R v Van Beelen - [2016] SASCFC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application for Permission from the Full Court for a Second or Subsequent Appeal Against Conviction)
R v VAN BEELEN
[2016] SASCFC 71
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
13 July 2016
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 - PROCEDURE - POWER TO BRING APPEAL - GENERALLY
Application for permission to appeal against conviction in 1973 pursuant to s 353A of the Criminal Law Consolidation Act 1935 (SA) (the Act). Applicant convicted for the murder of Deborah Joan Leach at Taperoo on 15 July 1971. An appeal against conviction pursuant to s 352 of the Act was dismissed in 1973. Section 353A allows the Full Court to hear a second or subsequent appeal against conviction if the Court is satisfied there is “fresh and compelling evidence that should, in the interests of justice, be considered on an appeal”.
The applicant argues that fresh and compelling evidence which became available after the trial shows that the expert opinion given by forensic pathologist, Dr Manock, regarding time of death – a key issue at trial – was wrong.
Dr Manock estimated time of death based on stomach content analysis. Dr Manock expressed the opinion that death occurred between three and four hours after the deceased’s last meal. When asked to assume that the deceased’s last meal commenced at 12.30pm on 15 July 1971 his evidence was that death would most likely have occurred between 3.30pm and 4.30pm that day. Dr Manock excluded the possibility that death occurred after 4.30pm. Evidence was led by the defence from Dr Pocock, a forensic pathologist, that estimates of time of death based on stomach contents were unreliable.
There was other evidence at trial going to prove time of death. A neighbour saw the deceased on her way to the beach at approximately 4pm. The deceased’s mother gave evidence that when she arrived home at about 4.40pm her daughter was not home. She said that her daughter was in the habit of taking her dog to the beach after school but “was always home when I got home normally”. After 10 minutes she decided her daughter should be home and so went to the beach. She collected the dog but saw no sign of her daughter.
On appeal the applicant called Professor Horowitz, a Professor of Medicine and Endocrinologist who gave evidence that estimates of time of death based on stomach contents are unreliable. His opinion was based on research of gastric emptying times undertaken subsequent to the applicant’s trial. The research demonstrates that there is a substantial variation between the rates of gastric emptying in individuals.
Whether the evidence is “fresh and compelling” and should, “in the interests of justice, be considered on an appeal” as those expressions are defined: s 353A(1). Whether there was a substantial miscarriage of justice: s 353A(3).
Discussion of R v Keogh (No 2) (2014) 121 SASR 307 as to the meaning of “substantial” and “substantial miscarriage of justice”. Discussion of the significance of the requirement to obtain permission to appeal. Discussion of the Court’s task in determining whether there has been a substantial miscarriage of justice pursuant to s 353A(3).
Held (per Vanstone and Kelly JJ): Permission to appeal is refused. Jurisdiction to hear the appeal has not been established under s 353A(1).
The evidence of Professor Horowitz, though fresh, is not compelling. The evidence, though reliable, is not substantial. To be described as “substantial” the thing in question must reach both a qualitative and quantitative threshold. There is more to the word “substantial” than being of sufficient importance or being of substance. It must subsist or stand by itself.
Professor Horowitz’s evidence confirms the correctness of evidence given by Dr Pocock at trial. The fact that new experiments add to the body of knowledge tending to the same conclusion is not such as to render the evidence substantial within the meaning of s 353A(1).
The fresh evidence is not highly probative in the context of the issues in dispute at the trial. First, there is no relevant difference between the opinion expressed by Dr Pocock at trial and Dr Horowitz on appeal that stomach contents were not a reliable basis on which to estimate time of death. That Professor Horowitz had available to him the learning accumulated since 1973 is not of sufficient weight to render the evidence highly probative. Secondly, the telling evidence in relation to the time within which death must have occurred came, not from Dr Manock or Dr Pocock, but from the civilian witnesses.
For similar reasons it is not shown that the evidence “should, in the interests of justice, be considered on an appeal”.
Even if jurisdiction had been established, it was not shown that “a substantial miscarriage of justice” occurred.
Held (per Kourakis CJ dissenting): Permission to appeal should be granted and the appeal allowed.
The evidence is fresh and compelling. The evidence given by Professor Horowitz is highly probative on the issue of whether the deceased died no more than four hours after she commenced eating her lunch because it shows that the opinion of Dr Manock to that effect was plainly wrong and without scientific foundation. Dr Manock proceeded on an assumption that there was a ‘normal’ time for the emptying of the stomach. It is that assumption which has been falsified by the subsequent research described by Professor Horowitz.
Evidence is substantial if it materially weakens the prosecution case or significantly shifts the balance of the trial evidence. The possibility that, against the Judge’s observation, the jury might not have accepted Dr Manock’s evidence because of the doubt cast over it by Dr Pocock’s evidence does not make the fresh evidence any less substantial because it cannot be known how the jury reasoned. The fresh evidence significantly shifts the balance of the evidence because it markedly extends the period over which someone other than the applicant may have had an opportunity to commit the offence.
The evidence should, in the interests of justice, be considered on appeal. Dr Manock’s failure to take a body temperature is significant in deciding whether or not to receive and consider the fresh evidence. There is no discretionary reason not to consider the objectively verifiable scientific advances which falsify Dr Manock’s opinion.
There is a significant possibility that a properly directed jury, acting reasonably, would have acquitted the applicant on a trial in which the fresh evidence would be adduced.
Therefore, a substantial miscarriage of justice has occurred.
Criminal Law Consolidation Act 1935 (SA) s 352, s 353, s 353A, s 359(d), s 369 , referred to.
Hollington v F Hewthorn Co Ltd [1943] KB 587, applied.
Perry v The Queen (1982) 150 CLR 580, discussed.
Baini v The Queen (2012) 246 CLR 469; Burrell v The Queen (2008) 238 CLR 218; Doggett v The Queen (2001) 208 CLR 343; Domican v The Queen (1992) 173 CLR 555; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Gallagher v The Queen (1986) 160 CLR 392; In the Matter of a Petition by Frits Van Beelen (1974) 9 SASR 163; Lawless v The Queen (1979) 142 CLR 659; Mickelberg v The Queen (1989) 167 CLR 259; Prasad v The Queen (1994) 68 ALJR 194; Ratten v The Queen (1974) 131 CLR 510; R v Clune (No 2) (1995) 82 A Crim R 247; R v Keogh (No 2) (2014) 121 SASR 307; R v Lawford (1993) 61 SASR 542; R v Parenzee (2007) 101 SASR 456; R v Van Beelen (1973) 4 SASR 353; R v Van Beelen (No 3) (1973) 7 SASR 125; Van Beelen v The Queen (1973) 73 ALJR 666; Santos v The Queen (1987) 75 ALR 161, considered.

R v VAN BEELEN
[2016] SASCFC 71
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: Mr Frits Van Beelen, the applicant, seeks permission to appeal against his conviction for the murder of Deborah Joan Leach, a 15 year old girl, at Taperoo Beach on the afternoon of 15 July 1971. The applicant was convicted on 12 July 1973 on a retrial following a successful appeal against the conviction returned on his first trial in 1972. The testimony the applicant gave on his first trial was received as evidence on the retrial.
An appeal against the second conviction was dismissed by the Full Court of this Court on 15 October 1973.[1] Applications for leave to appeal to the High Court and to the Privy Council were refused.[2] The applicant’s conviction was again affirmed on 12 September 1974 on the hearing of a petition of mercy referred to the Full Court pursuant to s 369 of the Criminal Law Consolidation Act 1935-1974 (SA) (the CLCA).[3]
[1] R v Van Beelen (No 3) (1973) 7 SASR 125.
[2] (1973) 73 ALJR 666.
[3] In the Matter of a Petition by Frits Van Beelen (1974) 9 SASR 163.
This application is brought pursuant to s 353A of the CLCA. In order to bring a second or subsequent appeal against conviction, an applicant must satisfy the Court that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. The only ground on which any fresh evidence has been received on the appeal is ground 2:
The opinion Dr Manock provided as to time of death, clearly accepted by the jury, was wrong.
Dr Manock, the then Director of Forensic Pathology at the Institute of Medical and Veterinary Science, performed the autopsy on the body of Deborah and gave evidence for the Crown at trial.
The opinion of Dr Manock impugned by ground 2 was that Deborah died between three and four hours after she started eating her lunch at school on 15 July 1971. Deborah’s school friend testified that Deborah ate her lunch between 12.15 pm and 12.30 pm. In cross-examination, Dr Manock strongly denied that it was possible that Deborah died any later than four hours after she ate her lunch.
Summary of prosecution and defence cases
The significance of Dr Manock’s opinion can be appreciated from just a brief summary of the other evidence adduced on the applicant’s trial.
A neighbour, JH, saw Deborah at about 4.00 pm on 15 July walking across a paddock towards Taperoo Beach with her dog. Deborah’s mother, Mrs Leach, found the dog running around alone on the beach at about 4.50 pm. It is very likely that Deborah had been murdered by that time. No one deposed to seeing her alive after about 4.00 pm, and when her body was found in the early hours of 16 July, it was buried under seaweed close to where her dog had been retrieved from the beach.
In his testimony in the first trial the applicant claimed that he was on the Taperoo Beach foreshore during the afternoon of 15 July until 4.25 pm when he left to drive into the city to pick up his wife from her place of work at the Franklin Street General Post Office. The applicant testified that he did not see Deborah, or any other person, on Taperoo Beach whilst he was there. The applicant’s wife supported his evidence that he picked her up at about five o’clock.
Recreational fishermen who were on Taperoo Beach, or in a boat at sea on that afternoon, saw the applicant’s car parked in a car park between the Taperoo Beach kiosk and the lifesaver’s shed and it was still there when they left at 4.20 pm. They saw several other people on the beach but they are unlikely to have been connected to the applicant or to Deborah’s death.
Apart from Gwyneth’s testimony that no-one was on the beach when she collected Deborah’s dog, the evidence did not exclude the presence of other persons on the beach between 4.30 pm and 4.50 pm.
In addition to his admitted presence at Taperoo Beach, the applicant was implicated in Deborah’s murder by forensic evidence that fabric fibres found on Deborah’s singlet and the applicant’s jumper corresponded.
It can be seen that, in the context of the prosecution case at trial, Dr Manock’s opinion was critically important because, of itself, it excluded the possibility that Deborah was killed by another person after the applicant had left Taperoo Beach. Dr Manock’s opinion that death could not have occurred any later than four hours after Deborah started to eat her lunch, when put together with the testimony of the applicant himself and that of the fishermen, singled the applicant out as the only person with an opportunity to commit the murder. If the jury accepted, as it was entitled to do, the opinion of Dr Manock, it could put to one side the possibility that Deborah was murdered by another unknown person after the applicant had left Taperoo Beach.
