R v Keogh (No 2) - [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 nevertheless establish a miscarriage of justice.
5. The test for whether evidence could, with the exercise of reasonable diligence, have been adduced at the trial under section 353A(6)(a)(ii) is the same as at common law.
6. The word "reliable" in section 353A(6)(b)(i) directs the court’s enquiry to whether the evidence is accurate and trustworthy so as to provide the court with a sound basis upon which to draw conclusions, when considered with other evidence as necessary.
7. The word “substantial” in section 353A(6)(b)(ii) should be given its ordinary meaning. It is qualitative, not quantitative, and denotes evidence being of importance, worth or value.
8. Evidence will be highly probative of the issues in dispute at trial within the meaning of section 353A(6)(b)(iii) if it has a real or material bearing on the determination of a fact in issue which, in turn, may affect the ultimate result in a case. The issues in dispute at trial must be ascertained having regard to the facts and circumstances of each individual case.
9. The phrase “in the interests of justice” is of wide import. Assessing whether it is in the interests of justice to consider evidence on an appeal under section 353A involves, inter alia, consideration of whether the evidence may, when considered with other evidence as necessary, establish a substantial miscarriage of justice under subsection (3).
10. It is not possible to succinctly define a substantial miscarriage of justice. However, before a court will conclude that a substantial miscarriage of justice has occurred, it will consider whether, despite the irregularity, be it procedural or substantive, the conviction was inevitable. If a conviction is inevitable, then it is likely that a substantial miscarriage of justice has not been established.
11. On the hearing of an appeal under section 353A, the court may have regard to the evidence at trial, the evidence that satisfies the requirements of section 353A(1) and evidence that could be admitted as fresh evidence on an appeal under the common law test.
12. The following evidence satisfies the jurisdictional pre-conditions in section 353A(1): Dr Manock’s recantation on the significance of the absence of a sign or mark on the brain; evidence of the presence of haemosiderin in the suggested bruise on the medial aspect of the left leg; Dr Manock’s recantation regarding the aging of the suggested bruises and the evidence that Dr Manock and Dr James knew that the histology did not support the existence of a bruise; Dr Manock’s recantation regarding his mechanism of murder advanced at trial and the expert evidence before this Court on these topics. Permission to appeal under subsection (2) is granted on the basis of each of these items of fresh evidence.
13. The following evidence is admissible on the hearing of the appeal under section 353A under the common law principles of fresh evidence: the evidence concerning bruising to the neck and the top of the head; and evidence of the inadequacy of Dr Manock’s autopsy.
14. The evidence which satisfies the jurisdictional pre-conditions in section 353A(1) alone is sufficient to establish a substantial miscarriage of justice under section 353A(3). This evidence significantly alters the evidentiary landscape that existed at trial. Had this evidence been available at the time of trial, the prosecutor would not have been able to present the case in the way he did at trial.
15. The forensic and medical evidence was only one aspect of the prosecution case. A conviction is open to a properly directed jury based on the evidence as now understood, though not inevitable. Accordingly, it would not be appropriate to order an acquittal. The applicant should be retried.
Criminal Law Consolidation Act 1935 (SA) s 352, s 353, s 353A s 367 and s 369; Evidence Act 1929 (SA) s 34KA, s 45A and s 45B; Statutes Amendment (Appeals) Act 2013 (SA); Supreme Court Act 1935 (SA) s 48; Supreme Court Criminal Rules 2014 (SA) r 119 and r 120; Supreme Court Criminal Appeal Rules 1996 (SA) r 15; Sentencing Act 1995 (WA) s 140; Criminal Procedure Act 2009 (Vic) s 274 and s 276, referred to.
R v Keogh [2014] SASCFC 20; R v Keogh (Unreported, Court of Criminal Appeal, South Australia, Matheson, Millhouse and Mullighan JJ, 22 December 1995); R v Keogh (No 2) (Unreported, Court of Criminal Appeal, South Australia, Matheson, Millhouse and Mullighan JJ, 13 May 1997); Keogh v The Queen [1997] HCA Trans 313; R v Edwards (No 2) [1931] SASR 376; R v Parenzee (2007) 101 SASR 456; Lawless v The Queen (1979) 142 CLR 659; Dair v Western Australia (2008) 36 WAR 413; JLS v The Queen (2010) 204 A Crim R 179; Markby v The Queen (1978) 140 CLR 108; Mallard v The Queen (2005) 224 CLR 125; Nudd v The Queen (2006) 162 A Crim R 301; R v Keogh (2007) 175 A Crim R 153; Keogh v The Queen [2007] HCA Trans 693; Baini v The Queen (2012) 246 CLR 469; Grierson v The King (1938) 60 CLR 431; Burrell v The Queen (2008) 238 CLR 218; Ratten v The Queen (1974) 131 CLR 510; Mickelberg v The Queen (1989) 167 CLR 259; R v Lockyer (1996) 89 A Crim R 457; R v Maiolo (No 2) (2013) 117 SASR 1; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Cesan v The Queen (2008) 236 CLR 358; R v Scott (2012) 115 SASR 19; Davies & Cody v The King (1937) 57 CLR 170; The Queen v Johnson (1979) 22 SASR 161; Harriman v The Queen (1989) 167 CLR 590; R v Nylander [2003] SASC 191; Weiss v The Queen (2005) 224 CLR 300; The Queen v AHK [2001] VSCA 220; Driscoll v The Queen (1977) 137 CLR 517; Maric v The Queen (1978) 52 ALJR 631; R v Hutchinson (1990) 53 SASR 587; Festa v The Queen (2001) 208 CLR 593; Wood v The Queen (2012) 84 NSWLR 581, considered.

R v KEOGH (No 2)
[2014] SASCFC 136
Court of Criminal Appeal: Gray, Sulan and Nicholson JJ
THE COURT.

This is an application for permission from this Court for a second appeal against conviction pursuant to section 353A of the Criminal Law Consolidation Act 1935 (SA). The application has been referred by a Judge of this Court.[1] This Court directed that, in the event that permission is granted, the substantive second appeal will be heard instanter. In the event that permission is granted, the single ground of appeal available under section 353A that must be made out by the applicant is that “there was a substantial miscarriage of justice”.
[1] R v Keogh [2014] SASCFC 20.
Introduction
Anna Jane Cheney died at home during the evening of Friday 18 March 1994. It appeared that she had drowned in a bath. The defendant and applicant, Henry Vincent Keogh, at that time, was Ms Cheney’s fiancée. He attended at Ms Cheney’s home on two occasions that evening. On the defence case, on the first occasion, he left to visit his mother as Ms Cheney was about to take a bath. He returned at about 9.30 pm to find Ms Cheney lying on her side with her face under the water in the bath, apparently unconscious. He removed her from the bath and attempted resuscitation.
Later that evening, the Coroner’s Constable took possession of the body and arranged for its transport to the city mortuary. The body was entered as a non-suspicious death. On Sunday 20 March 1994, an autopsy was conducted by the Chief Forensic Pathologist, Colin Henry Manock. On Monday 21 March 1994, the body was revisited by Dr Manock for further examination.
Dr Manock formed the opinion that Ms Cheney was conscious when her head was submerged in the bath. He formed this view because he found no mark on the surface of the brain at the autopsy. This, in part, caused Dr Manock to exclude a natural cause or misadventure leading to a fall and a loss of consciousness as an explanation for her drowning. Within days of completing his autopsy, Dr Manock formed the opinion that Ms Cheney’s drowning was assisted.
On 27 June 1994, Dr Manock attended at Ms Cheney’s home and made observations of the bath. These observations fortified him in his opinion that Ms Cheney’s drowning was an assisted drowning. On 28 June 1994, he provided a report setting out his opinion in the following terms:
A person sitting at the plug end of the bath could be immersed with relative ease by lifting the feet and at the same time pressing down on the head or on the shoulder with the other hand. This mechanism requires the assailant to place the right hand under the deceased’s right ankle and grip the left ankle. With water in the bath the floatation effect means very little effort is required for this manoeuvre as the submerged parts of the deceased are weightless. If the legs are then folded down towards the head the deceased would have been unable to struggle effectively and would quickly lose consciousness.
The shape of the bath means that with the shoulders on the bottom of the bath there is nothing for the hand to hold on to for leverage and the range of movement is further restricted by the deceased’s own body. The deceased was (5 feet 6 inches) 167cms and 56kgs.
It is my opinion that the bruise at the junction of the neck and the back of the head was caused as the deceased was forced down into the bottom of the bath and represented only a minor blow which would not have caused any loss of consciousness.
[Emphasis added.]
Dr Manock considered that bruising to the lateral and medial aspects of Ms Cheney’s lower left leg evidenced the grip and that bruising to her head and the back of her neck was caused as her head came into contact with the hard surface of the bath. In Dr Manock’s opinion, histological examination of tissue confirmed all bruising observed by him to have been sustained at some time within the period of four hours preceding death.
