(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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Van Beelen [2016] SASCFC 71
Case
[2016] SASCFC 71
Decision Date
CaseChat Overview and Summary
The case of *R v Van Beelen* concerned an appeal against a criminal conviction. The appellant, Van Beelen, sought to introduce fresh evidence on appeal, specifically the testimony of Professor Horowitz, to challenge the original trial evidence regarding the time of death. The dispute centred on whether this new evidence was sufficiently compelling to warrant its admission on appeal and potentially lead to a new trial.
The legal issues before the court were primarily twofold: first, the admissibility and significance of fresh evidence on appeal, and second, the interpretation and application of section 353A of the *Criminal Law Consolidation Act* (CLCA), which governs the admission of fresh evidence in appeals. The court was required to determine if Professor Horowitz's evidence met the threshold for admission under this section and if its admission was in the interests of justice.
The court's reasoning involved a detailed examination of the trial evidence concerning the time of death, particularly the expert testimony of Dr Manock regarding gastric emptying. It was noted that Dr Manock's calculations were based on information about the deceased's mealtime that was later found to be mistaken, and that a revised calculation, accounting for the correct mealtime, would place the time of death earlier, potentially before other witnesses left the scene. The court also considered the construction of section 353A of the CLCA, expressing reservations about a previous decision in *Keogh* regarding its interpretation. Ultimately, while the court admitted the documents and evidence of Professor Horowitz for the purpose of the application, it was not satisfied that this evidence was compelling enough to be considered on the appeal itself in the interests of justice.
Consequently, the court made orders admitting the evidence of Professor Horowitz and related documents as exhibits. However, the application for permission to appeal to the Full Court was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
KOURAKIS CJ
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.