Therein lies the importance of the fresh evidence adduced on this application. It incontrovertibly shows that Dr Manock’s opinion that the time of Deborah’s death could not have occurred any more than four hours after she ate lunch was plainly wrong. The unchallenged opinion evidence adduced by the applicant from Professor Horowitz is that scientific research, undertaken in the decades since the applicant’s trial, into the period of time over which food is emptied from the stomach shows that Dr Manock’s insistence that no more than four hours elapsed from Deborah starting her lunch to her death was not only wrong but without any scientific foundation at all. If the jury did rely on Dr Manock’s opinion, the verdict of guilty is based on a fallacious factual finding.
Dr Manock’s opinion was contested at trial. Dr Pocock, a forensic pathologist from the Public Health Department of Western Australia, was called in the defence case. He testified that the estimation of the time of death from stomach emptying was necessarily imprecise, and denied that it was possible to put an outer limit on the time of death of four hours after Deborah’s lunch. Dr Pocock’s opinion was supported by many forensic texts. In cross‑examination, Dr Manock explained those texts, and Dr Pocock’s opinion, away by accepting that it was not possible to be precise within the range of one hour which he had given, but he nonetheless maintained that the outside limits of his range were certain. It was therefore presented to the jury as a contested question of expert fact when, on the scientific research now available, Dr Manock’s opinion could never be proffered as expert evidence. Indeed, on the research now available, it would necessarily be an agreed fact that Deborah’s death could have occurred well after 4.50 pm which was when Mrs Leach found Deborah’s dog, alone, on the beach.
It is trite, but nonetheless important, to observe that the jury was entitled to accept the evidence of either Dr Manock or Dr Pocock or to not rely on either of them. The jury was free to make that choice by reference to the content of their testimony and/or their demeanour. However, the inscrutability of the jury’s verdict means that this Court cannot know how, or in what order, the jury evaluated the evidence. It is clear, however, that the time of death was a major issue at trial. Indeed, the only defence evidence called at trial went to the issue of the timing of Deborah’s death and the applicant’s opportunity to commit the crime.
It is necessary to elaborate on the above outline of the evidence adduced at trial and the fresh evidence on which the applicant relies, before returning to the construction of s 353A of the CLCA and its application to this matter. I foreshadow my conclusions that:
·the evidence of Professor Horowitz is fresh and compelling;
·the evidence should in the interests of justice be considered on an appeal pursuant to s 353A of the CLCA; and
·there has been a substantial miscarriage of justice and the conviction should be quashed and a new trial ordered.
My reasons are ordered as follows:
(a)Trial evidence as to time of death [18]-[41]
(b)Judge’s summing up [42]-[46]
(c)The fresh evidence [47]-[55]
(d)Construction of s 353A of the CLCA [56]-[68]
(e)The evidence is substantial [69]-[72]
(f)Disposition of the application [73]-[78]
Trial evidence as to time of death
Dr Manock testified that he decided to fix the time of death from the state of gastric emptying because of difficulties in fixing it from the change in temperature of Deborah’s body – a topic to which I return below.
Dr Manock testified that his autopsy revealed that the stomach contained four fluid ounces of partly digested food in a homogenous paste. Dr Manock explained that he calculated the time of death on information conveyed to him that Deborah ate lunch between 12.30 pm and 12.45 pm. That information was later shown to be mistaken. As I earlier observed, the evidence showed that Deborah ate her lunch between 12.15 pm and 12.30 pm. For the purposes of his calculations Dr Manock assumed, from information given to him, and from his observations of the stomach contents, that Deborah’s lunchtime meal was half a pint of flavoured milk, an apple pie and a pasty. Dr Manock measured the volume of an equivalent meal put together by him and, by reference to that volume, calculated that 75 per cent of the lunchtime meal ingested by Deborah had been emptied by the time of her death.
On those premises, Dr Manock expressed the following opinion:
AYes, I came to the opinion that the stomach contents were consistent with a time interval of between three and four hours from the last meal, and taking the start of the last meal as 12.30, this would give a time interval during which the death would most likely occur of between 3.30 and 4.30.
QAssuming – and I ask you to assume this only – assuming that the effect of the sworn evidence in the case is that it is probable that the meal commenced at approximately 12.15 and concluded at about 12.30, would that have any, and if so what, significance for your opinion as to the time of death.
AI think this would put the time of death about 15 minutes earlier than I stated originally. I don’t think one can be very precise on these matters.
QYou expressed your opinion as three to four hours after the last meal. I gather from the application of that opinion to the assumed facts that you mean three to four hours after about the start of the last meal.
AYes.
QAnd for that opinion would it matter whether the last meal was commenced at 10 minutes past 12, or 12 minutes past 12, or 18 minutes past 12.
AI don’t think one can be as precise as nailing it down to the odd minute here or there.
QIn any event, your opinion is expressed as a time after the commencement of the last meal.
AYes.
In cross-examination, Dr Manock’s adjustment of the time of death by 15 minutes to account for the earlier time of Deborah’s lunch went largely unnoticed and Dr Manock was challenged on his initial estimate of the time of death being no later than 4.30 pm. On the earlier time for lunch, Dr Manock’s calculations meant that Deborah was attacked and murdered before the fishermen witnesses left the beach.
Be that as it may, in cross-examination Dr Manock gave evidence that his estimation of the gastric emptying time of Deborah’s lunch was based on his reading of medical literature and his experience. Dr Manock refused to accept that any more than four hours had passed from when Deborah started eating her lunch to her death or that her death occurred after 4.30 pm:
QAs I understand your evidence you said that the most likely time of death was between 3.30 and 4.30 but it was impossible to be precise.
AYes.
QDo you exclude the possibility that death could have occurred at 5 o’clock or after.
AYes I think I do.
QWhen you say, “Yes I think I do”, what is the intensity of your thought.
AI think that answer of mine excludes it.
TO HIS HONOUR: You positively exclude as time of death 5 o’clock or later on the assumptions you have expressed. Is that what you mean.
AYes.
XXN:
QWould you exclude a time of death between 20 to 5 and 5 o’clock.
AOn the information given to me when I came to that opinion, then the answer is yes.
QThe information given to you when you came to that opinion is the same information you have got now.
AMaterially yes.
QIn fact you would exclude a time of death between 20 to 5 and 5 o’clock.
MR. JOHNSTON OBJECTS. The witness has not been given any other information, he said what was the information he had received and on that formed certain assumptions. My friend has not asked him to assume any other information of any sort and he has not been given any information.
QOn the assumptions on which you have formed your opinion as to the time of death, do you exclude positively death between 20 to 5 and 5 o’clock.
AYes.
QOn the same information and using the same assumptions would you positively exclude the time period of 4.30 to 20 to 5.
AYes.
QIn other words you are saying the time of death must have been between 3.30 and 4.30 on the assumptions and on the evidence you have available to you.
MR. JOHNSON OBJECTS.
TO HIS HONOUR:
QYou say the time of death on those assumptions could not be later than half past 4.
AYes.
XXN:
QAnd on the evidence you had given to you and the information you had it could not have been before half past 3.
AThat is correct.
QWhat information is it that enables you to exclude the time period of half past 4 and 25 to 5, take that five minute period.
AIt is not what information I have which enables me, it is what information I have not which enables me to extend that period.

Dr Manock was taken to propositions found in various authoritative forensic pathology texts on the issue of the duration of stomach emptying. The propositions put to Dr Manock included the following:
·There is some danger in relying on the amount of stomach contents to estimate time of death in relationship to the last meal.
·Fluids are easily evacuated. More solid substance takes longer. The rate of emptying depends on many factors, for example, it is influenced by the quantity and type of food ingested as well as by emotional factors.
·The rate of stomach emptying is so variable that it cannot be used to give any certain indication of the time of death.
·Elaborate tables have been prepared of the time taken by the stomach to digest certain articles of diet, but these are wholly unreliable. The rate of digestion varies in different persons and according to the functional efficiency of the gastric mucosa.
Dr Manock generally agreed with those propositions, but asserted that the warnings of unreliability and estimates of longer emptying times were limited to those cases in which special circumstances altered the normal rate of emptying. He insisted that the caveats expressed in the texts did not apply to the case at hand because there were no known circumstances, such as grave injury, which were likely to have retarded the rate of stomach emptying. Indeed, Dr Manock went so far as to suggest that, in the ordinary case, an even greater degree of precision than the one hour, between the shortest and longest emptying time he had allowed, was possible:
QYou have narrowed the time down to a one hour period, 3.30 to 4.30.
AYes. There are people who could narrow it down to 15 minutes but I am not quite as clever as that.
The feigned humility of that answer was calculated to give the jury confidence in the significantly greater range of one hour Dr Manock had allowed. The answer may well have given the jury the confidence to accept Dr Manock’s opinion as to the four hour outer time limit between the commencement of the lunchtime meal and the time of death. However, it is now known that Dr Manock’s evidence that some pathologists could estimate the time of death from stomach emptying to within 15 minutes was even more baseless than his own estimate.
Dr Manock was asked to explain to the jury where he got ‘this time of three to four hours from for this particular meal’. Dr Manock answered:
As I have said, from my experience and from my reading and from the observations I made at the autopsy and the absence of any information to suggest that the emptying time of the stomach in this case would be anything other than normal.
Dr Manock was asked whether the emptying time for the meal could more have been as low as two hours. He answered, ‘Not under the circumstances as I know them’. He explained that those circumstances were the absence of any indication of abnormality. Dr Manock then proceeded to disagree with the propositions that it would neither be abnormal for a meal of the sort consumed by Deborah to be emptied within two hours or for the emptying to take five hours.
It can be seen from the evidence that Dr Manock proceeded on an assumption that there was a ‘normal’ time for the emptying of the stomach. It is that assumption which has been falsified by the subsequent research described by Professor Horowitz.
There is a particularly curious aspect of Dr Manock’s evidence which assumes some importance in the light of the subsequent research. Dr Manock was questioned about how he came to his opinion when the meal had not been completely emptied:
QIsn’t it a fact that for this meal you assumed that the normal rate for the emptying of the stomach would be between three hours and four hours.
ANo, for this meal I considered that the amount of food remaining in the stomach was consistent with a time interval of three to four hours between the last meal and death.
QIf it is consistent with three to four hours between those times, what length of time would it have taken for this meal to completely disappear from this girl’s stomach.
AProbably only another ten minutes or so.
QAren’t you then saying that the normal rate for the emptying of the stomach for this girl for this meal was between three hours and four hours; it could have been three hours it could have been four hours.
