R v Keogh (No 2)

Case [2014] SASCFC 136

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KEOGH (No 2)

[2014] SASCFC 136

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)

19 December 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - GENERALLY

Application for permission to appeal against conviction pursuant to section 353A of the Criminal Law Consolidation Act 1935 (SA). Applicant convicted of the murder of his then fiancée. The prosecution case, which was entirely circumstantial, was that the applicant drowned the deceased in a bath. At issue in the trial was whether the forensic pathology evidence was circumstantial evidence probative of the applicant’s guilt. In broad terms, the impugned forensic pathology evidence addressed whether the deceased was conscious at the time her head was submerged, whether marks on her legs, head and neck were bruises which had been incurred proximate to the time of death and whether the supposed bruises to her leg resulted from her leg having been gripped in a particular way so as to keep her head submerged in the bath. The application for permission to appeal was brought on the basis that evidence which became available after the trial materially undermined the forensic evidence led at trial. The application for permission to appeal and the substantive appeal were heard instanter.

Whether the evidence relied on by the applicant satisfies the requirements of section 353A(1) of the Criminal Law Consolidation Act. Whether, if the requirements of section 353A(1) are satisfied, there should be a grant of permission to appeal under section 353A(2). Whether, if permission to appeal is granted, there has been a substantial miscarriage of justice pursuant to section 353A(3). Whether to order a retrial or an acquittal under section 353A(4).

Held per the Court (granting permission to appeal and allowing the appeal):

1. The requirements in section 353A(1) of the Criminal Law Consolidation Act are pre-conditions to the conferral of jurisdiction to hear a second or subsequent appeal.

2. The sole ground on which the court may allow an appeal under section 353A is that there has been a substantial miscarriage of justice within the meaning of section 353A(3).

3. To receive a grant of permission to appeal under section 353A(2), an applicant will, at least, need to demonstrate that it is reasonably arguable that the jurisdictional pre-conditions in section 353A(1) and the ground of appeal in section 353A(3) are established.

4. In contrast to the test at common law, the test for fresh evidence under section 353A(6)(a) does not allow for the admission of evidence that is not strictly fresh if it would…

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AGLC
R v Keogh (No 2) [2014] SASCFC 136
Case
[2014] SASCFC 136
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against conviction brought by the applicant, R v Keogh (No 2), before the Full Court of the Supreme Court of South Australia, comprising Gray, Sulan and Nicholson JJ. The appeal was predicated on the admission of fresh evidence, which the applicant contended demonstrated a substantial miscarriage of justice.

The Court was required to determine the proper construction and operation of section 353A of the Criminal Law Consolidation Act, specifically addressing the meaning of "fresh," "compelling," and "in the interests of justice" in the context of a second or subsequent appeal. It also had to consider the evidence to which the Court could have regard when assessing whether a substantial miscarriage of justice had occurred, and the relationship between the jurisdictional requirements of section 353A(1) and the need for permission to appeal under section 353A(2).

The Court reasoned that section 353A(1) establishes a jurisdictional fact that must be satisfied by the applicant on the balance of probabilities, requiring evidence that is fresh, compelling, and in the interests of justice. The Court found that the evidence presented, particularly the second report of Professor Pounder and subsequent acknowledgments by other medical experts, met the criteria of being fresh and compelling. This evidence cast significant doubt on the prosecution's case at trial, suggesting that the deceased's injuries were explicable by an accidental fall and drowning, rather than a homicide. The Court concluded that the admission of this evidence would further the interests of justice and that a substantial miscarriage of justice had occurred.

Accordingly, the Court granted permission to the applicant to appeal and indicated that it would receive additional fresh evidence in accordance with the usual rules. The Court determined that had this fresh and compelling evidence been available at trial, a conviction would not have been inevitable.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In his first report, Professor Pounder proceeded on the assumption that the examination and observations of Professor Vernon-Roberts were accurate. Later, he was requested to examine all of the material himself and to then express his opinions following that examination. Professor Pounder provided a second report, in which he, in substance, confirmed the opinions of Professor Vernon-Roberts. Before this Court evidence was led from Professor Pounder and he was cross-examined by junior counsel appearing with the Director. Both reports were received into evidence. It is convenient for present purposes to refer to the following conclusion reached by Professor Pounder in his second report:Observation and recording of the bruises which form the basis of the allegation of a homicidal assault is both deficient and inaccurate. Two bruises to the back of the head are the result of the autopsy dissection and were not produced in life. There is only one injury to the head and that injury is to the front of the head and not towards the back as was presented at trial. The bruise to the front of the scalp is readily explicable by a forwards unprotected fall and not easily reconcilable with the homicidal scenario advanced at trial which envisaged the deceased on her back in the bath. The erroneous opinion was proffered that the head injury could not have caused unconsciousness and by inference that a fall with resultant head injury could not account for a death by drowning. Bruises to the front of the right shin are typical of those which result from day to day living and there is no objective reason to suggest otherwise. There is no objective evidence, other than the view of the autopsy pathologist, that a lesion to the inner left leg was a bruise and there is compelling microscopic and photographic evidence that it was not a bruise. It was this lesion which was alleged to be a bruise representing the thumb mark of a hand grip. Three bruises to the outer aspect of the left leg, even if regarded as ‘fresh’ or ‘recent’, could have been produced separately at any time within a few days of death as the result of day to day living. The opinion that the bruising to the left leg represents a hand grip is a subjective speculation, a personal hunch, and is so poorly founded on fact that, on the now available evidence, it could not withstand critical analysis. In brief, there is nothing in the autopsy findings, as now known as a result of disclosure of autopsy photographic and microscopic evidence, to suggest that the death is other than a presumed drowning in the bath following a fall and head injury which rendered this unfortunate woman unconscious. The cause of a fall cannot be known with any certainty because consideration of the possibility of a fall was never seriously entertained and the opportunities for appropriate investigations have been irretrievably lost. The broad possibilities are that a fall was the accidental result of a concurrence of circumstances, or that there was an underlying occult natural disease. There is nothing in the medical evidence to raise the suggestion that the death was homicidal or to discount the death as being accidental.[Emphasis added.]

