R v Keogh

This matter concerned an application for permission to appeal by the applicant, R v Keogh, before Nicholson J. The central dispute revolved around whether the applicant should be granted permission to appeal their conviction, with the applicant asserting a substantial miscarriage of justice had occurred.

The primary legal issue before the court was the meaning and application of the phrase "substantial miscarriage of justice" as contemplated by section 353A(3) of the relevant legislation. This also involved considering the applicant's assertion that certain evidence was "fresh" and "compelling" and should be considered on appeal under section 353A(1), and whether these matters were appropriate for determination at the permission stage.

Nicholson J noted that the test for granting permission to appeal is whether the proposed ground of appeal has a sufficient prospect of success, typically assessed by whether it is reasonably arguable. While the court expressed doubts about considering the "fresh and compelling" evidence at the permission stage, it considered the ground of appeal alleging a substantial miscarriage of justice to be a proper subject for this stage. The court referred to established authorities, including *Davies & Cody v R*, which explained that a miscarriage of justice occurs not only when there is affirmative reason to believe the appellant is innocent, but also when it appears unjust or unsafe to allow a verdict to stand due to a failure in the trial process or a substantial possibility that the jury was mistaken or misled.