ANo, I am not saying that at all.
QI put it to you – let us assume that this girl ate the whole of the pasty and the apple pie and the milk and she is a normal girl and she has no worries that day and she has nothing else to eat that afternoon. In your opinion how long would it take for that meal in those circumstances to empty from her stomach completely.
AI am afraid I don’t quite follow what you are getting at. Would you kindly read the question again?
LAST QUESTION READ BACK TO WITNESS
TO HIS HONOUR:
QAs from the time she began eating it.
AIn the circumstances as I know them, then it would be from 3 ¼ to 4 ¼ hours.
The first point to be made is that Dr Manock’s opinion assumes that the rate of emptying is not linear. Indeed, on his testimony, it is dramatically exponential because even though his evidence was that the first 75 per cent was emptied in three hours to four hours, he opined that the last 25 per cent would have emptied in only another 15 minutes. Nowhere in his testimony, nor in his autopsy report, did Dr Manock explain the basis of his opinion that the rate of emptying the last 25 per cent of a meal accelerated exponentially. Indeed, it is difficult to see how on the basis of his knowledge sources, observations of stomach contents at autopsy which were not scientifically quantified or validated, and the texts, which were silent on the question, that he could have any idea at all whether the rate of emptying was linear or exponential, and in either case what the formula for that rate was.
As I earlier observed, Dr Manock’s opinion was also based on the emptying rate by volume and did not differentiate between the rate of emptying of liquid and solid meals.
The subsequent research has shown that the rate of emptying of solid meals is largely linear, for liquid meals exponential, and is largely determined by weight not volume. On the basis of a linear rate applied to the four hours to empty 75 per cent of the meal by volume, the time for complete emptying of Deborah’s lunch would have been about five hours. That time for a light meal of the kind Deborah consumed is inconsistent with the ‘normal’ complete emptying time on which Dr Manock’s opinion was premised. With that degree of variation, precision of the kind claimed by Dr Manock is not possible. Only on assertions which lacked any scientific foundation basis was Dr Manock able to give an opinion as to the latest time of death which, as it happened, coincided with the latest time by which the applicant must have left Taperoo.
At trial Dr Pocock was asked if the estimation of time of death from stomach contents was a reliable method for estimating time of death. He responded that it was unreliable even when the time and nature of the last meal is known. When asked about the variables which could affect the rate of emptying, he explained:
Type of meal taken, the contents of that meal, this would cover the amount of fat and amount of carbohydrate and amount of fluid, the actual volume of the meal, whatever activity was pursued after the meal was taken and also the emotional state of the individual in the intervening period after the meal is taken.
Dr Pocock disputed that it was possible to estimate, to within an hour, the time between taking a meal and death from gastric emptying. Dr Pocock referred to a post-mortem mentioned in a leading text in which the contents of a meal, taken nine hours earlier, were still identifiable in the stomach. Dr Pocock testified that he agreed with the proposition put in a leading text that a margin of error of one hour either side of an estimated time should be allowed.
In cross-examination, Dr Pocock accepted that the time for stomach emptying is ‘very approximately’ three to four hours.
Dr Pocock was not able to support his opinion that there was great individual variation around that approximate time with the hard data later scientific research has provided. For that reason, he was not in a position to respond to the sting in Dr Manock’s evidence that some pathologists were ‘clever’ enough to give more precise times of death than others, and, by implication, that Dr Pocock was simply not one of them.
Dr Pocock testified that it is standard practice in homicide investigations for forensic pathologists to take a body temperature reading:
QFirst of all, what is the method and what is the instrument used for taking body temperature.
AThe method is to use a thermometer. This is standard practice for any pathologist examining a body – where it is obvious that the time of death is going to be of paramount importance – to take the temperature of the body as well as the surrounds both air and water if necessary to obtain the most accurate available method for estimating the time of death. The only exception to this would be if the body was obviously decomposed.
QIn your experience the temperature is always taken.
AYes.
QIs the thermometer which is used for this purpose an expensive instrument or relatively inexpensive.
ARelatively inexpensive.
Dr Pocock listed the following factors which affect the rate of cooling of a body:
AThere are the obvious – temperature of the environment and the degree of clothing or un-clothing of the body, possibly the weight of the body, the amount of fat – and by the term “environment” I cover the variations in the environment, air temperature, wind, rain, sea; these are all factors.
QDo the text books on forensic pathology refer to rate of cooling and body warmth.
AYes.
QDo they refer to the periods of time within certain defined brackets as to when this is useful.
AYes.
QWhat are those periods of time that the text books refer to.
AUsually 18 to 24 hours after death; up to that period, of course.
On the question of estimating time of death from body temperature, Dr Manock testified:
The most common method of fixing the time of death is to take a body temperature by placing a thermometer in the rectum and observing the rate of fall of that temperature over a period of half an hour or an hour. It is essential that the conditions in which the body has been lying between death and this estimation, are preserved as near as possible. Once the rate of fall of temperature has been taken and the temperature at the time of the examination is known, one can work back to a normal body temperature and give a time interval.
In his evidence-in-chief, Dr Manock gave the following explanation for not calculating the time of death from the temperature of Deborah’s body:
Arising from the information I was given when I arrived at by the beach. I was told the body had been discovered more than partially covered by seaweed. I believed there was only the portion of one foot protruding from the seaweed, and this seaweed had been removed before I arrived at the scene. There had also been rain that evening and there was quite a strong wind developing as the early morning progressed. All these would materially affect the rate at which the body lost heat, and to such an extent that it would be impossible to compare the rate of fall of temperature whilst I was at the beach with what it had been before the body was uncovered.
When asked in cross-examination why he eliminated the use of body temperature methods, Dr Manock answered:
AFirstly, because the body was first discovered covered by seaweed. This had been removed. It had rained that evening so that the surface of the body had been wet. The wind had developed which would facilitate loss of heat by convection and also by evaporation of water from the damp clothing, and this can make any estimate of the time of death from a simple single temperature taken per rectum quite inaccurate and it is impossible under those circumstances to arrive at a figure for the rate of temperature drop because the original circumstances no longer pertain.
QAnd rigor mortis, why was that eliminated.
AWe needed to know the cause of death and whether there had been sexual interference very much sooner than 36 hours before death.
It is to be noted that by not taking the simple steps which would have measured body temperature and ambient air temperature when he was on the beach, Dr Manock foreclosed, without any careful consideration, not only his ability to make the complex calculations to which he referred but also the capacity of other pathologists to attempt them.
Judge’s summing up
The trial Judge summed up the prosecution and defence cases as follows:
The Crown case is that one, the deceased died on Taperoo Beach between 3.15 and 4.15 o’clock in the afternoon of the 15^th July, 1971, or at latest 4.30 p.m.
Two, her death was not due to natural causes but was the immediate result of an attack made upon her by some person.
Three, the person who attacked her assaulted her with intent to rape her.
Four, Taperoo Beach is a fairly lonely beach. Whoever assaulted the deceased must have been on the beach at the time, so the assailant is one of a small number of people for the number of people at that time on the beach must have been small.
Five, there were several people at Taperoo Beach that afternoon including the accused. All persons other than the accused who are known by the Crown to have been on the beach have had their movements accounted for.
Six, it is possible, even although unlikely, that there was another person or that there were other persons unknown to the Crown or the accused on the beach when the assault took place, but at any rate the accused is one of a very small group who had the opportunity of making the assault, that is, who were on the beach at the same time as the deceased.
Seven, red and black fibres found on the upper part of the girl’s singlet correspond it is said, both as to their respective characteristics and as to their relative frequency with the fibres of which the accused’s red and black jumper is composed, and the Crown assert that he was wearing that jumper that afternoon.
Eight, three brown fibres were found on the red and black jumper on the 29^th July, 1971, and two of those fibres correspond it is said, with the fibres of which the girl’s brown jumper is composed.
Nine, scraps of seaweed or seagrass were found on the red and black jumper.
Ten, the accused who on the Crown case was on the beach when the deceased was exercising her dog says he did not see her which is highly unlikely. He parked his car not in the readily available paved parking area, but against a clump of bushes in a spot in which it was more or less concealed. He had been to the beach for no apparent reason once or twice before on that day.
Eleven, he has not according to the Crown, been candid and truthful in what he has told the police.
So to sum it up the Crown case is that there is an inevitable conclusion to be drawn. The accused not only had the opportunity to assault the deceased, but he must have been in physical contact with her on the beach and these facts coupled with his denial of ever having seen her and the other circumstances of this case, lead to an inevitable conclusion that he was the assailant. The Defence do not of course have to prove anything. The burden of proof rests entirely on the Crown.
The Defence case is:
(1)The time of death of the deceased has not been satisfactorily established, and it has not been proved that the accused was on the beach at the time of her death. It is not certain that she was attacked on the beach or that her dead body was on the beach at all times.
(2)It follows that there is no satisfactory proof that the accused had an opportunity to attack her at the time the attack occurred.
(3)There may well have been another person or other persons who could have made the attack.
(4)She may have died from natural causes or at all events without being attacked.
(5)The accounts given by Cocks and other witnesses of facts observed, including the location of fibres are not admitted. Nor is it admitted that the accused was wearing his red and black jumper on the beach, indeed, that is denied. The singlet might have become contaminated from some other source. It was carelessly handled by the police.
(6)But even if the fibres were found as alleged, they can only be stated to be similar. They cannot be proved to be identical, and the possibility of coincidence cannot be disregarded. The dyes are common dyes.
(7)Even if the fibres arouse suspicion against the accused, they do not create any satisfactory and irresistible proof that the deceased and the accused came into contact.
(8)The denial on oath made by the accused at the first trial and his denial in the present trial ought to be believed, but even if that denial doesn’t appeal to the jury as necessarily truthful, it cannot be regarded as necessarily false, especially in the light of other evidence which supports or tends to support it.
(9)The jury, even if suspicious of the accused, ought to have a residual reasonable doubt as to his guilt, and he is entitled to the benefit of that doubt.
(10)His action in requesting the T.L.C. test on the red and black fibres is more consistent with innocence than with guilt.
The centrality of the circumstance that very few persons, other than the applicant, had an opportunity to commit the crime is apparent from the fifth and sixth prosecution propositions and the first three defence propositions.
The Judge dealt with the evidence of Dr Manock and Dr Pocock, ultimately observing that they might think it ‘probable’ that Deborah had died by 4.30 pm but that they must form their own opinion on the question:
You will bear in mind the submission by Mr. Borick, supported by Dr. Pocock and various textbooks, three to four or four and a half hours is an average time for an ordinary meal to pass through the stomach of a person in an ordinary physical state of health.