Decision

Reasons for decision

We do not consider that it is contrary to the interests of justice to admit the report as evidence in this proceeding. To the contrary, we consider that the receipt of the report will further the interests of justice.Conclusion Earlier in these reasons, we have identified evidence which we conclude is fresh and compelling as these terms are defined in section 353A. We have also identified evidence which we consider to be fresh in accordance with the common law rules and the decision of Ratten.[69] [69] Ratten v The Queen (1974) 131 CLR 510. On the basis of the following fresh and compelling evidence alone, we conclude that the applicant has established that a substantial miscarriage of justice has occurred. Certain evidence before the jury that was highly probative in the context of the issues at trial should not have been before the jury and evidence highly probative in the context of the issues at trial was either withheld or not then available. We have no doubt that, had the fresh and compelling evidence been before the jury at the applicant’s trial, a conviction would not have been inevitable. We refer to:-the presence of haemosiderin in the area asserted by Dr Manock to be a bruise to the medial aspect of the lower left leg of Ms Cheney;-the recantations of Dr Manock and Dr James that the asserted bruising to the legs of Ms Cheney had occurred no more than four hours before the time of death and had occurred at the same time; -the recantation by Dr Manock that he would expect to have seen a mark on the brain if Ms Cheney had been unconscious prior to her head being submerged in the bath; and-the later acknowledgment by Dr Manock and Dr James that the histology did not support Dr Manock’s macroscopic observation of a medial side bruise and that they knew this at trial. If this fresh and compelling evidence had been available at trial, then the mechanism of murder postulated in evidence by Dr Manock could not have been advanced before the jury. The grip theory advanced by Dr Manock and supported by Dr James would be no more than mere speculation. The evidence of Dr Manock that, according to the pathology, Ms Cheney’s death was a homicide and that other causes, such as a medical event or an accidental fall, were excluded, either could not have been put forward in those terms or, if it had been, would have been largely discredited. We are satisfied that there should be a grant of permission to the applicant to appeal. In any event, on the hearing of the appeal, we consider that it is appropriate to receive additional fresh evidence in accordance with the usual rules that apply to the receipt of such evidence on an appeal under section 353(1) of the Criminal Law Consolidation Act. Accordingly, in finally determining this appeal, we have had regard to the transcript of proceedings from the trial of the defendant, the items of evidence identified in these reasons which could be considered fresh and compelling evidence under section 353A, and the items of fresh evidence to be received in the application of the usual rules that apply to appeals.

Ratio Decidendi

Legal Principle Established

The following issues concerning the proper construction of section 353A arise:-the overall structure and intended operation of the section, including a subsidiary question addressing the inter-relationship between the need for jurisdiction to be made out and the requirement that permission to appeal be obtained;-the meaning of “fresh”;-the meaning of “compelling”;-the meaning of “in the interests of justice”;-the meaning of “substantial miscarriage of justice”; and-the evidence to which the Court is permitted to have regard in determining whether there has been a substantial miscarriage of justice, having identified some evidence that satisfies the requirements of section 353A(1) and granted permission under subsection (2). The Overarching Structure and Operation of Section 353A Section 353A(1) of the Criminal Law Consolidation Act provides that three essential conditions be established before the Full Court will have jurisdiction to hear a second appeal. There must be before the Court evidence that: is fresh within the meaning of section 353A(6)(a); is compelling within the meaning of section 353A(6)(b); and should, in the interests of justice, be considered on an appeal. Any one piece of evidence relied on to found jurisdiction must satisfy all three requirements. It may be that there is only the one essential condition comprised of these three elements. We will refer to this one essential condition under section 353A(1) as the “jurisdictional fact”. The jurisdictional fact must be satisfied by an applicant, who bears the onus of proof in this respect, on the balance of probabilities. Section 353A(1) provides that the Full Court “may hear a second or subsequent appeal against conviction...”. The use of the word “may”, in this context, confers power, not discretion. The Full Court does not have discretion to confer on itself or accept jurisdiction. The legislature has provided for a condition that must be satisfied before jurisdiction will arise in circumstances where, prior to the enactment of this provision, there was no such jurisdiction. Once jurisdiction to hear an appeal is made out, the Full Court has a duty to exercise that jurisdiction, subject to the permission qualification. The expression used is “may hear”. However, this bears the meaning “may hear and determine” in the sense of resolving any such appeal either by dismissing it or by making one of the orders provided for by section 353A(4). Read in this way, an unnecessary and distracting debate about whether or not it makes sense to apply for and obtain permission to appeal as required by section 353A(2), at a time when there can be no appeal to which any permission might attach unless and until the jurisdictional fact has been established, is avoided. In other words, an applicant will seek permission to prosecute an appeal, subject to jurisdiction to hear the appeal ultimately being established before the Full Court. The question arises as to the relationship, if any, between section 353A(1) and the permission requirement provided for under section 353A(2). According to the latter subsection, a convicted person may only appeal under this section with the permission of the Full Court. The requirement to obtain permission operates as a filter in order to protect the Full Court from having to hear an appeal in full which is plainly unmeritorious.