The first trial of the applicant for murder was concluded when the jury could not return a verdict. At the second trial, the prosecution case was that the autopsy findings and opinions of Dr Manock were items of circumstantial evidence probative of the applicant’s guilt. It was accepted that the forensic pathology evidence was not, of itself, sufficient to prove the applicant’s guilt beyond reasonable doubt. It was the prosecution case that the applicant’s guilt was established by the forensic pathology evidence of Dr Manock, together with other circumstantial evidence principally establishing opportunity and motive.
The trial Judge, in summing up, reminded the jury of the prosecution case. The Judge drew the jury’s attention to the evidence of Dr Manock’s qualifications and extensive experience as a pathologist. Notwithstanding differences between the evidence of Dr Manock and that of other pathologists, the Judge left it open to the jury to accept Dr Manock’s evidence in its entirety.
On 23 August 1995, the applicant was convicted by jury verdict of murder.
On 22 December 1995, the applicant’s first appeal to the Court of Criminal Appeal was dismissed.[2] On 13 May 1997, the Court of Criminal Appeal dismissed an application to reopen the first appeal or entertain a second appeal on the ground that the Court had no jurisdiction to do so.[3] On 3 October 1997, the High Court refused to grant special leave to appeal from this decision.[4]
[2]    R v Keogh (Unreported, Court of Criminal Appeal, South Australia, Matheson, Millhouse and Mullighan JJ, 22 December 1995).
[3]    R v Keogh (No 2) (Unreported, Court of Criminal Appeal, South Australia, Matheson, Millhouse and Mullighan JJ, 13 May 1997).
[4]    Keogh v The Queen [1997] HCA Trans 313.
On 22 June 2007, a further application to the Court of Criminal Appeal to reopen the first appeal was dismissed again on the ground that the Court lacked the jurisdiction to entertain the appeal.[5] On 16 November 2007, the High Court refused to grant special leave to appeal from this decision.[6]
[5] R v Keogh (2007) 175 A Crim R 153.
[6] Keogh v The Queen [2007] HCA Trans 693.
The applicant has, since his conviction, petitioned the Governor for mercy on five occasions. The first three petitions were rejected. The fourth petition was withdrawn. The fifth petition awaits resolution. It is understood that the Attorney-General has deferred resolution of the fifth petition pending the outcome of the application before this Court.
Following the enactment of section 353A of the Criminal Law Consolidation Act, with operation from 5 May 2013, this Court has jurisdiction to hear a second or subsequent appeal in certain, limited, circumstances. The applicant has applied to this Court, pursuant to section 353A, for permission to appeal against his conviction.
The prosecution case at trial was circumstantial. The evidence led fell within the following categories: motive; opportunity; conduct of the applicant, including lies; and forensic evidence.
The primary forensic evidence was led from Dr Manock, the pathologist who, as noted above, conducted the autopsy. His evidence was supported in most respects by another senior pathologist, Ross James. Their forensic evidence formed an important component of the prosecution case. The prosecutor, both in his opening and closing addresses, referred to and relied on Dr Manock’s evidence of his autopsy findings and his opinions as to the cause and mechanism of death. The Judge, when summing up, reminded the jury of the submissions of the prosecution in the final address and left it open to the jury to accept and act on Dr Manock’s evidence. The prosecutor also relied on the supporting evidence of Dr James. The Judge, when summing up, reminded the jury of these submissions and left it open to the jury to accept and act on Dr James’ opinions. These directions were appropriate in the circumstances as known at the time.
Following the trial, Dr Manock recanted on material aspects of his evidence given at trial. The matters on which he recanted, to be discussed in detail later in these reasons, included a central basis for his conclusion that Ms Cheney was conscious at the time when her head was submerged in the bath, his opinion that all of the bruising observed on the body had been sustained within the period of four hours preceding death and his opinion as to the mechanism of murder. In addition, Dr Manock later acknowledged that evidence he gave at trial to the effect, at least by implication, that his microscopic examination supported the conclusion that the medial side mark was a bruise, was wrong. Dr Manock’s recantations and changes of opinion, for reasons to be discussed later, qualify as fresh and compelling evidence which should be considered on an appeal in the interests of justice, within the meaning of section 353A. The materiality or significance of his recantations has been addressed or placed in its proper context by expert evidence led on this appeal from Derrick John Pounder, Anthony Charles Thomas and Matthew Joseph Lynch.
In assessing the materiality of Dr Manock’s recantations, it is important to have regard to evidence accepted by the Director of Public Prosecutions as being fresh within the meaning of section 353A. That evidence is the result of testing conducted in February 2014 by Professor Thomas on tissue taken from the medial aspect of Ms Cheney’s lower left leg and the detection of the presence of haemosiderin in that tissue. As will be explained later in these reasons, haemosiderin is a by-product of the healing process consequent on a person suffering, inter alia, a bruise or some type of tissue lesion. However, haemosiderin will be detectable no earlier than 24 hours after the bruise or lesion to which it relates is suffered.
The possible presence of haemosiderin was first identified in the 2004 report of Barrie Vernon-Roberts. The report included a recommendation that particular tissue be tested for the presence of haemosiderin and sought permission to do so. For reasons unknown to this Court, that testing was not then undertaken. Professor Vernon-Roberts’ report of 2004 was released to the applicant’s advisors on 5 December 2013. In February 2014, the testing recommended by Professor Vernon-Roberts was undertaken by Professor Thomas. This testing confirmed the tentative view expressed by Professor Vernon-Roberts that tissue taken from a possible lesion on the medial aspect of Ms Cheney’s left leg contained haemosiderin. As a consequence, if the possible lesion was in fact a bruise, the conclusion could be safely drawn that it had been sustained at least 24 hours before death. The consequence of such a finding is that Dr Manock’s opinion as to the mechanism of murder is materially undermined.

We consider that it is highly probable that, when commencing the autopsy, Dr Manock approached his task on the basis that the death was non-suspicious. As the autopsy proceeded, he formed the opinion that death was the result of fresh water drowning. There were several indicators, including oedema in the lungs and differential haemolytic staining, that Dr Manock relied on as suggesting fresh water drowning. Dr Manock’s examination of the brain failed to reveal a mark or sign that there had been force leading to a loss of consciousness. This, in Dr Manock’s opinion, led to the conclusion that death was caused by assisted drowning. Dr Manock, at an early stage in his investigation, excluded any other cause.
Dr Manock’s autopsy report and body chart record bruising on the body – to the top of the head, the back of the neck, the lower right leg and the lower left leg. He formed the opinion that all bruising had been sustained within four hours prior to death. His examination of the bruising to the lateral and medial aspects of the left lower leg led him to conclude that those bruises evidenced a grip mark as a consequence of a right hand gripping the left calf just above the ankle from underneath the leg. This, in turn, led Dr Manock to form the opinion that a person had placed their right arm under both legs of Ms Cheney while she lay in the bath, gripped the left ankle with the right hand and then, with the right leg cradled in the right arm and the left ankle gripped by the right hand, raised both legs, forcing Ms Cheney’s head to be submerged. In Dr Manock’s opinion, at least by inference, this mechanism allowed the left hand free movement to assist in the drowning.
Dr Manock expressed this opinion in his earlier extracted report of 28 June 1994, prepared following an inspection of the bath in Ms Cheney’s home. At trial, it was the prosecution case that the evidence supported Dr Manock’s opinion concerning the mechanism of murder. The trial Judge, in summing up, reminded the jury of this submission and of Dr Manock’s evidence. This opinion was supported by the evidence of Dr James. Subsequent to the trial, Dr Manock recanted on his opinion that a right hand had been used to grip the left ankle and instead postulated that a left hand had been used.
The evidence of the presence of haemosiderin in the tissue taken from a mark on the medial aspect of the left lower leg and the recantations of Dr Manock have been the subject of detailed review by two independent forensic pathologists, Professor Pounder and Dr Lynch. They are in agreement in respect of most matters. Both consider that the autopsy conducted by Dr Manock was inadequate in material respects. This view was expressed by Professor Vernon-Roberts in his 2004 report. Both Professor Pounder and Dr Lynch agree with the essential opinions that were expressed by Professor Vernon-Roberts.
The evidence of Professor Pounder and Dr Lynch allows an assessment to be made of the materiality and significance of the fresh evidence. Having reviewed the relevant material, including the photographic and microscopic evidence, both agree that there is nothing in the autopsy findings to exclude the probability that Ms Cheney’s death was a drowning in the bath following a fall and head injury which rendered her unconscious. Further, they both agree that the cause of a fall cannot be known with any certainty because consideration of a possibility of a fall was never seriously entertained and the opportunities for investigation have been irretrievably lost. The broad possibilities are that a fall was the result of a concurrence of circumstances, such as an accidental slip or a fainting episode, or that there was an underlying occult natural disease. Finally, they agreed that there was nothing in the medical evidence to raise the suggestion that the death was homicidal or to discount the death as being accidental.