Counsel have both discussed these variables with you, but if you accept the evidence of Christine as to the time of eating lunch, the evidence of Christine and Dr. Manock as to what the lunch was, and the evidence of Dr. Manock as to what residue of lunch he actually saw in the stomach and the small intestine, you have a fairly ordinary school lunch actually passing out of the stomach at the time of death, not earlier than a little after 4 p.m.; that is, not earlier than about three and a half to three and three quarter hours after lunch began.
It is, I suppose, possible that Debbie was emotionally disturbed, although there is no evidence that she was. You know what she did on that day. You will consider what that suggests to you. It may be, on Dr. Manock’s evidence alone, you could not be certain that Debbie died before 4.30 p.m., although you might think this probable. However, you must consider his evidence and the strictures made upon it, and form your own conclusions.
Textually I read the qualifications and strictures referred to in the last paragraph to be those mentioned in the middle paragraph.
The potentiating interaction between the fibre evidence and the limited opportunity of others to commit the crime was left to the jury in these terms:
Mr. Johnston has gone through the various comparison tests to show just how closely the fibres match in appearance, composition, colour and dyes. It is possible, even so, that the red and black pullover is not the source of the fibres on the singlet, but all evidence which you accept must be taken together.
The Crown do not put forward the accused as a man found in King William Street wearing a red and black jumper, but as a man who was wearing a red and black jumper on the beach at Taperoo at a time when the deceased was also on the beach, but few other people were on the beach.
The fresh evidence

On the hearing of the application, the Court received a report of Professor Horowitz dated 10 February 2016 which critically analysed Dr Manock’s opinion against current scientific knowledge. Professor Horowitz is an eminent researcher into rates of stomach emptying who has published internationally. Professor Horowitz’s report records the rapid expansion of knowledge of gastric emptying since the mid 1970’s. The most important of the techniques used by researchers is the scintigraphic measurement of stomach emptying which uses low dose radioactive markers incorporated into liquid, solid or mixed solid and liquid meals essentially creating a gastric scan. The research has revealed that gastric emptying is a very complex process involving many hormonal signals and muscles. The research has established, by objectively measured and validated experimentation, that there is a substantial variation in the rates of gastric emptying between individuals.
This body of research work is discussed in an article published by Professor Horowitz with the eminent forensic pathologist, Dr Derek Pounder, in 1985. The authors concluded:[4]
[4] M Horowitz & DJ Pounder, Gastric Emptying – Forensic Implications of Current Concepts, Med. Sci. Law (1985) Vol. 25, No. 3, 201 at 211.
This brief review has attempted to summarize the major advances in our understanding of gastric emptying in humans. The measurement of gastric emptying using radionuclide labelled food markers and a scintillation camera is non-invasive, quantitative and permits the simultaneous measurement of both solid and liquid components of a meal.
Those aspects of gastric emptying of forensic relevance may be summarized as follows:
1.Simultaneously ingested liquid, digestible solid and non-digestible solid foods leave the stomach at different rates.
2.The emptying pattern of low calorie liquids approximates a monoexponential (volume-dependent) process primarily resulting from the motor activity of the proximal stomach.
3.The emptying of digestible solids is usually much slower than liquids and approximates a linear pattern following an initial lag period. It is primarily dependent on the motor activity of the distal stomach.
4.The emptying of larger, non-digestible solid particles chiefly occurs during the inter-digestive periods, as a result of a specific pattern of gastric motor activity.
5.Meals of higher osmotic and caloric content empty more slowly.
Professor Horowitz further explained their findings in his evidence before this Court:
QBut do you not indicate there by reference to your journal with Dr Pounder in the Journal of Medical Science and more referred to on the previous page, that if you weigh stomach contents —
AYes.
Q— then it would allow you to consider studies such as yours that focus on 50% emptying times for the solid components of meals of various sizes and from that obtain a general idea as to —
AYes, I absolutely agree. You would arrive at a crude estimate which would be certainly a matter of hours, not an hour, and I would consider that estimate highly crude, but it will be something.
…
QSo if we have an idea of weight and we have an idea of content, we can get a rough idea of time of death by then cross-referring to table (ii).
AYes, and you would get a very crude estimate and table 2 could of course be now substantially expanded and you will note in table 2 that it showed in fact standard areas of the mean, so if we look at the study by Moore et al in 1981 if we look at 300 gram meal or let’s say the 900 gram meal, the standard errors for a group, so it will approximate – please, this is not precise – but the range will be about seven times 26 plus or minus on either side, so it will be about 180 plus or minus, so you have got a three-hour variation on either side. Please, that’s a calculation done in this witness box. So, it’s an enormous range because these are standard errors, not even standard deviations, so it shows the enormous range, so you would get something very crude.
In his report Professor Horowitz critically evaluates Dr Manock’s opinion against the learnings from his research:
It is now appreciated that gastric emptying is a very complex process, which is dependent on the coordination of the contractile activity of the proximal and distal stomach, pylorus (the gastric outlet) and upper small intestine. It is also recognised that there is a substantial inter-individual variation in gastric emptying in health. – In general, nutrients empty from the stomach into the small intestine at a tightly regulated rate of ~1‑4kcal/min. Accordingly a 680kcal meal may take less than 3 hours, or more than 8 hours, to empty from the stomach completely. … It is now well recognised that a number of factors may influence gastric emptying; physical and emotional stress may profoundly delay emptying.
Validity of Dr Manock’s evidence
As a preamble, it is appropriate to state that I consider that the use of stomach contents to estimate timing of death is, in general, unreliable because of a number of potential confounders, but that measurement of the weight of the solid component of a meal may be of some limited value. This opinion was provided in a review that I co-authored in 1985 (Horowitz M, Pounder DJ. Gastric emptying – forensic implications of current concepts, Med Sci Law 1985:25;201-14).
I regard Dr Manock’s evidence as unequivocally highly erroneous in a number of important areas, particularly when considered in relation to scientific evidence generated since 1972. In particular:
(a)Dr Manock estimated that ~ 25% of the meal remained in the stomach at the time of death based on a measurement of volume – a volume which, by definition, includes variable ‘dilution’ by gastric secretion. The weight of the meal, including that of the solid component, should have been measured.
(b)Dr Manock does not appear to have appreciated the substantial inter-individual variation in gastric emptying in health which dictates that, once gastric emptying has been initiated, the timing of death certainly cannot be determined with a suggested precision of 60 minutes, or less (ie in this case between 3 – 4 hours after commencement of the meal). Furthermore, contrary to Dr Manock’s opinion it would be possible for 75% of a meal of this kind to empty within about two hours. I have estimated the energy content of the meal as pasty (260kcal), apple pie (240kcal), ~ 240ml flavoured milk (180kcal) – total 680kcal. – If the emptying rate was 4kcal/min (the upper end of normal), 75% of this meal would empty in ~ 128min.
(c)Dr Manock does not appear to have considered the differential patterns and emptying rates of digestible solids and liquids, nor the potential impact of physical / emotional stress. In particular, given the linear emptying rate of digestible solid and high nutrient liquid meals it would be extraordinarily unlikely, if not impossible, for ~ 25% of this meal to empty completely from the stomach in ~ 10 min. – Assuming that the energy content of the meal approximates 680kcal, this would imply an emptying rate of 17kcal/min which, to my knowledge, is not known to occur in health.
In his testimony, Professor Horowitz emphasised the importance of measurement to the scientific method:
[T]he Roman Emperor Marcus Aurelis said “We need to learn to measure what we value, not value what we can easily measure”. It’s a very important concept. The simple fact is we did not have techniques which could reliably measure the rate the stomach empty before the mid 70s; it’s just a fact. So anything that was said about that, any opinion – I heard what was said before – needed to be at a minimum highly circumspect, because there were no measurements that could.
By reference to a graphical representation of experimental results, Professor Horowitz explained the variation in rates within the same individual and concluded:
… So you can’t estimate gastric emptying to an hour, you just can’t do it. So that is why I showed the individual data and I didn’t want to show you standard errors, standard deviation, you can see this one person, one day was 140-170 minutes and the other day they were 40-50 minutes, that’s a normal volunteer studied under stable conditions, so you cannot, once the stomach has started to empty, no-one can estimate gastric emptying to within an hour, it simply cannot be done and that information was not known. Have I made that clear, sir, those points, because I know there is some more.
Professor Horowitz emphasised that the research has revealed and, importantly, quantified an even greater, four times, variation in emptying times between different individuals:
… I hope I have shown that the variation within a given individual is very small. The variation between healthy individuals is enormously large, so in fact if you calculate rates of gastric emptying in ballpark terms there’s a four times variation in the normal rate of gastric emptying, between about one kilocalorie per minute, to about four kilocalories per minute in a given individual and this has been only relatively recently recognised.
…
[I]f you give a person a meal that is 300 g and you give the same composition meal that is 600 g, the rate that meal will enter the small intestine from the stomach is going to be very predictable in a given individual, but will vary considerably between healthy individuals and that rate is usually in the range of about 1-4 calories per minute.
Professor Horowitz elaborated on the ‘four-times’ variation in cross‑examination:
QSo your tightly-regulated rate of gastric emptying in healthy people of between one and four kilocalories a minute.
AYes, that’s what it averages to be.
QThat’s what it averages to be.
AYes.
QBut when you say in the one individual that rate is generally constant, in actual fact it can vary depending upon such things as weight, the individual’s weight.
AThose changes are extremely small and do not account for this variability which I showed you the figure, which you saw and I can show you another 20 papers showing the same sort of thing, yes, three or four times the variation.
QThat tightly-regulated emptying rate of one to four kilocalories a minute, is there a mean emptying rate for the general population.
AThere have not been any vast population-based studies, but in my experience I think the mean is likely to lie at about two calories per minute. Now again when I say 1-4 kilocalories a minute, that may vary a little according to a meal, I’ve said that for the need to understand it. If we want to remove calories we can just say within healthy people there is a three to four times variation of their emptying rates, that may be easier than using calories.
…
QJust backtracking, though, a three to four times variation, but in your experience the average healthy person will empty the contents of their stomach at a rate of about two calories a minute.
AYou asked – I again am uncertain of your terminology, I don’t [know] what ‘average’ means. Average to me means the mean value. That’s where if you pick 100 people, you pick No.50, so I would rather consider that there is a wide range of emptying and if you put the 100 people together you are likely to come up with two.
QTwo emptying –
AWith a value of about two kilocalories a minute.
QSo the mean is two for about 100 people in your experience.
AYes. Not just my experience, my experience is based on literature too.
KOURAKIS CJ.
QThat means out of the 100 you will get 49 that won’t empty as quickly, so 48 and a half really, it won’t empty as quickly and 48 and a half that will empty more quickly and that range of speed is three or four times.
