliance could be placed upon the opinions and evidence of Dr Manock.Dr Manock is a pathologist who carried out an autopsy on Ms Cheney. He gave evidence at the trial about that autopsy, as to the cause of death (freshwater drowning) and as to the manner in which Mr Keogh might have drowned Ms Cheney. This latter aspect of the evidence relied in part on evidence of bruising on Ms Cheney’s legs. Another pathologist, Dr James, gave evidence for the prosecution, and two pathologists gave evidence for the defence. The Full Court, constituted by the same judges who heard the appeal in 1995, heard submissions on the application. On 13 May 1997 the Full Court held that the application was “incompetent” and dismissed it. On 3 October 1997 the High Court refused to grant special leave to appeal against the decision of the Full Court dismissing the appeal. On the same day the High Court refused to grant special leave to appeal against the decision dismissing the application for an order re-opening the appeal. On 23 February 2007 solicitors for Mr Keogh filed an application for an order that the appeal dismissed on 22 December 1995 be re-opened. The application states that Mr Keogh wishes to present evidence that the autopsy carried out by Dr Manock on Ms Cheney was “incompetent and inadequate upon which to establish both cause and manner of death”. The Court as presently constituted (the other three judges having since retired) heard argument on the question of whether it has power to re-open or resume the hearing of the appeal against conviction. For that purpose the Court had available to it extensive written material indicating the evidence that would be tendered by counsel for Mr Keogh, and the argument that would be put by counsel for Mr Keogh on the basis of that evidence, if the Court re-opens or resumes the hearing of the appeal against conviction. The submissions before the Court proceeded on the basis that it was the material before the Court, and no other material, that would be relied on. In effect, the Court has heard submissions on a challenge by the Director of Public Prosecutions to the Court’s jurisdiction to grant the application made to it, and to the competence of the application. The Court has done so with knowledge of the arguments of fact and law that would be advanced if it re-opens the hearing of the appeal, but without the Court deciding whether all or any of the proposed evidence is admissible. The Court heard no submissions from counsel for the Director on the admissibility of the proposed evidence, nor at this stage does the Court have an indication of the evidence that the Director would tender in answer to evidence admitted by the Court on the application of Mr Keogh.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It follows that the order in this case has been perfected.Conclusion The dismissal of the first appeal against conviction, and the drawing up or perfection of the order of the Court doing so, deprives this Court of jurisdiction to re-open the hearing of the appeal against conviction, or to entertain a second appeal against conviction. The application made by Mr Keogh must be dismissed. BLEBY J: I agree that the application should be dismissed. I agree with the reasons of the Chief Justice. SULAN J: I agree that the application must be dismissed. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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