R v Keogh (No 3)

[2014] SASCFC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KEOGH (No 3)

[2014] SASCFC 137

Judgment of The Court of Criminal Appeal

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

19 December 2014

EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS RELATING TO BUSINESS RECORDS - IN GENERAL

EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS AS TO STATEMENTS IN DOCUMENTS WHERE DIRECT ORAL EVIDENCE ADMISSIBLE - WHERE MAKER OF STATEMENT NOT ATTENDING AS WITNESS

Application to admit an expert report under the evidentiary aid provisions of the Evidence Act 1929 (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 applicant sought permission to appeal against his conviction pursuant to section 353A of the Criminal Law Consolidation Act 1935 (SA) 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. On the hearing of the application, the applicant sought to tender an expert report prepared in 2004 and disclosed to his legal team in late 2013. The author of the report was medically unfit to give evidence. The respondent opposed the tender of the document.

Whether the document is a business record within the meaning of section 45A of the Evidence Act. Whether the document is an apparently genuine document containing statements of fact within the meaning of section 45B. Whether the document is genuine and has significant evidentiary value. Whether it is in the interests of justice to admit the document.

Held per the Court (admitting the document into evidence):

1. The document is a business record within the meaning of section 45A. The document is a record of a government body or instrumentality prepared in the course of the regular business of the instrumentality.

2. The document is an apparently genuine document containing statements of fact, including the facts of opinions held by the author, within the meaning of section 45B.

3.  The document is a genuine document with significant evidentiary value. 

4.  The author’s qualifications and experience were sufficient to enable him to provide expert opinions on the matters addressed in his report.  The author appropriately qualified his opinions where the matters on which he was asked to opine fell outside of his expertise. 

5.  The prejudice arising from the respondent’s inability…