AIn fact, the terminology for that is the median, the actual 50^th value. The mean is actually the average, so you it may not be exactly the same, it’s the above and below, but the point is the spread is enormous.
It is important to understand from those answers that the mean calculated from the research is not the rate of emptying for most people. Rather it is the mean calculated from an ‘enormous spread’ between the slowest and fastest rates.
Professor Horowitz strongly denied the scientific validity, in the light of the subsequent research, of Dr Manock’s opinion that stomach emptying occurred between three and four hours after Deborah commenced her lunch:
QSo basically in your opinion Dr Manock’s opinion, based on, to use the general phrase, the stomach contents was unreliable and not possible to fix the time that he did fix within a 60-minute period.
AIt’s clearly impossible. I consider his evidence, as I said in my report, I really wouldn’t want to change the terminology, as unequivocally highly erroneous in a number of areas, which I alluded to, and as supported by clear scientific evidence. So he was simply wrong in making that estimate. It was not justified then and cannot be justified now.
QWhat you have put to the court as to what I’ll call scientific advance in this area since 1972 when he gave his evidence, was not before anyone at that time.
ANo, there was no evidence, for example, there was no good data on how solids empty from the stomach. The deceased had a solid meal, so certainly when I’m asked a medical opinion and I don’t have any evidence base I say I don’t know.
VANSTONE J
QJust if you can put yourself back into the early 70s: what range given the level of learning at that time, what would have been an appropriate range to estimate the cause of death.
AThere was no appropriate way. The only circumstance where I think that it would have reasonable validity is the very unusual circumstance when all the meal is in the stomach and there is absolutely no evidence of any of the meal in the small intestine, so there is no evidence of gastric emptying having been initiated at all. In that case there, of course, are issues, but you will be likely to assume that death occurred very soon after eating that meal, because as you see solids usually start to empty within 30 minutes or so and liquids earlier than that. But if emptying has already commenced, which was demonstrably the situation in Deborah Leach, I don’t think you can provide any reliable estimate whatsoever. That’s what I said in 1985 in a review and in my opinion that has not changed.
Professor Horowitz gave this evidence about the outer limits of the period of stomach emptying on the basis of the assumptions made and observations recorded by Dr Manock:
KOURAKIS CJ
QAt the risk of being a bit trite, on the observations of Dr Manock you would accept that death could not have been any earlier than, say, 30 minutes from the eating of the meal.
AWell, again I would have to – I actually have put it in my report, Dr Manock says – again I may get this wrong – I think he believed that about 25% of the content was in the stomach, inferring that 75% of the meal had left. So again, you can base it on what you believed the amount of calories are in the meal and I have done those sort of calculations. What you certainly cannot say is that 25% would empty in 10 minutes which is what he did. That’s wrong.
QI’m just trying to get the outer limits of the use of the observations made by Dr Manock might have. So, how soon to the time of eating and how long afterwards is the outer limit that would be safe.
AAgain I did my best to estimate that in my report based on again a calculation of the calories in the meal, which I made, I don’t know if it’s correct or not, at least I did my best, but it certainly is a matter of hours. I mean, in crude terms, if you have a meal, I think I estimated, if you don’t mind me looking, 680 kilocalories, so if you divide that by 4 it gives 170, so that would be the lower limit for all emptying and the other one would be about 680. So that’s why I say the value is limited and that is before we consider permutations which you alluded to which may alter or delay it further; stress, exercise. So this is based on health, so this range will only get worse if you introduce any other variables. So if my 680 kilocalories is about right we will have a range from something like 170 minutes to 680 minutes. That’s more than an hour.
XXN
QBut with respect, if Dr Manock is right and there was 25% of the meal that remained in the stomach –
AYes.
Q– then our range comes in from the 680 divided by 1.
AYes, not very much.
QBut 25%.
AYes, but not very much. And again it depends on the accuracy of the estimation of the 25% which I consider highly dubious. How can anyone say precise 25%? If it is 35 a big shift, if it’s 15 a big shift. It can’t be done.
QStatistically then, our range could be at an emptying rate of 3 kilocalories a minute, bearing, or taking into account that there is 25% of the meal that remains in the stomach –
ADr Manock actually suggests that the emptying rate could be 17 kilocalories per minute which would mean it would empty in no time, but he is wrong.
…
QAnd in answer to the Chief Justice’s question you gave us an outer limit and all I’m putting to you is for each individual that falls within that range, applying the arithmetic at each stage, we have to reduce it by 25%; would you agree with that? If you accept of course Dr Manock’s evidence that there was 25% of the meal that remained in the stomach.
AWell, I don’t accept that because I don’t think he can make that estimate with any precision and I can’t see how we could.
KOURAKIS CJ
QThe 170 minutes and 680 minutes outer ends of the range was that for 100% emptying or 75% emptying.
AI did that in my head, I’m just saying it’s obviously total emptying, based on total kilocalories of the meal. I don’t even know if my estimate is correct, it’s just based on looking up the calorie content of those components in Wikipedia but I imagine it would be close to the estimate.
QI appreciate the summary nature of your calculations but were they based on 100% emptying.
AYes, it is, it’s basically, it’s the crude estimate of 1-4 kilocalorie. But the most important thing is the four times variation.
QI understand that, thank you.
Before leaving Professor Horowitz’s evidence, I observe that the fresh evidence does not, of course, establish that Deborah did in fact die after the four hour limit on which Dr Manock had insisted. Precisely because of the wide variation between individuals in the time taken for gastric emptying, Dr Manock’s estimate may, as a matter of pure chance, have been right. The possibility that Dr Manock might have, quite accidentally, chanced upon the correct time, and we will never know, is not to the point. The burden of the fresh evidence is that Dr Manock’s opinion that the time of death could not have been any later than four hours after the start of Deborah’s luncheon meal was both wrong and unscientific.
Construction of s 353A of the CLCA
Section 353A of the CLCA is set out in [153] at the reasons of Vanstone and Kelly JJ.
In essence, the jurisdiction of this Court is to enquire into whether fresh and compelling evidence establishes that there was a substantial miscarriage of justice in the conviction of the applicant. The jurisdiction of the Full Court is not to enquire into whether there was a substantial miscarriage on any ground which was, or might have been, agitated in an appeal brought pursuant to s 353 of the CLCA. Its jurisdiction is only to enquire into whether fresh and compelling evidence establishes that there has been a substantial miscarriage of justice.

By analogy with the proviso in s 353(1) of the CLCA, a substantial miscarriage of justice means, at least, that the applicant has lost an opportunity of an acquittal which would have been reasonably available if the fresh evidence had been adduced at trial. Unlike the proviso in s 353 which places the onus on the prosecution to show that there has not been a miscarriage of justice, in an application brought pursuant to s 353A the applicant carries the onus of establishing that their conviction resulted from a substantial miscarriage of justice.
Section 353A of the CLCA is premised on the discovery of fresh and compelling evidence. It is appropriate, therefore, to apply, by analogy, the test which commanded majority support in Mickelberg v The Queen[5] on a fresh evidence appeal pursuant to the equivalent of s 353 of the CLCA. That test is whether there is a significant possibility that the jury acting reasonably would have acquitted the appellant if the fresh evidence had been before it. The casting of the onus on an applicant pursuant to s 353A of the CLCA to establish a substantial miscarriage of justice does not require a higher test. On a fresh evidence appeal, pursuant to s 353 of the CLCA, the proviso cannot be applied to deny a retrial if there is a significant possibility of an acquittal on the fresh evidence. Moreover, even though s 353A allows for an additional appeal, there are strong policy reasons to apply the same test whether the fresh and compelling evidence is discovered before or after the disposal of a first or earlier appeal.
[5] (1989) 167 CLR 259 per Mason CJ at 273, per Deane J at 288-289, per Toohey and Gaudron JJ at 301.
The principle of finality does not demand a stricter test because the hearing of a subsequent appeal pursuant to s 353A of the CLCA is premised on the discretionary admission of the fresh and compelling evidence. If there is a significant possibility that a jury acting reasonably would have acquitted on that fresh and compelling evidence, there has been a miscarriage of justice which can properly be described as substantial.
Nonetheless, there can be no substantial miscarriage of justice if the Full Court, after receiving the fresh evidence, is satisfied that the totality of the evidence proves the applicant’s guilt. The cases in which that degree of satisfaction will be attained on the papers will be rare. On the other hand, the Court may be satisfied that there has been a substantial miscarriage of justice even though the totality of the evidence is capable of proving the applicant’s guilt beyond reasonable doubt. In that event, the conviction will be quashed and a retrial ordered. Finally, the fresh evidence may be of such a nature and quality that even without a new trial the Court is left with a doubt. If having regard to the fresh evidence, the Court concludes that no jury properly directed could convict the applicant, the Court will direct a judgment of acquittal to be entered.
Disputation as to what is fresh evidence is likely to be limited to the ‘reasonable diligence’ limb. That is not in issue in this case. Professor Horowitz’s reported testimony was of research conducted well after the trial and his opinion was based on that research. There is no warrant to attempt to put a limiting gloss on the statutory definition of fresh. It is the additional requirement that the evidence is compelling which operates as the effective control mechanism on the exercise of the jurisdiction. It is to that which I now turn.
The object of the enquiry – substantial miscarriage of justice – informs the meaning of compelling evidence. The statutory mechanism of using the single word ‘compelling’ in s 353A(1) of the CLCA, and then defining it by reference to three further considerations in s 353A(6), in itself, suggests that there may be some overlap between the terms reliable, substantial and highly probative. Nonetheless they address different considerations.
Evidence is reliable if it is credible and unlikely to be mistaken. In determining whether evidence is sufficiently reliable to enliven the jurisdiction of the Full Court and to establish a substantial miscarriage of justice, questions of degree may arise. The degree of reliability which is required may vary depending on the nature of the fresh evidence and the evidence adduced at trial. The fresh evidence proferred here is plainly reliable. Indeed, it is not challenged. Accordingly, there is no need to consider this limb any further.
Evidence is highly probative if it affords strong proof of an issue in dispute. To be highly probative the evidence must be directly, and not merely peripherally, relevant to that issue. It must also significantly affect the probability or improbability of the occurrence of the contested fact of which it is probative. For example, the evidence of an eyewitness to a crime who attests to the identity of the offender, or the commission of the actus reus, when either of those facts are in issue at trial, will generally be highly probative.
The scientific research described, and opinion evidence given, by Professor Horowitz is highly probative on the issue of whether Deborah died no more than four hours after she commenced lunch because it shows that the opinion of Dr Manock to that effect was plainly wrong.