As will be explained, the prosecution’s circumstantial evidence case at trial was based on much more than just the pathology evidence. The prosecution had a strong evidentiary basis for establishing, inter alia, motive and opportunity. However, Dr Manock was presented as a very experienced forensic pathologist, as the State’s senior forensic pathologist and as being a more experienced pathologist than any other expert witness in the case.
To our minds, there can be little doubt that the jury would have considered Dr Manock’s evidence and given it substantial weight. At the very least, there is a real risk that they would have done so. His opinion as to the mechanism of murder and his physical demonstration using a bath in the courtroom provided the jury with a readily understood mechanism. Dr Manock’s evidence – now known to be incorrect – as to the ageing of the bruises to within four hours of death was supported by Dr James, who expressed the view that the bruises would have been sustained within an even shorter time of death. The jury were denied evidence on critical matters that now render Dr Manock’s opinion as to the mechanism of murder no more than unsustainable speculation. In our view, the applicant did not receive a fair trial and there has been a substantial miscarriage of justice. There can be little doubt that, if the fresh evidence and the opinions of Professor Pounder and Dr Lynch were before the Court, the jury may have concluded that there existed a reasonable hypothesis consistent with innocence.
Having regard to the foregoing, we have reached the conclusion that permission to appeal should be granted, the appeal allowed and an order made for a retrial. We recognise that there may be impediments to the conducting of a retrial, but these are matters to be addressed in an appropriate forum at a later time. It is convenient that we now set out in detail our reasons for these conclusions.
Overview
An appeal under section 353A is only available where, inter alia, an applicant can produce evidence that is fresh and compelling as defined in section 353A. The applicant submitted that a number of the findings and opinions of Dr Manock were seriously flawed and that these flaws are established by fresh and compelling evidence.
One matter referred to was evidence discovered by the applicant in late 2013 and early 2014 to the effect that it is highly likely that the suggested medial bruise on Ms Cheney’s left leg was sustained more than 24 hours before death. It was further said that the suggested medial bruise was, in fact, not a bruise at all. It was also pointed out that, post trial, Dr Manock had acknowledged that his evidence as to the ageing of the bruises was flawed at least to the extent of acknowledging that the bruising he claimed to have observed could have been sustained at any time within the 24 hours preceding death, rather than four hours. As a consequence, it was contended that the grip scenario which was the subject of Dr Manock’s opinion and evidence at trial could not be sustained.
Another matter referred to by the applicant concerned Dr Manock’s opinion at trial that Ms Cheney was conscious at the time when her head was submerged. This opinion was based on Dr Manock’s view that unconsciousness was excluded because he found no sign or mark on the brain during his autopsy. The applicant’s case is that a natural cause, for example, a cardiac event, or an accidental slip or a faint caused by hypotension, perhaps induced by standing up from a hot bath with a blood alcohol content of approximately 0.1,[7] leading to a fall with Ms Cheney hitting her head and being rendered unconscious, could not be excluded as a reasonable possibility consistent with innocence. However, Dr Manock’s evidence that Ms Cheney must have been conscious because of the absence of any sign on the brain indicative of unconsciousness, if accepted by the jury, would likely result in them excluding this as a reasonable possibility.
[7] The reading noted at the autopsy was 0.08. However, it is common ground that physical responses as a consequence of dying can depress such a reading and that the reading at the time of death was likely to be in the order of 0.1.
Evidence was led before this Court that, in 2009, Dr Manock recanted from his opinion that there had to be a sign or mark on the brain for there to have been a state of unconsciousness. The recantation was made on oath by Dr Manock when giving evidence before the Medical Tribunal. It followed, the applicant said, that a natural cause or misadventure could not be excluded and the jury had been materially misled in this respect.
There are a number of other aspects of Dr Manock’s opinions referred to by the applicant which are said to be seriously flawed and amount to fresh and compelling evidence. They include a recantation by Dr Manock concerning his preferred mechanism or process by which Ms Cheney’s legs were raised, forcing her head to be submerged. Attention was drawn to Dr Manock’s evidence given before the Medical Board in 2004 and before the Medical Tribunal in 2009 and to his statements in an Australian Broadcasting Commission interview. The effect of this subsequent evidence was that instead of the right hand of the assailant being used, as asserted at trial, it was the left hand that had been used.
The further matters said to amount to fresh and compelling evidence include the cause of the neck bruising, the inadequacy of the autopsy conducted by Dr Manock and his evidence concerning differential haemolytic staining of the aorta as compared with the pulmonary artery.
In 2004, the Attorney-General was considering the applicant’s third petition for mercy. On 3 February 2004, the Solicitor-General requested the Institute of Medical and Veterinary Science to provide a medical opinion on issues raised in the third petition. Professor Vernon-Roberts, the then Director of the Institute, advised that he would provide the opinion. On 20 October 2004, the Solicitor-General wrote requesting that Professor Vernon-Roberts consider certain material and respond to 19 specific questions. In his report of 22 November 2004, Professor Vernon-Roberts provided his opinions to these questions. On the hearing of the appeal, the applicant tendered that report. For reasons to be separately given, the tender, opposed by the Director of Public Prosecutions, has been accepted and the report received into evidence pursuant to evidentiary aid provisions in the Evidence Act 1929 (SA).
These opinions will be discussed in detail later in these reasons. However, it is appropriate to highlight several matters immediately. Professor Vernon-Roberts was critical of the extent of Dr Manock’s selective sampling of the “bruises” on Ms Cheney’s legs. It was said to be seriously inadequate having regard to Dr Manock’s subsequent conclusion as to the mode of death. More particularly, the Professor considered that the histology from the suggested bruise to the medial aspect of the left leg appeared to disclose the presence of haemosiderin. If this were to be confirmed, it would be evidence that a lesion, which could include a bruise, had been sustained at this site more than 24 hours before death. The Professor recommended that further testing be undertaken. However, as this might involve the destruction of tissue, he sought authorisation to undertake such testing. Such further testing was not then undertaken. The reason for this was not explored on the appeal. However, following the release, on 5 December 2013, of Professor Vernon-Roberts’ report to the applicant’s solicitors, further histological testing was undertaken. The presence of haemosiderin in the sample taken from the medial aspect of the left leg was confirmed.
In his report, Professor Vernon-Roberts expressed the following opinion:
My preference as an hypothesis for the sequence of events leading to Ms Cheney’s death is that she lost consciousness after having sustained an initial fall in blood pressure due to blockage of a small artery in her heart or during a faint. While falling backwards[8] from an erect position she struck her head on the bath before sliding under the water and drowning while unconscious.
I believe that there is a lack of essential pathological findings to sustain the hypothesis that Ms Cheney drowned as a result of a person gripping her lower legs forcibly to apply traction leading to immersion of her face.
[Emphasis removed.]
[8] It is to be noted that when expressing this opinion in 2004, Professor Vernon-Roberts did not have available to him Professor Pounder’s views and reasoning to the effect that the observed neck bruising was most likely artefactual, that is, a product of the autopsy itself, thus leaving open the possibility that, on Professor Vernon-Roberts preferred hypothesis, Ms Cheney might have fallen forward.
Professor Vernon-Roberts was not medically fit to give evidence at the time of this appeal, hence the earlier referred to opposition to the applicant’s tender of his report. As a consequence of the Professor’s unavailability, the applicant sought the opinion of Professor Pounder, former Professor and Head of the Department of Forensic Medicine and Director of the Centre for Forensic and Legal Medicine, University of Dundee in Scotland, from August 2006 to February 2014.
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.]
The Director sought an opinion from Dr Lynch, a senior forensic pathologist at the Victorian Institute of Forensic Medicine. Dr Lynch provided written reports, was called to give evidence by the Director, and was cross-examined by counsel for the applicant. Dr Lynch’s reports were received into evidence. For present purposes it is convenient to refer to an extract from Dr Lynch’s report of 18 September 2014, where he expressed his agreement with the view of Professor Pounder:
…However [sic] point of critical agreement, in my view, is that Professor Pounder opined that there was no evidence to suggest the death was other than a presumed drowning in the bath following a fall with head injury, rendering the deceased unconscious and that there was nothing in the medical evidence to raise the suggestion that the death was homicidal or to discount the death being accidental.
[Emphasis added.]
The applicant contended that the evidence of haemosiderin, the recantations of Dr Manock and the evidence of Professor Vernon-Roberts, Professor Pounder and Dr Lynch is fresh and compelling within the meaning of section 353A(1). It is further contended that if the jury had the assistance of this evidence in 1995, it is a reasonable possibility that they would have returned a verdict of not guilty as the prosecutor could not have excluded all reasonable hypotheses consistent with innocence.
The question before this Court, using the language of section 353A(3), is whether this evidence demonstrates that a substantial miscarriage of justice has occurred. Authoritative guidance on the meaning and application of such a test has recently been provided by the High Court in Baini,[9] discussed later in these reasons.
[9] Baini v The Queen (2012) 246 CLR 469.
The Director challenged the admissibility of almost all of the material relied on by the applicant in this proceeding on the ground that it is variously neither fresh nor compelling, or is otherwise not admissible.
