R v Keogh (No 2)

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

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

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

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