Evidence is substantial if it materially weakens the prosecution case or significantly shifts the balance of the trial evidence. To return to the example just given of evidence which is highly probative, if a number of competing witnesses on an issue of identity or actus reus were called by the prosecution and the defence, the additional evidence of a subsequently discovered witness, depending on its quality, may not be substantial. However, a clear audiovisual record which is plainly inconsistent with material parts of the testimony of the prosecution eye witnesses is likely to be both highly probative and substantial even if the prosecution evidence included other strong evidence of guilt, for example, a confession.
The determination of this application depends on an assessment of the substantiality of the fresh evidence.
The evidence is substantial
The Judge’s summing up shows that the prosecution case against the applicant was hung on two circumstantial strands. They were that the applicant was one of very few people with an opportunity to commit the crime, and that the corresponding fibres made it probable that he had come into close contact with Deborah. Each strand added strength to the other. The case against the applicant was substantially stronger if the time of death was no later than 4.15 pm or 4.30 pm because it left almost no opportunity for another person to have committed the offence. It is to be remembered that the Judge observed in his summing up to the jury that they would probably find that Deborah had died before 4.30 pm based on Dr Manock’s evidence alone.
The possibility that, against the Judge’s observation, the jury might not have accepted Dr Manock’s evidence because of the doubt cast over it by Dr Pocock’s evidence does not make the fresh evidence any less substantial, because it cannot be known how the jury reasoned. They may, as the Judge directed them that they were entitled to do, have preferred Dr Manock’s evidence to Dr Pocock’s evidence and accepted that Deborah had been murdered by no later than 4.30 pm. The other evidence implicating the applicant would then have been all the more compelling. Whether or not the fresh evidence is substantial must be determined by reference to the issues joined by the prosecution and defence, and not by reference to theoretically open alternative routes to conviction which the jury may or may not have taken.
It is well established in appeals brought pursuant to s 353 of the CLCA that it is not for the appellant to establish that the jury proceeded in any particular way. If more than one route is left to the jury, each route must be sound.[6]
[6] Santos v The Queen (1987) 75 ALR 161 at 167-170; Prasad v The Queen (1994) 68 ALJR 194 at 195; Domican v The Queen (1992) 173 CLR 555 at 565, 570; Doggett v The Queen (2001) 208 CLR 343 at 383 [149]; R v Lawford (1993) 61 SASR 542 at 550-551; R v Clune (No 2) (1995) 82 A Crim R 247 at 252.
The fresh evidence proffered on this application significantly shifts the balance of the evidence because it markedly extends the period over which someone other than the applicant may have had an opportunity to commit the offence.
Disposition of the application
Having found that there is fresh and compelling evidence, it remains to determine whether or not it should be received. In the ordinary course, evidence which is both fresh and compelling, as I find it to be defined by s 353A of the CLCA, will warrant consideration. Advances in forensic science are the paradigm case of fresh evidence which should, in the interests of justice, be received and considered. Unfortunately, fallacious theories and approaches in forensic evidence are not unknown.[7] As a result of the DNA project in the United States, many wrongful convictions have been remedied.[8]
[7] South Australia, Royal Commission of Inquiry in Respect to the Case of Edward Charles Splatt, Royal Commission Report concerning the conviction of Edward Charles Splatt (1984) at pp 189-255 (fibres), 256-341 (paint and metals), 342 (conclusion).
[8] From January 1989 to February 2012, there were 873 exonerations of which 325 were due to DNA evidence: see S R Gross and M Schaffer, Exonerations in the United States, 1989 – 2012, Report by the National Registry of Exonerations (June, 2012). In 2015 alone there were 26 exonerations as a result of DNA evidence, from 149 total exonerations. Overall, DNA exonerations account for 24% of exonerations in the US Registry (419/1,733): see Exonerations in 2015, Report by the National Registry of Exonerations (February, 2016).
Dr Manock’s failure to take a body temperature is also significant in deciding whether or not to receive and consider the fresh evidence. Dr Manock eschewed estimating the time of death by reference to a complex, but reviewable, quantitative formula in favour of a method which allowed him to make an inscrutable assertion on the basis of his claimed superior experience as a pathologist. It is difficult then to see why evidence of the objectively verifiable scientific advances which falsify his opinion should not be considered.
Accordingly, I would hear the application and receive the fresh evidence.
In deciding whether there is a significant possibility that a jury, acting reasonably, would have acquitted if it had before it both the trial evidence and the fresh evidence, I proceed on the premise, for the reasons given in [69]-[70] above, that the jury may have convicted on the basis that Dr Manock’s impugned opinion was correct and that the applicant was therefore the only person with a real opportunity to murder Deborah before her death at 4.15 pm or perhaps 4.30 pm. On that premise, it is beyond argument that, on the fresh evidence, there is a significant possibility that a jury would have acquitted the applicant.
I turn to the question whether the application should be dismissed because, even on the premise that Dr Manock’s insistence that Deborah was killed no later than four hours after eating lunch was wrong, and the time of death could have been as late as 4.50 pm, a jury would necessarily convict. The prosecution case is a strong one, even on the extended period of time open on the fresh evidence in which another person may have committed the crime. The correspondence of the fibres is, on its face, strongly probative of guilt. However, the prosecution evidence did not comprehensively exclude other sources of the fibres. Indeed the Judge referred to the possibility of alternative sources in the passage of his summing up which I have set out above. Nor did the prosecution evidence exclude the presence on the beach of possible offenders between 4.25 pm and 4.50 pm. I am not satisfied that a properly directed jury would necessarily convict the applicant on a trial in which the fresh evidence would be adduced and in which, therefore, Dr Manock’s dogmatic opinion as to the time of death could not be proffered.
Indeed, I am satisfied that there is a significant possibility that a properly directed jury, acting reasonably, would acquit because it took the view that the evidence did not prove beyond reasonable doubt that Deborah had died before the applicant left the beach and did not exclude beyond reasonable doubt that she was murdered by another person after that time. On the other hand, the evidence is certainly capable of satisfying a properly directed jury of the applicant’s guilt. Therefore, I would order:
·Permission to appeal granted.
·Appeal allowed.
·Quash the conviction for murder entered on 12 July 1973.
·Direct a new trial.
VANSTONE AND KELLY JJ: Frits Van Beelen applies for permission to appeal against his conviction for the murder of Deborah Joan Leach at Taperoo, on 15 July 1971. The application is brought pursuant to s 353A of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’). That section has been in force since 5 May 2013. This is the third application of its type to come before the Full Court. The application for permission was referred to the Full Court by a single judge of this Court on 8 December 2015.
In the appeal notice filed by the applicant on 25 August 2015 are set out four grounds which he contends justify a finding of a substantial miscarriage of justice. All concern evidence given at the trial by Dr Colin Manock, then the Director of Forensic Pathology at the Institute of Medical and Veterinary Science, who performed the autopsy on the body of Deborah Leach on 16 July 1971. The grounds focus on Dr Manock’s competence and on particular opinions he offered, one of which went to the time of death.
The basis upon which this Court may entertain a second or subsequent appeal is set out in s 353A of the Act. The requirements will be discussed in more detail later in these reasons. In short, an applicant must satisfy the Court that there is “fresh and compelling evidence that should, in the interests of justice, be considered on an appeal”. The words “fresh” and “compelling” are defined in s 353A(6). The fresh evidence must be “reliable”, “substantial” and “highly probative in the context of the issues in dispute at the trial ...”: s 353A(6)(b). Section 353A(2) requires that the applicant obtain the Full Court’s permission to appeal.
As will be seen, while in our view the applicant has presented evidence which is fresh, that evidence fails at the hurdle of being “substantial” and “highly probative” and also, is not such as “should, in the interests of justice, be considered on an appeal”. Therefore, the Court’s jurisdiction to hear the appeal is not enlivened.
Short history of the prosecution of the applicant
The applicant was arrested and charged with murder on 6 October 1971. His first trial commenced on 4 July 1972 and, on 19 October 1972, he was found guilty of murder. He appealed against that conviction, taking more than 20 grounds: R v Van Beelen (1973) 4 SASR 353. The conviction was subsequently quashed and a new trial ordered.
The second trial commenced on 16 April 1973. Again, the applicant was convicted after trial by jury. Again, he appealed. One of the grounds of appeal concerned a direction given by the trial Judge regarding the conflict between the evidence given by Dr Manock and that of Dr Pocock, a forensic pathologist from Western Australia, as to determining time of death from stomach contents: R v Van Beelen (No 3) (1973) 7 SASR 125. The appeal against conviction failed. An application to the High Court for special leave to appeal also failed. An application to the Privy Council was dismissed.
Subsequently, the applicant’s petition for mercy was forwarded to the Governor and, in due course, referred to the Full Court of the Supreme Court by the Chief Secretary to be dealt with as in the case of an appeal: In the Matter of a Petition by Frits Van Beelen (1974) 9 SASR 163. The appeal constituted by the reference was dismissed.
This application
As mentioned, the notice of appeal contains four grounds in support of the contention that there was a substantial miscarriage of justice. We set them out:
Ground 1
Based on fresh and compelling evidence which has emerged subsequent to the trial of the Applicant at which he was convicted of the crime of murder, Dr Colin Henry Manock, who claimed to be a forensic pathologist, should not have been permitted to give evidence at the trial and as a consequence the evidence which he did present, which was a crucial part of the prosecution case, was inadmissible.
It has now been established that between 1972 and 1994 Dr Manock was at all relevant times:
a. unprofessional,
b. incompetent,
c. untrustworthy
Ground 2
The opinion Dr Manock provided as to time of death, clearly accepted by the jury, was wrong.
(We shall refer to this ground as the time of death ground.)
Ground 3
At trial it was the prosecution case, based on Dr Manock’s autopsy observations and his opinions, that the Applicant committed necrophilia on the body of the deceased immediately after killing her. That proposition was without factual or valid scientific basis.
Ground 4
Dr Manock was totally unqualified to become involved in the way in which he did, into the investigation of Sandercock’s role.
In the notice of appeal, the applicant goes on to set out in Parts 2 and 3, under the description “fresh evidence”, references to the various judgments arising out of his prosecution and convictions, and what he calls “Specific Findings” relating to Dr Manock’s evidence in those cases. In Part 4, he asserts that Dr Manock’s opinions as to cause of death (salt water drowning) and time of death (cited as 3.30 pm to 4.30 pm) were unsupported by any autopsy finding and “clearly wrong”.
Under Part 5 of the notice of appeal, entitled “Fresh and Compelling Evidence”, are set out various passages purporting to be excerpts of the transcript of evidence given by Dr Manock in hearings other than the Van Beelen trial on topics unrelated to those under consideration. Then, the applicant refers to various judicial, quasi-judicial and extra‑judicial utterances made in matters other than the Van Beelen proceedings said to bear on Dr Manock’s work in other identified cases.