The Trial
There was no strong challenge at trial to the proposition that Ms Cheney had drowned, although this was not conceded. The central issue was whether her drowning may have been accidental, perhaps as a consequence of a slip in the bath or a medical event, or whether it was deliberately caused by another. There was no dispute at trial or before this Court that, if drowning had been deliberately caused by another, then the applicant was the only person who could have been responsible.
The Prosecution Case – An Outline
The prosecution led evidence from two forensic pathologists, Dr Manock, who, as noted earlier, conducted the autopsy, and Dr James, who provided a review opinion. The prosecution case was circumstantial. The case was not one that could be established by the evidence of the forensic pathologists alone.
Dr Manock was the principal pathologist called. He described the cause of death as fresh water drowning. His evidence was said by the prosecution to exclude innocent explanation. The prosecution relied on the expert opinions of Dr Manock to exclude accidental death. Although Dr Manock described the cause of death in terms of the post-mortem finding as “freshwater drowning”, it was his evidence as to how this came about that was important to the prosecution case in excluding accident or other innocent explanations.
Dr Manock gave evidence that Ms Cheney drowned while she was conscious. Dr Manock stated that he could exclude any loss of consciousness before Ms Cheney drowned because of the absence of a sign on the brain at post-mortem. It followed that any trauma leading to the bruises he observed on the head and neck region could not have been of sufficient intensity to lead to loss of consciousness before she drowned. Dr Manock excluded accident; as the only way a person could drown while they were conscious is if they were assisted, that is, homicide.

Dr Manock gave evidence of post-mortem observations, including bruising to the head, back of neck and both legs, which were relevant to the question of whether a third party participated in Ms Cheney’s death. He drew attention to marks he described as bruises on her left leg consistent with a grip, including, in particular, a “medial bruise” where the thumb would be placed for a grip. He demonstrated to the jury how the thumb and three fingers on his right hand could be made to fall on the marks in a manner that matched his description of a grip.
According to Dr Manock, all of the bruises he observed were inflicted at the same time within four hours of death. Dr Manock explained to the jury how the grip mark on Ms Cheney’s leg at or about the time of death could, in his opinion, lead to the inference of murder. Dr Manock demonstrated, with the assistance of an empty bath in the courtroom, a particular mechanism to the jury. Dr Manock explained that his demonstration fitted with his post-mortem findings.
Dr James supported Dr Manock’s evidence that the bruises on the left leg fitted the pattern of a grip mark, and the medial bruise was the “signature thumb”.
Other evidence led by the prosecutor at trial was said to establish the following:
-the applicant stood to benefit from $1,150,000.00 in life insurance payments from the death of Ms Cheney;
-a number of life insurance policies had been taken out by the applicant in Ms Cheney’s name by forging her signatures;
-although the applicant was engaged to be married to Ms Cheney, he was carrying, or had carried, on one, if not two, intimate relationships during his engagement;
-on the evening before Ms Cheney’s death, she and the applicant had signed a “notice of intended marriage”;
-on the day before Ms Cheney’s death, one of the women with whom the applicant was alleged to have been intimately involved ended her relationship with him;
-the applicant had told others he did not wish to re-marry and did not want to have more children;
-despite the wedding being scheduled for 24 April 1994, some five weeks after Ms Cheney’s death, with a two week honeymoon to follow, the applicant had not booked any annual leave from his workplace;
-notwithstanding the applicant’s account that he had removed Ms Cheney from the bath, where she had been completely submerged, and immediately called for ambulance attendance, two ambulance officers found her body dry and her hair only “damp” when they arrived six minutes after the call was made;
-the applicant’s claim to ambulance officers that water had come out of Ms Cheney’s mouth when he performed cardiopulmonary resuscitation on her prior to the arrival of the ambulance was inconsistent with the ambulance officers’ observations that the area around Ms Cheney’s head was dry; and
-the applicant made inconsistent statements to others about the circumstances leading to Ms Cheney’s death in the days following, which the prosecution characterised as lies.
The Director submitted to this Court that a significant aspect of the prosecution case at trial was that the applicant stood to profit from the death of Ms Cheney from life insurance policies organised by him through agencies he held with insurance companies. The applicant was the beneficiary of all policies. The policies were established through the applicant forging Ms Cheney’s signature on the application documents.
The Defence Case – An Outline
The defence case at trial was that the applicant was at Ms Cheney’s home when she returned at about 8.00 pm from walking her dogs. She then ran a bath. The applicant left to visit his mother shortly before 8.30 pm. He returned to Ms Cheney’s home at about 9.30 pm to find Ms Cheney unconscious and completely submerged in the bath. He removed Ms Cheney from the bath and contacted the ambulance service. He delivered CPR to Ms Cheney prior to the arrival of the ambulance officers. He denied, both to the police and in evidence, having anything to do with Ms Cheney’s death.
Stephen Moyle Cordner and Anthony Joseph Ansford were called by the defence. They disputed Dr Manock’s evidence that the absence of a sign of trauma on the brain necessarily meant that Ms Cheney had not lost consciousness.[10] Contrary to Dr Manock’s evidence, Professors Cordner and Ansford expressed the opinion that, on the basis of the pathology, accidental drowning caused, for example, by a fall, could not be excluded, nor could death or a fall due to natural causes such as cardiac failure be excluded. In addition, they took the view that the marks described by Dr Manock on the leg, even assuming they were bruises, were equivocal and consistent with causes other than a grip mark. They also expressed the opinion that one could only describe the bruises as recent, meaning occurring within the 24 hours prior to death. The defence also called Dr Robert Murray Edwards to support the hypothesis of a faint leading to accidental drowning based on Ms Cheney’s blood alcohol content combined with being in a hot bath.
[10] Dr James, called by the prosecution, also disputed this aspect of Dr Manock’s evidence.
The applicant gave evidence at trial that Ms Cheney was well aware that he was to sign her signature on the applications for insurance cover. He explained that he was seeking to generate policies to support his insurance agency business. The defendant denied that he was having a more recent affair, as alleged by the prosecution. It was his case that the other circumstances relied on by the prosecution, when properly understood, did not support the prosecution’s suggestion of motive.
Opening Addresses
Before we discuss the issues arising in the present proceeding, it is convenient to outline the openings of the prosecution and defence on the issue of the cause of death and the expert forensic pathology evidence.
During his opening address, the then Director told the jury:
On 15 March last year, Anna Jane Cheney had her 29th birthday. She was a fit, healthy young woman. She had a promising career as a lawyer. She thought she was about to be married. Three days later, she was dead, drowned in the bath of her home at Magill – and, on the Crown case – with recent bruising, particularly on the left lower leg consistent with a grip mark.
...
Postmortem examination was conducted by Dr Manock on the Sunday and completed on the Monday, remembering the death was on the Friday evening. He found the cause of death to be fresh water drowning. He found bruises on the top of her head and the back of her neck. He found bruises consistent with fingers applied in a grip on the lower left leg, and there was a row of bruises on the lower right shin. On the Crown case, those injuries are consistent with, and indicate, a forced drowning: The head pushed under the water; the bruising of the back of the neck caused by the neck striking the edge of the bath as the head is pushed down; the bruising on the left leg consistent with the leg being gripped and held in a position so as to immobilise Miss Cheney.
The blood alcohol reading of Miss Cheney revealed a level of 0.08 which the pathologist, Dr Manock, and Dr James, another pathologist who checked the findings, do not regard as significant. No other drugs were found in the body. No other contributing cause was found: Heart attack or stroke, epilepsy, electrocution with a hair dryer or radio. Nothing like that was found.
...
As I said the Crown does not have to prove precisely the why, how and when he committed the murder but rather beyond reasonable doubt the fact that he did, particularly eliminating the suggestion it was a tragic accident which fortunately the Crown would suggest, but for the post-mortem findings, would have provided the accused with his freedom and the means to enjoy it.
[Emphasis added.]
Central to the case for the prosecution was the evidence of Dr Manock that accident and natural causes could be excluded given the absence of any “sign” on the brain and that bruising to the left leg was consistent with the grip theory.
In opening the case for the defence, counsel referred to the medical evidence. He stated that the defence experts, Professors Cordner and Ansford would give evidence that “you cannot preclude accident, medically speaking, as a genuine possibility in this case”. He also informed the jury that Dr Ansford would say as to the bruising to the left leg that, although he accepted it as a possibility that the bruises were consistent with a grip, he had severe reservations about that possibility.
Defence counsel informed the jury that the witnesses for the defence disagreed with Dr Manock’s evidence that he would expect to see some sign of unconsciousness if Ms Cheney had been unconscious due to a slip and a fall and that the defence witnesses would establish that Dr Manock’s view was medically incorrect. It was said that the evidence of the defence witnesses, supported by Dr James, would be that a person can be “knocked unconscious without a mark or sign being left, either internally that is on the brain, or externally”. Counsel informed the jury that the resolution of that medical dispute might be vital to the case because it formed the basis of Dr Manock’s evidence which excluded accident.
