On appeal from the Supreme Court of South Australia
Representation
K V Borick QC and F R Gerry QC with A J Redford for the appellant (instructed by Michael Hegarty & Associates)
A P Kimber SC with F J McDonald for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Van Beelen v The Queen
Criminal law – Appeal against conviction – Second or subsequent appeal – Application for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act1935 (SA) – Where appellant convicted of murder – Where expert evidence of time of death given at trial based on stomach contents of deceased – Where new evidence demonstrated expert estimation of time of death at trial erroneous – Where new evidence required to be fresh and compelling in order to be admitted – Where evidence compelling if reliable, substantial and highly probative in context of issues in dispute at trial – Whether new evidence substantial – Whether new evidence highly probative in context of issues in dispute at trial – Whether in interests of justice to consider new evidence on appeal – Whether admission of evidence based on stomach contents at trial occasioned substantial miscarriage of justice – Whether significant possibility jury acting reasonably would have acquitted had new evidence been before it.
Words and phrases – "compelling", "fresh evidence", "highly probative in the context of the issues in dispute at the trial", "second or subsequent appeal", "substantial", "substantial miscarriage of justice".
Section 353A(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA") confers a novel jurisdiction on the Full Court of the Supreme Court of South Australia to determine a second or subsequent appeal by a person convicted on Information[1]. The jurisdiction is conditioned on the Full Court's satisfaction that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. A second or subsequent appeal may only be brought with the permission of the Full Court[2]. The appeal may only be allowed if the Full Court is satisfied that there was a substantial miscarriage of justice[3].
By special leave given by Kiefel CJ and Nettle J on 10 February 2017, the appellant appeals against the Full Court's refusal of permission to bring a second appeal against his conviction for the murder of…
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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Details
AGLC
Van Beelen v The Queen [2017] HCA 48
Case
[2017] HCA 48
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for permission to bring a second appeal against a conviction for murder. The appellant, Van Beelen, sought to introduce new evidence concerning the estimated time of death of the deceased, Deborah Joan Leach. The Full Court of the Supreme Court of South Australia had previously refused permission to appeal, finding the new evidence, while fresh, was not "compelling" as required by s 353A(1) of the *Criminal Law Consolidation Act 1935* (SA).
The central legal issues before the High Court were whether the new evidence was "fresh and compelling," whether it was in the interests of justice to consider this evidence on appeal, and whether the admission of the original expert evidence regarding the time of death had occasioned a substantial miscarriage of justice. The Court was required to assess if the new evidence was reliable, substantial, and highly probative in the context of the issues disputed at trial, and if there was a significant possibility that a jury, acting reasonably, would have acquitted the appellant had this evidence been available.
The High Court determined that the Full Court had erred in refusing permission to appeal. The Court found that the new evidence met the criteria of being both fresh and compelling, and that it was in the interests of justice to consider it. However, upon considering the new evidence, the High Court concluded that it did not disclose a substantial miscarriage of justice. Therefore, despite finding that permission to appeal should have been granted, the appeal itself was dismissed.
Orders
Orders of the court
1. Summons filed 9 August 2017 dismissed.
2. Appeal dismissed.
Background
Background to the litigation
By special leave given by Kiefel CJ and Nettle J on 10 February 2017, the appellant appeals against the Full Court's refusal of permission to bring a second appeal against his conviction for the murder of Deborah Joan Leach. The Full Court (Vanstone and Kelly JJ; Kourakis CJ dissenting) determined that the evidence on which the application was based, while fresh, was not "compelling". For the reasons that follow, it was an error to refuse permission to appeal. The evidence meets the criteria of being fresh and compelling and it is in the interests of justice that it be considered on appeal. Consideration on appeal, however, does not disclose that there was a substantial miscarriage of justice and so the appeal must be dismissed. Background facts and procedural history Deborah, a fifteen year old school girl, was murdered on 15 July 1971. She was last seen alive at around 4:00pm that afternoon running down a track that led to Taperoo Beach. Her body was found buried under a layer of seaweed on Taperoo Beach at around 4:20am the following morning. The autopsy revealed that she had died of drowning and that her body had been sexually interfered with after death. Only a handful of people were known to have been present on Taperoo Beach on the afternoon of 15 July 1971. The appellant was one of them. At 4:00pm his car was parked between some bushes adjacent to the track on which Deborah was seen running. The appellant left Taperoo Beach not later than 4:30pm. On 29 July 1971 he was interviewed by the police and he denied any knowledge of, or involvement in, Deborah's death. He agreed to the police taking possession of, and examining, the clothing that he had been wearing on the afternoon of 15 July 1971. Among the items taken by the police was a red and black woollen jumper. The fibres of that jumper matched fibres found on Deborah's singlet. Two brown fibres on the appellant's red and black jumper matched the brown fibres of Deborah's jumper. In October 1971 the appellant was charged with Deborah's murder. Following a lengthy trial in the Supreme Court of South Australia, on 19 October 1972 the jury returned a verdict of guilty of murder. The appellant successfully appealed against his conviction and a new trial was ordered[4]. [4]R v Van Beelen (1973) 4 SASR 353. The second trial commenced on 16 April 1973. The prosecution case was circumstantial and depended on the fibre evidence and the fact that the appellant was one of the few male persons with the opportunity to have committed the offence. On 12 July 1973 the appellant was again found guilty of murder. An appeal against conviction was dismissed[5]. An application to this Court for special leave to appeal was dismissed[6]. [5]R v Van Beelen (No 3) (1973) 7 SASR 125. [6]Van Beelen v The Queen (1973) 47 ALJR 666 (note). A petition for mercy dated 5 February 1974 was submitted to the Governor and subsequently the whole case was referred by the Chief Secretary to the Full Court to be heard and determined as an appeal. The appeal constituted by the reference was dismissed[7]. [7]In the matter of a Petition by Frits Van Beelen (1974) 9 SASR 163. The application for permission to bring a second appeal
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ
(dissent)