The notice of appeal then refers to the published works of various medical scientists, including pathologists, physicians and gastroenterologists, all asserting that estimates of time of death based on stomach contents – also referred to as gastric emptying – are unreliable.
The applicant then asserts that all the material referred to justifies a conclusion that Dr Manock was unprofessional in his conduct, incompetent and untrustworthy. This was asserted to be information which only came to light since the Van Beelen petition.
Materials forwarded in advance of the hearing
We have set out parts of the notice of appeal and summarised others.
Prior to the hearing of the application, the matter was called on several times, both in order to clarify what material the applicant was relying upon and also to argue the issue of permission to appeal before a single Judge, being Lovell J. Orders were made in an attempt to regulate the proceedings.
On 12 October 2015, the application came before Kelly J for mention. In the course of discussion, counsel for the applicant, Mr Borick QC, observed that it was put against him that the applicant was not entitled to rely on the materials enumerated in the appeal notice.
The application came before Vanstone J on 13 November 2015. Just ahead of that hearing, the respondent had filed draft minutes of order requiring that the applicant file and serve by a certain date any affidavits of witnesses intended to be called in support of the application and that he exhibit any documents proposed to be tendered through the witnesses. In the face of the respondent’s request, Mr Borick informed the Court that the applicant would not be filing any other documents and was ready to proceed with argument.

And so it can be seen that both the Crown counsel and the Judge clearly put to the jury that, on the basis of Mrs Leach’s evidence, it could form the view that Deborah Leach was attacked, certainly by 5.00 pm, but probably before 4.40 pm.
At this juncture it is important to make three points about the impact of Professor Horowitz’s evidence on that given at trial.
First, the fresh evidence does not prove that Dr Manock’s opinion that death occurred between three and four hours after her last meal and not after 4.30 pm was wrong. What it shows is that, there being a marked variation between individual gastric emptying rates, an expression of opinion of such a limited span of time was not justifiable and Dr Manock’s opinion was apt to mislead the jury by too closely confining the window in which death must have occurred.
Secondly, we are far from accepting that, had Professor Horowitz’s evidence been available at trial, Dr Manock’s evidence would have been tested on the voir dire and ruled inadmissible. In our view, the state of the evidence before us is very far from showing that. Perhaps Dr Manock would have accepted the research and Professor Horowitz’s conclusions. Perhaps he would have modified his own evidence to speak in terms of averages or modes. Perhaps he would have been discredited before the jury. We do not consider that the fresh evidence before us, particularly presented in the way it was, with a marked lack of system, is such as to cast doubt on the admissibility – as opposed to the weight – of Dr Manock’s opinion.
Thirdly, setting aside Dr Manock’s evidence on time of death only increases the span of time within which death must have occurred by either 10 or 20 minutes: being from 4.00 pm to either 4.40 pm or 4.50 pm. That variation depends on what weight is placed on the deceased’s departure from routine in failing to be home in time for her mother’s arrival at 4.40 pm. Even on the outer limit, remembering that Mrs Leach saw no-one when she arrived at the beach, the murderer must already have departed that area before 4.50 pm. Therefore, absent Dr Manock’s opinion that death occurred not later than 4.30 pm, the time available to an unknown person to have come onto the beach, committed the murder and have left is extended by only 10, or at most, 20 minutes. In summary, extracting Dr Manock’s evidence has little impact on the thrust of the prosecution’s case. The finding of guilt does not imply acceptance of Dr Manock’s evidence: nor is the evidence of Professor Horowitz inconsistent with the applicant’s guilt.
Application of s 353A of the Act
Section 353A was inserted into the Act by the Statutes Amendment (Appeals) Act 2013 (SA), which operated from 5 May 2013. Its full terms are as follows:
353A—Second or subsequent appeals
(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.
In Keogh (No 2) this Court discussed generally the structure of this section: [80] ff. The Court observed that s 353A(1) provides an essential condition (comprised of three elements) which has to be met before the Court has jurisdiction to hear a second or subsequent appeal. This was referred to as the “jurisdictional fact”. The obligation to satisfy the Court that it has jurisdiction to hear such an appeal lies upon the applicant, and that must be on the balance of probabilities. Once it is so satisfied, the Court has a duty to hear the appeal, subject to the permission requirement in s 353A(2).
The Court went on to discuss the relationship of subsections (1) and (2). It treated the permission requirement as an additional hurdle for the applicant to meet after the requirements of subsection (1) were satisfied. Having referred to the long‑standing practice of the Court in dealing with the ordinary appeal provisions – being to grant permission if the grounds are “reasonably arguable” – the Court said at [88]:
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.
[Emphasis added.]
It might be thought, contrary to the assertion emphasised, that if the Court had reached a state of satisfaction that the proffered evidence was fresh and compelling in the relevant sense, and that it was in the interests of justice that it be considered on an appeal, there would be little or no work left for a requirement that the applicant show that both the elements of the jurisdictional fact and the contention that there was a substantial miscarriage of justice were reasonably arguable. Since the decision in Keogh did not turn on the interpretation of subsection (2), we do not consider ourselves bound by that aspect of the reasons.
It may be that the better view is that the permission requirement in subsection (2) is present merely to provide machinery by which a decision as to the jurisdictional fact might be recorded. We propose to utilise subsection (2) for that purpose.
The first question is whether the evidence of Professor Horowitz is fresh, as that term is defined in subsection (6). On one level, any evidence which was not and could not have been presented at trial and which went to an issue that arose at trial might be considered to be fresh. In a general sense, the evidence given by Professor Horowitz on the appeal, together with his report, would have to be seen as fresh evidence. However, the legislation cannot mean that any new evidence is fresh. Alternatively, the evidence might be seen to be fresh if it goes to a new topic, or if it addresses a topic in a new way.
It could be said that the evidence of Professor Horowitz is not fresh, because his ultimate opinion that Dr Manock’s evidence on this point was unreliable is an opinion which was given at trial by Dr Pocock. This illustrates the need to identify with some precision what aspect of the new evidence is said to be fresh. It depends upon the level of abstraction with which the new evidence is described. As we understand the applicant’s argument, what is said to be fresh is the later scientific work done on the question of gastric emptying, including the studies referred to by Professor Horowitz which took place subsequent to the applicant’s trial. It is that specific evidence which must qualify as fresh and compelling under the section. We accept that evidence of more detailed and reliable surveys of the rates of gastric emptying which were done from the mid‑1970s onwards, attested to by Professor Horowitz, amounts to fresh evidence. Obviously, there could not have been evidence of those studies called at trial, because they had not been conducted at that time.
The next question is whether the evidence is compelling. In our view, the evidence is not compelling in the relevant sense. There are three components to that issue. Certainly, evidence of the later experiments is apparently reliable. The opinions given by the witness about the variability of gastric emptying rates among individuals appears to have been well explored and considered by various well-qualified persons.
The next question is whether the evidence is substantial. In Keogh (No 2) at [106] the Court said this of the requirement that the evidence be substantial:
The word “substantial” should be given its ordinary meaning. It denotes being of sufficient importance, worth or value. Substantial is a qualitative, not quantitative, notion for the purpose of s 353A(6)(b). Evidence will be substantial, that is, of substance, if it merits being accorded weight as part of the consideration of the issue to which it relates. It may be that, in many cases, the requirement of substantial will add little. If evidence is seen to be reliable and highly probative in the context of the issues in dispute at trial, it is unlikely that it would be characterised as not substantial.
With respect to the authors, this explanation is marred by a degree of circularity. On any view, this interpretation renders the requirement as being undemanding to the point of lacking any content at all. In our view, dictionary definitions demonstrate that there is more to the word “substantial” than being of sufficient importance or being of substance. The Shorter Oxford English Dictionary on Historical Principles, Onions, CT (ed) (3^rd edition), Clarendon Press, Oxford, 1987, defines “substantial” to include these meanings:
A. adj. 1. That is, or exists as, a substance; having a real existence; subsisting by itself. 2. Philos. Of, pertaining or relating to, or inherent in substance ... 3. Relating to or proceeding from the essence of a thing; essential ... 4. That is, constitutes, or involves an essential part, point, or feature; essential, material ... b. Law. Belonging to or involving essential right, or the merits of a matter 1843. 5. Of food, a meal; Affording ample or abundant nourishment ... 6. Of structures, etc.: Of solid material or workmanship ... 7. Of ample or considerable amount, quantity, or dimensions ... 8. Based upon a solid substratum; not easily disturbed or damaged; of solid worth or value; weighty, sound ... 9. Of acts, measures, etc.: Having weight, force or effect; effective, .... 10. Possessing ‘substance’, property, or wealth; well-to-do, wealthy; ... 11. Of real worth, reliability, or repute; of good standing or status ... 12. Having a corporeal form: consisting of solid matter ... 13. Having substance; not imaginary, unreal or apparent only; true, solid, ...
The Macquarie Dictionary, Macquarie Library, 1981 (1^st ed) is to like effect:
1. of a corporeal or material nature; real or actual. 2. of ample or considerable amount, quantity, size, etc.: ... 3. of solid character or quality; firm, stout, or strong. ... 6. of real worth or value. ... 8. of or pertaining to the essence of a thing; essential, material, or important. 9. being a substance; having independent existence. ...
These definitions demonstrate that to be described as “substantial” the thing in question must reach both a qualitative and quantitative threshold. Not only must it be of substance and worth in its own right, but the word implies that it is an essential part of the thing, and the thing so described must have an independent existence; it must subsist or stand by itself.
On the Keogh interpretation, no content is given to s 353A(6)(b)(ii). However, Keogh was not a case which turned on the meaning of “substantial”, the Court going on to find that various heads of evidence were reliable and highly probative and therefore substantial. In those circumstances, we do not consider we are bound to apply that interpretation. It is not to be thought that the Parliament inserted subsection (6)(b)(ii) as merely another expression of the concept embodied in subsection (6)(b)(iii), highly probative. This Court should eschew an interpretation which gives subsection (6)(b)(ii) no work to do. Indeed, s 353A operates to provide an exception to the principle of finality. That principle has been authoritatively described as a “central and pervading tenet of the judicial system”: Burrell v The Queen (2008) 238 CLR 218 at [15], quoting D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34]. It is appropriate to give full weight to the narrow and restrained way in which the Court’s jurisdiction to entertain such appeals has been framed.