Closing Addresses
A major component of the prosecutor’s closing address was that, although Dr Manock’s evidence was not conclusive, it strongly supported the prosecution case of murder. The prosecutor, during the course of his address, returned repeatedly to Dr Manock’s evidence. The following extracts demonstrate the considerable weight placed on that evidence:
... By Monday [21 March 1994] Dr Manock has conducted the post-mortem examination and there are abnormalities. There are bruises that don’t have an obvious explanation: The bruising to the legs, the bruising to the back of the neck, the bruising to the head. He rings the police. His office rings the police.
...
… We are talking about did Henry Keogh deliberately drown her in the bath that night, or, was it some tragic accident when Mr Keogh was absent; she slipped, fainted, fell and drowned?
In my submission for the slip, faint, fall [situation] there are no indications, no positive indications. As Dr James said, it would require a complex choreography to imagine the fall producing the injuries that were observed. Now I will come back to this in more detail later, but any choreography, ladies and gentleman, in my submission, doesn’t explain the bruising on the legs, particularly the bruising on the left leg.
It is not just that, because you have to think, yes, she might have fallen in such a way that the bruising on the head occurred, she might have lost consciousness because of those applications of force at the back of the neck or the top of the head, or there may be some other bang that didn’t leave any external mark, no internal mark and she lost consciousness, but even if she did lose consciousness, she then has to fall into the bath in such a way that her head is submerged, and so unconscious that she doesn’t revive and drowns. All those things have to be a reasonable possibility to allow for accident.
...
So my own submission is that there really are no positive indications pointing you to accident. Whereas to murder I suggest the bruising on the lower left leg, if that is a grip mark, is almost in itself conclusive, providing you accept that it was applied at or about the time of death. Whether in the way I put to Dr Manock as a possible factual situation or not doesn’t matter, but if her lower left leg was gripped by someone just before she died, then that must indicate murder, whether it is a folding over or not or whether it is just a pull up to bring her head under the water, the rapid unconsciousness when the water goes up the nose.
The Crown doesn’t have to prove precisely the method. It has to prove a deliberate act by the accused.
...
That is all we are talking about here. All the pathologists, to varying degrees, will say or have said that this is consistent with homicide. Dr Manock said ‘It is not consistent with accident because I can find no evidence of loss of consciousness, external or internal’. The other three don’t go that far, so therefore they all concede the possibility of accident in a complex, complicated scenario of a fall.
Really, however far the pathology takes you, we have to look at all the circumstances. If everything else was in favour of the accused, that he wasn’t going to benefit in any way, other than perhaps by the will, inherit the heavily mortgaged house; if there was no insurance policies; if the insurance policies weren’t forged and fraudulent as they are; if the evidence was that there were no other women in his life, and all the indications were of complete devotion to Anna Jane; that all the wedding preparations, if you like, were centring around him as well as Anna Jane and he was moving eagerly anticipating the wedding, you might give him the benefit of the doubt, explain away in some way, the one positive indication of murder, namely the grip mark on the bottom left leg.
...
Ladies and gentleman, to all intents and purposes Anna Jane Cheney was worth $1.15 million to Henry Keogh if she died accidentally. You might think he nearly got away with it. It was a clever method of killing. But a pathologist believed, rightly or wrongly, there had to be physical evidence for loss of consciousness and believed that four bruises on her left lower leg were inflicted at about the time of her death, and believed that they were a grip mark because he put his own fingers and thumb on the marks and they fitted, and because of that the pathologist, Dr Manock, will no doubt be roundly criticised by my friend because he got this wrong about unconsciousness leaves bruising on the brain. However, he is the most experienced pathologist who was called in this trial quite clearly: 30 odd years, 10,000 autopsies.
[Dr Manock] takes a different view to Dr Cordner, to Dr Ansford, even to his colleague Dr James, whom the prosecution called. So be it. He was the one who saw the body, who put his hand on the marks on the lower leg and said ‘That’s consistent with a grip mark and I can’t think of anything else it could be’. Even Dr James said ‘Well, it is the obvious explanation in the absence of anything else.’
...
When we talk about the bruising, if they are inflicted at the same time, and if that time is at or just before death, then the bruising to the legs can be explained by no other evidence or situation other than murder and murder by the accused.
...
It’s a verdict you will find on all the evidence. No one piece of evidence, you might think, will solve this for you. The forensic pathology, you have heard the experts. ‘We can’t solve it for you’. But there are two things, you might think, that are crucial to this case. If those four bruises on her lower left leg were inflicted at the same time, and that time was just before she died in the bath, there is no other explanation for them, other than a grip mark. If it was a grip, it must have been the grip of the accused. If it was the grip of the accused, it must have been part of the act of murder.
[Emphasis added.]
In summary, the defence address was that the prosecution could not prove that the death of Ms Cheney resulted from the applicant gripping her left leg and immobilising her with her head submerged under water. It was submitted to the jury that Dr Manock’s evidence of the need for a sign or mark on the brain before being able to conclude that Ms Cheney might have been rendered unconscious was incorrect. It was contended that the marks on the left leg said to be a grip mark were equivocal. It was argued that it did not follow that the only explanation for their presence was that they were inflicted at the same time within four hours of death. It was said that the location and nature of the bruising was consistent with innocent causes.
The defence further argued that causes of death other than assisted conscious drowning, for example accident or a medical event, could not be excluded beyond reasonable doubt. In particular, it was submitted that the dispute between the defence pathologists and Dr Manock was critical to the jury’s consideration of whether such other causes could be excluded.
Summing Up of the Trial Judge
In the course of summing up, the Judge referred at some length to the forensic pathology evidence and, in particular, to that of Dr Manock.
Early in the summing up, the Judge directed the jury in conventional terms as to the approach to be taken to the evidence of expert witnesses. It was emphasised that it was important for the jury to assess their “credibility and accuracy”.
Having issued a number of general directions and explanations, the Judge reminded the jury of what he described as the “broad approach” of the prosecution. He reminded the jury that the prosecution case was reliant on circumstantial evidence and, in particular, the combined effect of that evidence. The Judge then identified the main items of circumstantial evidence, including “the evidence of what was found at the post-mortem examination and the opinions expressed by the pathologists”. The trial Judge’s first detailed reference to Dr Manock was in the following terms:
... The pathologist, Dr Manock, described her as a healthy woman with no sign of any underlying pre-existing medical condition, and of course he reaches that conclusion after performing a post-mortem examination.
The Judge returned to the topic of expert opinion evidence and, in providing the customary directions, he emphasised that the members of the jury were the sole judges of the facts and entitled to assess and accept or reject any opinion by whomever it is expressed as they saw fit.
The Judge then continued:
It is for you to give such weight to the opinion of expert witnesses, both prosecution and defence, as you think they should be given, having regard to the qualifications of the witness, the reliability or otherwise of the witness, and the extent, if any, to which the witness’s opinion accords with other facts which you find proved to your satisfaction, or the extent to which a particular witness’s evidence is in disharmony with other views expressed by other witnesses.
[Emphasis added.]
The Judge addressed the experience of Dr Manock as follows:
He told you that he had been the senior director of forensic pathology in the State Forensic Science Centre in South Australia. He said he had performed over 9,000 post mortem examinations, and since records had been kept about 100 of these cases have been concerned with drowning.
[Emphasis added.]
The Judge, in a number of passages, reminded the jury of the views expressed by Dr Manock, including the following:
In [Dr Manock’s] view death in this case resulted from fresh water drowning. He could find no evidence of any underlying cause or medical condition which might have contributed to the drowning. He formed the opinion that at the time of her death Anna Jane was a healthy young woman.
...
I return for the moment to Dr Manock’s evidence of the post mortem examination. He said he found some bruising on the body. He said there was bruising on both legs and further bruising to the head and neck. I will refer to the sites of those injuries and the further description which was given of them in a moment, but you will remember the evidence on attempting to estimate the age of bruising.
Dr Manock said that estimates of the time when bruising was caused were difficult to give, particularly if the expert relied solely on observations with the naked eye. I think that was a point upon which all pathologists agreed.
In this case, with naked eye observations, he could not say more than that the bruising he saw would have been caused within 24 hours prior to death; that is, any time within that period including about the time of death.
However, he told you that he took sections from various locations – at least one of the pathologists did. He explained to you that they were like little particles of postage stamp thickness taken from the bruise itself. After examination of these sections through the microscope he was able to say, according to his evidence, that the bruising from which those sections were taken would in his opinion have been caused up to four hours before death.
...
Where then did Dr Manock say he found the bruising? Well, you are assisted by the chart and the photographs which help to illustrate his evidence. He said that on the outer part of the left shin, that the side of that part of the leg, there were three faint bruises and there was a single bruise on the inner side of the left calf, ... “It was possible to cover the bruises”, he said, “by putting a hand over the leg and a thumb approximating to the bruise on the inner aspects of the left leg and the three forefingers would encompass the bruises on the right aspect. That is, if the right hand is placed beneath the calf and the thumb then comes across on the inside of the calf.” He explained that these bruises could be caused if the left leg were cradled; that is, the back of the left leg were cradled in the hand and pressure was applied to the leg.
He then said that on the right shin he noted seven small circular bruises in a vertical line along the bony prominence which runs down the front of the shin. He did not think the right shin bruises were consistent with finger marks because they were in too straight a line to be accommodated in that way.
...
There were the other bruises. Dr Manock said that near the centre of the scalp, approximately 3 cm in diameter, there was a bruise which appeared to have occurred shortly before death. He said that partially overlapping this bruise was a further bruise of a similar size but of less intensity. These bruises, he said, were consistent with the head striking a flat surface or a flat surface striking the head. Then the witness said that there were two oval bruises, each 2 cm by 1 cm, on either side of the midline where the neck muscles are attached at the back of the head...
...
Ladies and gentlemen, you know that Dr Manock was asked about a particular factual situation, a particular set of circumstances was put to him...
‘Q.The external injuries that you did observe, given together with your cause of death being fresh water drowning, I want you to assume a factual situation. If Miss Cheney was in the bath and the bath was some half to three quarters full, if her head was pushed down under the water level, her left leg gripped underneath by a right hand, and the leg folded over to immobilise her, would that cause drowning.
A.Yes.
Q.Does that factual scenario fit with any of your findings in terms of injuries and bruising.
A.Yes, it does.
Q.How does it.’
And he was then invited to go over to the bath and explain. He said:
‘If the person is sitting at the plug end of the bath and an arm is put underneath both legs to grip the left calf, either by simply lifting or lifting the leg and pushing the head, then the head would slide under the water. At this time the edge of the bath could cause bruising to the back of the neck, or the muscles attached to the base of the skill. If the movement is then continued, and the legs are folded over entirely, this would have the effect of trapping the arms by the sides of the bath and the top of the head would then be against the top of the bath and that would give a flat surface that could cause the bruising to the top of the head. The left leg has been gripped, however the right leg is merely encompassed by the arc of the arm and can move. If it thrashes around, it will bang itself against the edge of the bath and may produce bruising along the border.
Q. They are the seven bruises you observed on the right shin.
A. Yes.’
...
There is one further view expressed by Dr Manock with which all the other pathologists disagreed. He said, in effect, that if a person was rendered unconsciousness [sic] by some trauma before entering the water, for example a knock on the head, then you would find evidence, perhaps externally, but certainly internally when you were doing your post-mortem examination, that there had been such a knock; a knock of that severity to cause unconsciousness. Dr James disagreed, as did the other pathologists. The phrase used by Dr James, I think it was, was that “concussion has no pathology”, meaning if there was concussion or unconsciousness in this way you wouldn’t necessarily see it when you examined the body at a post-mortem examination. So, you have a clear preponderance of views against that proposition by Dr Manock and that is an important matter to taken into account on that issue.
...
Mr Rofe conceded that the forensic pathology in this case cannot provide the answer, but he urged you to consider carefully the prosecution evidence that the bruises on the left leg were consistent with having occurred in the course of a grip. He said the Crown does not have to provide precisely how the drowning took place. He said this particular collection of bruises could not be explained by a fall.
[Emphasis added.]

In the course of the summing up, the Judge discussed in some detail the evidence of Dr James. In most respects, Dr James’ opinions accorded with those of Dr Manock. The Judge described Dr James as a pathologist who had performed over 6,000 post-mortem examinations on matters of relevance to the present proceeding. The following extracts of the summing up are of particular relevance:
It is appropriate to refer at this stage to the views of the other pathologists on the age of the bruises. Obviously, as I have said, it’s not an exact science and only a range of time can be given as an estimate. Dr James said that on the basis of the histological examination one could probably say that these bruises, the ones from which the sections were taken, were less than three hours or so old at the time of death.
...
Dr James was of the same view about the bruises to the left ankle... He said:
‘I have seen photographs of the three bruises on the lateral side of the left ankle. I haven’t seen a photograph of the bruise on the medial side’.
That’s the inner side.
‘But if it was present, as [Dr Manock] suggests, then a grip mark is the obvious explanation. I think the point about discrete bruises is that they can be accommodated by the pulp of the end of the fingers applying pressure and if there is a bruise on the opposite side of the arm or leg or whatever, that is the signature of the opposing thumb. The four bruises that he describes’ –
He is referring to Dr Manock’s evidence –
‘Three on the outside and one on the inside collectively would suggest a grip mark. I think that you can express that as the likeliest explanation until it is shown to be something else’.
He also commented on the bruising to the right leg, and he said the shin is easily bruised because there is almost no soft tissue underneath it. He said:
‘It’s very easily bruised by bumping into things. Often people don’t even recall how they did it. The row of seven bruises down the front of the right shin could represent grip marks from individual fingers. If the bruises on the left ankle are from grip marks, then bruises of the same age on the right shin may have well have the same explanation. I can’t say they are grip marks, but certainly that’s a logical assessment of their causation’.
...
So, ladies and gentlemen, you have different views expressed by the pathologists about the question as to whether these could be grip marks. Perhaps Dr James goes further than the other pathologists in saying this was the likeliest explanation. I think the other pathologists really say this is a possible cause. The bruises were consistent with having been caused by a grip mark, but particularly the defence pathologists say there are difficulties about this...
[Emphasis added.]
The Judge also made detailed reference to evidence given by the defence medical experts, including Professors Cordner and Ansford. The Judge discussed and contrasted the differing opinions on the relevant topics. In particular, the Judge pointed out that it was only Dr Manock who was of the opinion that, in the event of unconsciousness, there would be a mark on the brain.
The Verdict
On 23 August 1995, the applicant was convicted by jury verdict of the crime of murder.
Section 353A – Construction
In the absence of a conferring statute, there is no jurisdiction to hear an appeal from a criminal conviction on Information. Section 352 of the Criminal Law Consolidation Act confers jurisdiction on this Court to hear one such appeal. Section 352(1)(a)(i) provides for an appeal as of right on a question of law. Section 352(1)(a)(ii) provides for an appeal on any other ground with permission. Section 352 also imposes a requirement and confers jurisdiction to hear applications for permission and section 48 of the Supreme Court Act 1935 (SA) addresses the manner in which applications for permission are to be heard.
Until recently, this Court had no jurisdiction to hear a second or subsequent appeal from a conviction on Information.[11] Section 353A of the Criminal Law Consolidation Act was enacted, with operation on 5 May 2013, by the Statutes Amendment (Appeals) Act 2013 (SA) in order to redress this position. We are not aware of an equivalent provision in any other Australian jurisdiction.
[11] R v Keogh (2007) 175 A Crim R 153, [81]; Grierson v The King (1938) 60 CLR 431, 434-7; R v Edwards (No 2) [1931] SASR 376, 378; Burrell v The Queen (2008) 238 CLR 218, [25].
It is convenient at this point to set out the relevant parts of the Criminal Law Consolidation Act. Section 352(1) relevantly provides as follows:
Appeals lie to the Full Court as follows:
(a)if a person is convicted on information—
(i)    the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)     the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
...
Sections 353(1) and (2) provide as follows:
(1)The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; 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.
(2)Subject to the special provisions of this Act, the Full Court shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
Section 353A provides as follows:
(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.
Section 353 regulates how a first appeal, the jurisdiction for which is conferred by section 352, is to be determined in ordinary cases. There are a number of bases on which such an appeal might be allowed, one of which is that there was a miscarriage of justice.
Section 353A both confers jurisdiction, analogous to section 352(1), and addresses the disposition of a second or subsequent appeal[12] for which permission has been granted, analogous to section 353.[13]
[12] In these reasons we will refer to second or subsequent appeals collectively as “a second appeal”.
[13] See R v Keogh [2014] SASCFC 20, [29]-[31].
The Full Court may hear a second appeal if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. Accordingly, the requirements in section 353A(1) are pre-conditions to the conferral of jurisdiction.
However, even if the Full Court were to be satisfied that its jurisdiction has been invoked, that is, that the section 353A(1) requirements or pre-conditions to jurisdiction have been satisfied, it does not follow that the Full Court must hear a second appeal; it remains for the Court to grant permission under section 353A(2).
Section 353A gives rise to a number of issues of construction. In considering these issues, the Court has been assisted by the extensive written and oral submissions of the parties. In addition, and with the consent of the parties, the Court has had regard to submissions put by the applicant, the Director of Public Prosecutions and the Solicitor-General, intervening on this point, during a renewed application for permission for a second appeal in Drummond,[14] which has not yet been determined. All of these submissions as to the proper construction and application of section 353A were detailed, comprehensive and, ultimately, helpful.
[14] R v Drummond SCCRM-13-236 (Gray, Peek and Blue JJ).
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.