The Court should be especially careful in the context of expert evidence. It is a well‑known and valued quality of expert witnesses that their opinions tend to be expressed over a wide spectrum. The experience and the empirical evidence upon which each draws in expressing a view will vary enormously at any given time, let alone over a period of decades. Different views on any topic and new research will always be available. It is for the Court to ensure that, if the jurisdiction given in s 353A is to be exercised, the fresh evidence to be considered strictly answers each of the requirements set out in the provision.
Without implying any disrespect to Professor Horowitz, we do not consider his evidence to be substantial in the way that word is employed in the section. It is plain, even from the texts referred to in the evidence at the applicant’s trial, that a wide variation between individuals in rates of gastric emptying has been long acknowledged. Dr Pocock made that point at the trial. The work done by the witness since the applicant’s trial confirms the correctness of earlier views to like effect. It throws further light on an issue which was closely examined at trial. It fortifies the opinions expressed by Dr Pocock. The fact that new experiments add to the body of knowledge tending to the same conclusion is not such as to render this evidence substantial within the meaning of the sub‑paragraph. Placing the fresh evidence in context underlines the point. It is to be remembered that the new evidence does not show that death did not occur between three and four hours from the commencement of the last meal. It shows only that Dr Manock was wrong to say that death later than 4.30 pm could be excluded on the basis of stomach contents, a point well made by Dr Pocock. Without denying the value of the particular research undertaken by Professor Horowitz since 1973 – which has added to the body of knowledge in this field – in a real sense very little has changed since the close of evidence.
In our view the applicant also falters at the requirement that the evidence be “highly probative in the context of the issues in dispute at the trial of the offence”: s 353A(6)(b)(iii). There are two reasons for that. First, as already observed, Dr Manock’s expression of opinion about the time span within which death occurred was directly challenged. Excerpts of numerous textbooks on the topic were put to Dr Manock. Had Professor Horowitz’s evidence of experiments and finer measurements of gastric emptying rates been available to defence counsel, then it would have amounted to merely another strand in the bow used to attack Dr Manock’s unduly confined approach. Additionally, Dr Pocock gave evidence contrary to that of Dr Manock. There is no relevant difference between the opinion expressed by Dr Pocock at trial that stomach contents were not a reliable basis on which to estimate time of death, as against Professor Horowitz’s similar opinion. That Professor Horowitz had available to him the learning accumulated since 1973, including his own experiments, and that this learning appears in 2016 to provide additional support for Dr Pocock’s opinion, is not, in our opinion, of sufficient weight to render the new evidence highly probative in the context of this trial.
Secondly, as we have outlined, the telling evidence in relation to the time within which death must have occurred came, not from Dr Manock or Dr Pocock, but from the civilian witnesses whose evidence we have described. Certainly, the time of death was a matter of great importance. However, we do not consider that such evidence as was given in this Court by Professor Horowitz would have added anything much to the material already before the jury. The persuasive evidence was that of the civilians. If that were accepted and the inferences flowing from it drawn, then, incidentally, it demonstrated that Dr Manock’s estimate was probably correct. Professor Horowitz’s opinion does not undermine the prosecution case in the trial. For all these reasons, we do not consider that the evidence is compelling.
For the same reasons, we do not consider that the evidence “should, in the interests of justice, be considered on an appeal”. In many ways, this question is linked to that of how compelling is the new evidence. Even if we had taken the view that the evidence of Professor Horowitz was compelling in the sense of clearly contradicting the opinion of Dr Manock as to time of death, for the reasons given we would still not have found that the evidence should be admitted in the interests of justice because, in our view, the evidence replicates evidence already before the jury and would have made no difference to the resolution of the issues at trial. But it can be imagined that, even where evidence were compelling, it might yet not be in the interests of justice to receive it. In our view, a consideration of the importance of finality will also be particularly pertinent here, all the more so where the conviction is of long standing. As discussed earlier, the charge against the applicant has been deliberated upon by two juries and several appellate courts. This provides an additional reason why it is not in the interests of justice to further review it on the basis of evidence which does not clearly undermine it.
Even had we decided that the fresh evidence was such as to found jurisdiction, we would nevertheless not have been persuaded that a substantial miscarriage of justice occurred.
In Keogh, the Court looked to the High Court decision in Baini v The Queen (2012) 246 CLR 469 for guidance on the meaning of the expression ‘substantial miscarriage of justice’. Baini was a decision concerned with s 276 of the Criminal Procedure Act 2009 (Vic) which is similar, but not identical, to the common form appeal provision found in s 352 of the Act, in which the same expression occurs; albeit in a clause referred to as ‘the proviso’. Baini was not a “fresh evidence” case. The Court in Keogh referred to a number of passages in Baini, commencing at [14] of that case, before finding that, in considering whether a substantial miscarriage has occurred, the Court will consider whether, notwithstanding the error at trial, the conviction was inevitable. It said at [128]:
In summary, 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. The categories of when and how a miscarriage of justice can occur are too numerous to attempt to define. However, they include wrongful admission of evidence, evidence which is flawed in some respect, comments by counsel or the judge which are prejudicial, and statements made which cannot be supported by the evidence.
Later in its reasons at [338] and [343], the Court applied that test, finding that, had the fresh and compelling evidence been before the jury, Keogh’s conviction would not have been inevitable.

With great respect to the members of the Court in Keogh, we doubt whether what we shall call the Baini question is the question to be posed in a case such as the present. (We would immediately observe that, even if the relevant question is a different one, it would probably not have affected the result in Keogh.) That is not only because Baini’s case concerned a quite different statutory provision, but also because the statements in Baini’s case presuppose an error or irregularity in the trial. In the present case, we do not consider there was an error. Rather, the evidence of Professor Horowitz, based on experiments conducted subsequent to the trial of the applicant, casts further doubt on the rigidity of Dr Manock’s already disputed evidence about time of death.
We consider that of more assistance in interpreting the task presented to the Court by s 353A is a consideration of cases where fresh evidence was presented and where the High Court discussed what question was to be posed if that evidence were accepted.
In Gallagher v The Queen (1986) 160 CLR 392, there was an application for special leave to appeal from a decision of the Full Court of New South Wales dismissing an appeal in which fresh evidence had been presented by a witness who claimed that he, rather than the applicant, killed the murder victim. The High Court dismissed the application for special leave and four separate judgments were delivered. All members of the bench discussed the formulation of the question to be determined where fresh evidence was placed before the Court. At p 398, Gibbs CJ noted that different considerations arise where, on the one hand the Court is considering whether an irregularity in a trial gave rise to a miscarriage of justice, as compared with a situation where fresh evidence was received. His Honour said that, in the latter situation, an issue for determination was “whether the court should act upon its own view of the effect of the fresh evidence, or should consider what effect a reasonable jury might have attributed to it, because in that case the Court of Criminal Appeal has to consider material which was not available to the jury.” In agreeing with the reasons for judgment of Mason and Deane JJ, Gibbs CJ posed the relevant question as follows, at p 399:
... the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial.
The formulation of Mason and Deane JJ in those terms appears at p 402. Brennan J at pp 409-410, found that:
... it is sufficient to show that it is likely, not that it is certain, that a different verdict would have been produced if the fresh evidence had been given.
His Honour noted that, because of the onus of proof, the test was not whether the jury would likely have believed the evidence had it been given, but whether the jury would have been more likely to entertain a reasonable doubt. Dawson J, at p 421, reached a different view. He said that it would be sufficient if upon the whole of the evidence, including the fresh evidence, the Court of Criminal Appeal concluded that a jury might entertain a reasonable doubt about the guilt of the appellant.
The matter was again considered in Mickelberg v The Queen (1989) 167 CLR 259. There the fresh evidence under consideration bore on the correctness of a number of assertions made by police witnesses at trial. All members of the Court discussed the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence. Mason CJ said, at p 273:
It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.
Brennan J at p 275 observed that the question was settled by the High Court in Ratten v The Queen (1974) 131 CLR 510 at pp 519, 528 and Lawless v The Queen (1979) 142 CLR 659 at pp 666, 670, 677 and 686. His Honour said the question was whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused. His Honour noted that the test had sometimes been expressed in terms of “likely” or “might”, or in terms of “significant possibility” and that his own preference was for the “likely” formula. Deane J adhered to the “significant possibility” formulation his Honour had accepted in Gallagher: pp 288-289. Toohey and Gaudron JJ, at p 301, said that the fresh evidence must be of such quality that when considered in combination with the evidence at trial, it could be said that the jury “would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it”; or, if there were a practical difference, that there was “a significant possibility that the jury, acting reasonably, would have acquitted the [accused]”.
An example of the application in this jurisdiction of this approach is R v Parenzee (2007) 101 SASR 456, a case concerning fresh evidence.
In our view, given the terms of s 353A and given that the section presupposes that an applicant had a fair trial according to law on the basis of the then available evidence, we consider there is no reason why the applicant’s task under s 353A would be any easier than in the usual fresh evidence case; that is, any easier than the test set out in Gallagher and Mickelberg.
As we have stated, on our analysis of the fresh evidence in the present case, the applicant fails to establish that the Court has jurisdiction. Accordingly, what we have said about subsection (3) is not essential to our decision. We have gone further, in case it might be thought that we should have reached a state of satisfaction as to the threshold question of jurisdiction. Had we been so satisfied, the applicant would have failed to satisfy us that there had been a substantial miscarriage of justice, for the very same reasons which led us to find that the fresh evidence was neither substantial nor highly probative.
Although we recognise that what we have said about the relevant test under subsection (3) is contrary to this Court’s decision in Keogh, it is arguable that what was said in that case was not part of the ratio decidendi; and, plainly, it is not so here. But because it is a critical part of the section, we think it appropriate to set out our reservations about the Keogh approach. We leave for another occasion the further task of assessing the significance, if any, of the textual differences between the wording of the proviso in s 353 and s 353A(3).
Conclusion
For these reasons, we consider that, although the evidence of Professor Horowitz should be admitted on the application for permission to appeal, we are not satisfied that it is compelling evidence which should, in the interests of justice, be considered on an appeal, within the meaning of s 353A. Accordingly, the orders we would make are:
1.     Admit the following documents:
(a)     the report of Professor Horowitz, MFI A1, as Exhibit A1;
(b)     the curriculum vitae of Professor Horowitz, MFI A2, as Exhibit A2;
(c)the graph and pages 1121-1122 (from an article of which Professor Horowitz was a co-author), and page G294 (from an article of which Professor Horowitz was a co-author) brought to Court by Professor Horowitz to assist the Court, MFI A3, as Exhibit A3; and
(d)the article of Messrs Horowitz and Pounder, to assist in explaining Professor Horowitz’s evidence, MFI A4, as Exhibit A4.
2.     Admit the evidence of Professor Horowitz.
3.     Refuse the application for permission to appeal to the Full Court.