Conventionally, the focus of a permission application has been on the grounds of appeal sought to be raised by an applicant. Where the appeal is a first appeal as provided for by section 353 and, ipso facto, within jurisdiction, the permission court will have no interest other than in the grounds of appeal. The test for whether or not permission to appeal should be granted is commonly expressed as being whether or not a particular ground of appeal is reasonably arguable, as stated by Doyle CJ in Parenzee:[15]
The long standing practice of the CCA is to grant permission to appeal against conviction if the proposed ground of appeal is reasonably arguable. Permission to appeal is usually refused if the ground is not reasonably arguable, or is found to lack any substance, or to have no reasonable prospect of success. Once again, each of these formulations is only a slightly different way of identifying the central issue of whether the proposed ground of appeal has a sufficient prospect of success to warrant the grant of permission to appeal. In other than exceptional cases permission to appeal should not be granted to enable an appellant to pursue grounds of appeal that have no prospect of success.
[15] R v Parenzee (2007) 101 SASR 456, [22].
The only available ground of appeal pursuant to section 353A is that there was a substantial miscarriage of justice. The Court hearing a permission application must, at least, ask whether this ground is reasonably arguable. However, it is to be remembered that the permission process is a means by which the Full Court is able to manage its workload with a view, inter alia, to avoiding a full hearing of plainly unmeritorious appeals.
Unlike with respect to sections 352 and 353, an applicant for permission under section 353A(2) must do more than simply show that the single available ground of appeal – that there was a substantial miscarriage of justice – is reasonably arguable. An applicant will also, ultimately, need to establish to the Full Court’s satisfaction that it has jurisdiction to hear the appeal. Even if the permission court is satisfied that the single available ground of appeal is reasonably arguable, it would make no sense to have the Full Court conduct the appeal with a view to determining its merits if the case is one where the existence of the necessary jurisdictional fact is not reasonably arguable.
Section 353A(2) is mandatory. There can be no appeal on the merits without permission first being granted. It is a matter for this Court as to how it organises its business, including by making use of the permission filter. The longstanding practice of the Court of Criminal Appeal has been to consider only the grounds of appeal at the permission stage. However, it does not follow that this practice should be continued with respect to the very different appeal process envisaged by section 353A.
Leaving aside for the moment the question of whether a permission hearing pursuant to section 353A(2) can be conducted by a single Judge, it makes practical sense for the permission filter to embrace both the jurisdictional fact and the single ground of appeal on a reasonably arguable basis. It may be that the Court hearing the permission application can form a clear view that one or more elements of the jurisdictional fact cannot be made out. In such a case permission can be refused at an early stage. In cases such as the present, the Court determining permission will not be able to do so without receiving all evidence relied on by the applicant, at least de bene esse, and without hearing full argument on both the permission question and the merits of the appeal itself.
It may often be the case that once the permission court were to be satisfied that the existence of the jurisdictional fact is reasonably arguable, permission would follow without any need for the further consideration of whether it is reasonably arguable that there has been a substantial miscarriage of justice. The finding, should it be made, that it is reasonably arguable that there is fresh and compelling evidence that should in the interests of justice be considered on an appeal is likely to foreclose or at least incorporate the question of whether it is reasonably arguable that there has been a substantial miscarriage of justice. However, this will not always be so. For example, we can conceive of a situation where permission was granted for a second appeal but after a full hearing of the merits, and while the Court was satisfied that the jurisdictional fact had been made out, it did not think that there had been a substantial miscarriage of justice and, therefore, dismissed the appeal. If a subsequent appeal were to be brought on exactly the same evidentiary basis, while jurisdiction would again be established, permission would likely be refused because it could not now be reasonably arguable that there was a substantial miscarriage of justice.
The jurisdiction to hear an application for permission, implicitly conferred by section 353A(2) of the Criminal Law Consolidation Act, is regulated by section 48 of the Supreme Court Act. It is unnecessary, on this application, to decide whether an application for permission under section 353A(2) can only be heard by the Full Court rather than a single Judge on its behalf, contrary to the position that applies with respect to ordinary appeals under section 352. However, as this is the first Full Court to publish reasons on section 353A we consider it appropriate to indicate a view. In our view, the position in this respect is unchanged.
Section 48 of the Supreme Court Act relevantly provides:
(1)Subject to any express enactment, and to the rules of court, the jurisdiction vested in, or exercisable by the court, shall be exercisable either by the Full Court or by a single Judge sitting in court.
...
(3)Subject to subsection (4) and to the rules of court, where any Act provides that one or more of the following powers relating to appeals are exercisable by the Full Court, the power may, instead, be exercised by any Judge of the Supreme Court in the same manner as the Full Court and subject to the same provisions:
(a) the power to give permission to appeal;
(b) the power to extend the time within which notice of appeal, or of an application for permission to appeal, may be given;
...
(4)If a Judge refuses an application by an appellant to exercise any power of a kind referred to in subsection (3) in his or her favour, the appellant is entitled to have the application determined by the Full Court.
The Supreme Court Criminal Rules 2014 apply to proceedings commenced after 1 October 2014 and relevantly provide:
119—Hearing by single Judge
(1)All applications—
(a) for permission to appeal;
(b) for an extension of time in which to appeal;
…
will in the first instance be heard and determined by a single Judge.
...
(3)If the Judge considers that an application or part of an application should be referred to the Full Court, the Judge may, without otherwise disposing of the application, make an order accordingly, in which case the application or that part of the application will be referred to the Full Court in accordance with rule 120.
…
120—Referral of application to Full Court
(1)If a Judge refuses an application by an applicant in whole or in part under rule 119, the applicant may request that the application or the part of the application that was refused be referred to the Full Court.
...
(3)If a Judge orders that the whole or part of an application or part be referred to the Full Court under rule 119(3), it will be dealt with in accordance with this rule.
…

It was common ground that, at the time of this appeal, the Professor was medically unfit to give evidence and, in particular, to be cross-examined about the written opinions he had expressed. As a consequence, the Director, on the hearing of the appeal, objected to the reception of Professor Vernon-Roberts’ report. We have admitted the report, for reasons separately delivered,[68] in exercise of the discretion available under sections 45A and 45B of the Evidence Act. The applicant also relied on section 34KA of the Evidence Act. Having regard to our determination that the report is admissible pursuant to sections 45A and 45B, it has been unnecessary to give consideration to this issue.
[68] R v Keogh (No 3) [2014] SASCFC 137.
We accept that Professor Vernon-Roberts’ report should be considered, with the caveat that there are areas in which he has acknowledged he cannot draw conclusions due to his lack of experience in forensic pathology. Professor Vernon-Roberts was qualified to express opinions about the nature of bruising and the necessity to conduct a more detailed examination of the tissues of the so-called bruising on the legs, head and neck of Ms Cheney. He was qualified to express opinions relating to cardiac failure as a possible cause of death, or as a contributor to a collapse. He was qualified to discuss the inadequate sampling of the legs and heart in determining the cause of Ms Cheney’s death. Professor Vernon-Roberts conclusion that haemosiderin may have been present in the sample taken from the medial side of Ms Cheney’s left leg, together with his conclusion that the presence of haemosiderin in that sample is evidence that the tissue had been bruised at least 24 hours before death, and more likely some days before, was within his area of expertise. In our view, these are all matters on which Professor Vernon-Roberts had sufficient expertise to comment.
Professor Vernon-Roberts’ lack of expertise as a forensic pathologist does not render his opinions in respect of those matters inadmissible but does, ultimately, go to the weight to be attached to the relevant opinions. As observed above, his opinions have now been the subject of further consideration by forensic pathologists who substantially agree with Professor Vernon-Roberts’ observations.
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.
Having regard to all of the above material, a summary of our essential conclusions is as follows.
-At an early stage of the autopsy, Dr Manock excluded the possibility that Ms Cheney had been unconscious when her head was submerged as he saw no mark or sign on the brain. However, Dr Manock had no proper basis to hold the view about a mark or sign on the brain being a necessary indicator of a loss of consciousness – he was wrong to do so.
-Dr Manock’s misconception concerning the significance of the absence of a bruise or mark on the brain led him to inappropriately conclude that Ms Cheney could not have died from accidental drowning and, in fact, died as a result of an assisted drowning.
-Dr Manock reached the conclusion that Ms Cheney died as a result of fresh water drowning. As a contributing factor to this conclusion, he incorrectly relied on the presence of oedema in the lungs and the presence of differential staining.
-Dr Manock considered that bruising to Ms Cheney’s body and, in particular, to her head, back of the neck and both legs, had been sustained proximate to the time of death. He speculated as to the mechanism of death. He opined that the assailant had come upon Ms Cheney while she was in the bath, had placed a right hand and arm underneath her legs, gripping the left ankle with a right hand. The assailant then lifted both legs, forcing Ms Cheney’s head to be submerged. According to Dr Manock, in that process, bruising was caused to Ms Cheney’s legs, neck and head. According to Dr Manock, bruising to the lateral side and one bruise to the medial side of the left leg was caused by the assailant’s right hand when it gripped Ms Cheney’s ankle.
-The autopsy conducted by Dr Manock was inadequate in material respects.
-The extent of the sampling of the areas of bruising undertaken was inadequate for a forensic pathologist who was considering the possibility of homicide.
-Dr Manock examined microscopically a tissue slide taken from the suggested bruise on the medial aspect of the left leg. He recognised that that examination did not show evidence of a bruise. Dr Manock had a further tissue slide taken to allow for a second microscopic examination. This too failed to show evidence of a bruise.
-Dr Manock, in giving evidence about the lack of white cell infiltration in the context of his ageing of the medial “bruise”, impliedly asserted to the jury that his microscopic examination positively supported the existence of a bruise.
-Dr Manock, when instructing the Director at the time of the trial and when giving evidence at trial, did not disclose the results of these microscopic examinations. He offered an unsatisfactory explanation that it had not come up in conversation with the prosecutor.
-Dr Manock should have disclosed the results of his microscopic examinations to the Director and to the Court. This was particularly important as there was no other evidence apart from the autopsy photographs taken that might provide support for his suggested visual observation of a bruise.
-Dr Manock claimed before the jury to see a mark or to identify a bruise on one of the autopsy photographs. Dr James, subsequent to trial, said that he could not see a bruise in any of the photographs. Professor Pounder, who had particular experience in the use of Polilight, could not see any bruise in any photograph, including the photographs taken with Polilight.
-Around ten years after the trial, Dr Manock, when giving evidence before the Medical Board, claimed for the first time that when he cut into the area of the bruise he saw extravasated red blood cells. The assertion is not reliable.
-Subsequent to trial, Dr Manock recanted on his evidence about the ageing of bruises, his view as to the mechanism of murder and his view about the significance of the absence of a sign or mark on the brain.
-In light of Dr Manock’s recantations, the evidence he gave at trial, evidence favourable to the prosecution, may be understood as being misleading on important issues. This is of particular significance as, at trial, Dr Manock was presented as the State’s senior forensic pathologist with vast experience, more than any other expert witness called at trial.
-The inadequacies of Dr Manock’s autopsy had the consequence that important investigations were not conducted and, as a result, other possible causes of death were not properly explored.
-In 2014, further testing of a slide referable to the medial mark revealed the presence of haemosiderin, from which it is concluded that Ms Cheney suffered trauma, be it a bruise or a lesion, at the site of the medial mark at least 24 hours before death.
-The following extract from the opinion of Professor Vernon-Roberts is of particular relevance:
My preference as an hypothesis for the sequence of events leading to Ms Cheney’s death is that she lost consciousness after having sustained an initial fall in blood pressure due to blockage of a small artery in her heart or during a faint. While falling backwards[70] from an erect position she struck her head on the bath before sliding under the water and drowning while unconscious.
[70] It is to be noted that, when expressing this opinion in 2004, Professor Vernon-Roberts did not have available to him Professor Pounder’s views and reasoning to the effect that the observed neck bruising was most likely artefactual, that is, a product of the autopsy itself, thus leaving open the possibility that, on Professor Vernon-Roberts preferred hypothesis, Ms Cheney might have fallen forward.
I believe that there is a lack of essential pathological findings to sustain the hypothesis that Ms Cheney drowned as a result of a person gripping her lower legs forcibly to apply traction leading to immersion of her face.
[Our emphasis.]
-The following extract from the opinion of Professor Pounder is, in our view, compelling:
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.]
-The following extract from the opinion of Dr Lynch is also compelling:
… However point of critical agreement, in my view, is that Professor Pounder opined that there was no evidence to suggest the death was other than a presumed drowning in the bath following a fall with head injury, rendering the deceased unconscious and that there was nothing in the medical evidence to raise the suggestion that the death was homicidal or to discount the death being accidental.
[Emphasis added.]
-The evidence before this Court demonstrates that the trial Court and the jury were materially misled in respect of important matters. Material aspects of the evidence of Dr Manock were incorrect and should not have been led. Dr Manock, in our view, could not, other than by way of speculation, have advanced his opinion as to the grip to the ankle being the mechanism of death. Dr Manock should have disclosed to the jury that there was no histological evidence to support the existence of a bruise on the medial aspect of the left leg. Dr Manock should have informed the jury that unconsciousness could not be excluded.
-The evidence before this Court demonstrates that the evidence of Dr James could not have been led as it was. Dr James should have revealed to the jury that he saw no evidence to support the existence of a bruise to the lower medial aspect of the left leg.
-If the evidence before this Court were before the trial Court, the jury would have considered materially different evidence. Opinions such as those expressed by Professors Vernon-Roberts and Pounder and Dr Lynch would have been significant in the jury’s consideration of whether the prosecution had excluded a reasonable hypothesis consistent with innocence.
-In the above circumstances, the applicant was denied a fair trial and that denial amounts to a substantial miscarriage of justice. A conviction was not inevitable.
In our view, it is also relevant to reflect on how the landscape of the trial conducted in 1994 would have changed, had the parties and the court been aware of the evidence now available to this Court.
A review of the prosecutor’s opening and final addresses demonstrates the substantial reliance placed on Dr Manock’s observations and opinions as circumstantial evidence probative of guilt. Reliance was also placed on Dr James in his support of Dr Manock in this respect.
The prosecutor could not have presented the case in the way that he did. For example, he could not have led evidence from Dr Manock of his opinion that Ms Cheney was necessarily conscious when her head was submerged underwater. It may be expected that evidence would have been led from Dr Manock that there was no evidence to support his suggested macroscopic observation of a bruise to the medial aspect of the lower left leg. It may also be expected that evidence would have been led from Dr Manock that the histology did not support the presence of a bruise.
The prosecution would, in all probability, have led evidence from Dr James that, on examining the autopsy photographs, he could see no bruise to the medial aspect of the left leg. The prosecutor would have been confronted by the evidence of all other experts that they could not see any evidence of such a bruise in the photographs. The prosecutor would have also been confronted with the evidence of Professor Pounder that Polilight examination failed to reveal any evidence of such a bruise. It may have been expected that the prosecutor would have led evidence that the histology from the medial aspect of the left leg disclosed the presence of haemosiderin and that a bruise or lesion at that location had been sustained well prior to death and had no part to play in the death.
The prosecution would have faced the difficulty that Dr Manock’s opinion of the left leg being gripped was no more than mere speculation and not probative. Further, Dr Manock’s suggested mechanism of murder would have been clearly understood to be no more than unsupported speculation.
The prosecution would have been confronted with a substantial body of expert material pointing to significant inadequacies in the autopsy process conducted by Dr Manock as earlier discussed in these reasons.
The position that would have confronted the prosecution, having regard to the agreement of Dr Lynch with the views of Professor Pounder, was that there was nothing in the medical evidence to support the suggestion that the death was homicidal, or to discount the death being accidental.
It is self evident that defence counsel would have faced a materially different, if not fundamentally different, prosecution case. Different issues would have arisen for consideration. Different forensic choices would have been available. The reliability, if not the credibility, of Dr Manock would have been open to challenge. The questions of proof beyond reasonable doubt and the exclusion of a reasonable hypothesis consistent with innocence would have attracted different considerations.
The trial Judge could not have summed up to the jury in the way that he did. It would not have been open to the Judge to suggest that many of Dr Manock’s observations and opinions, as they stood at the time of the trial, formed part of the circumstantial evidence of the case that could be relied on by the prosecution to establish the guilt of the applicant. Each of these matters that would have confronted the prosecution would have fundamentally changed the nature of the summing up.
In our opinion, the evidence, as identified in these reasons, demonstrates that the trial process was fundamentally flawed. A number of highly significant observations and opinions of Dr Manock materially misled the prosecution, the defence, the trial Judge and the jury. In these circumstances, there has been a substantial miscarriage of justice.
The applicant’s argument before this Court and our consideration of this appeal has focussed primarily on the forensic pathology evidence. The task of the jury involved consideration of all of the circumstances of the case, including the fact that a young and apparently healthy woman died suddenly while taking a bath in circumstances where the applicant may have had a motive to murder her and had the opportunity to do so on the night of her death. Nevertheless, the forensic pathology evidence was a central component of the prosecution case before the jury.

We do not accept the submission made by the applicant’s counsel that there should be a direction of acquittal. To the contrary, we consider that the non-expert circumstantial evidence, when considered together with the forensic pathology evidence as it is now understood, is such that it would remain open to a properly directed jury to convict. However, we expressly recognise that a properly directed jury may consider that that evidence would not be sufficient to establish guilt beyond reasonable doubt. These are truly jury questions and this judgment should not be taken to express a view on whether the applicant in fact committed the crime with which he was charged. For our part, our review of the material does not establish a case for an acquittal following this appeal. Accordingly, we would set aside the conviction and order a retrial. It is a matter for the Director to determine how the matter should proceed.
We grant permission to appeal and allow the appeal. We set aside the conviction of Henry Vincent Keogh for the crime of murder. We direct that Henry Vincent Keogh be re-tried.