Van Beelen v The Queen

[2017] HCATrans 137

[2017] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A8 of 2017

B e t w e e n -

FRITS GEORGE VAN BEELEN

Appellant

and

THE QUEEN

Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 22 JUNE 2017, AT 10.01 AM

(Continued from 21/6/17)

Copyright in the High Court of Australia

BELL J:   Yes, Mr Kimber.

MR KIMBER:   If the Court pleases, the Court was interested in having an aerial plan and I will take the Court now, this morning, through key aspects of that plan, through to photographs, and then move to the evidence of fibres as requested by Justice Nettle.

With respect to the plan, the Court will see immediately that there is a legend in the bottom right‑hand corner.  This is not the plan that was tendered at trial.  That has not been able to be found.  But, there is no reason to think that the aerial photograph itself is materially different.  But, the legend does refer to, for example, Sandercock, which is not a relevant issue in this appeal.

As a further preliminary, yesterday it was mentioned that there were sand dunes.  In the respondent’s submission, there were no sand dunes in this area.  What there were, as we will see, were mounds – for want of a better description – of seaweed on the beach and they are particularly well illustrated by the photos that I will come to later. 

There are two streets marked with a highlighter, one running parallel and part of a street running parallel to the beach.  That is Morea Street which was where the deceased lived.  If one looks to the far right‑hand side of Morea Street where it meets an intersection, that is where the school was.  The evidence of Hazelwood was that the distance from the school to the deceased’s home was about 300 feet.  That was the transcript at 144‑145.

There is an open paddock on this plan, or this area photograph, in front of Morea Street and then the street running closest to the beach, parallel to the beach, is Lady Gowrie Drive.  The paddock that the Court can see between Lady Gowrie Drive and Morea Street must be the paddock through which the deceased was seen moving with the dog by Mrs Hazelwood as she drove along that street at about 4.00 pm that afternoon.

The street perpendicular to the beach, or Lady Gowrie Drive, which is highlighted, is Marmora Terrace.  Marmora Terrace intersects with Lady Gowrie Drive, as the Court can see, and on the beach side of Lady Gowrie Drive the Court can see a building right on Lady Gowrie Drive.  That is the kiosk where Mr Tajak worked.  South of the kiosk, and south is to the right of this plan – south of the kiosk there is a flat area on the beach side of Lady Gowrie Drive.  That is what is sometimes referred to in the evidence, as I understand it, as the car park.  The Court will see ‑ ‑ ‑

BELL J:   The surf lifesaving club?

MR KIMBER:   I will come to that, your Honour.  The Court will see two dots roughly below the kiosk, one a red coloured dot between two darker areas which are bushes, and to the left of that the Court will see a building, that is the surf lifesaving club.  The Court will see further west, working towards the water, a pink dot.  That is the approximate location of the body of Deborah Leach at about 4.00 am that morning. 

The evidence was that the distance from the edge of the surf lifesaving club ‑ as I understand it, the edge closest to the water ‑ to the body was about 592 feet.  That was the evidence of one of the police witnesses at page 390 of the transcript.  There is no measurement, as the crow flies, from the deceased’s home to the location of her body.  However, there was evidence from one of the police officers of the different distances measured, for example, starting at the deceased’s body to the position of the car – which is represented by the red dot – what appears to be a diagonal direction towards the car park and then from the car park through the paddock, and that was about 2,200 feet. 

There was no dispute that one could see from the area of the seaweed – that we will come to – through to, really, the front window of the house of the deceased because, on the course of the view, Mr Johnston, the prosecutor, pointed out from the body all the way back to the house.  So, there was no landmass or any other building which impeded a view to that general area.  Of course, it was only the dog, described as playing on the seaweed, that Mrs Leach, senior, saw that afternoon.  To give further context, can I then take the Court to what exists of photographs that are available as tendered at trial?  

BELL J:   Just before you do that, Mr Kimber, just for my benefit, can you explain, a place described in the evidence as “Largs”, is that to the right or the left of this?

MR KIMBER:   Largs is to the right, as I understand it, which is south.

BELL J:   South.

MR KIMBER:   And Outer Harbour is to the left which is to the north.

BELL J:   To the north.  And, Glenelg?

MR KIMBER:   Glenelg is to the south, further to the south than Largs.

BELL J:   Yes.

NETTLE J:   Can one see the police academy with the guns on this map?

MR KIMBER:   I would need to check that, your Honour, but it may be – one can see at the far right‑hand side – one can see at the very edge of the map, a number of buildings which are parallel to one another.

NETTLE J:   Yes.

MR KIMBER:   That may be the police academy but I would have to make some further check to be certain.

BELL J:   In any event, the police academy and the guns were to the south.

MR KIMBER:   To the south, that is, that is ‑ ‑ ‑

MR BORICK:   That is the academy.

MR KIMBER:   Mr Borick tells me it is the academy and, for the present purposes, I am happy to accept that.  Can I take the Court, then, to the photographs that have been able to be obtained after this long period of time?  They are within volume 11 of the appeal books and they are immediately after page 2807.  There are two sets of photographs, P18 and then P42.  Can I take the Court to the first of those which is P18(a)?  Blurry, but in the front of the photograph, the Court will see – I will describe it as a tripod – that is the position of the body, as found.  The Court will see a number of people standing to the left of what looks to be a four‑wheel drive, in almost the middle of the photograph.  If one goes to the left, one can see a building to the left, that is the surf lifesaving club, and as I said, a distance of about 600 feet from the body.  So, behind the photographer here would be the water, in effect.  This is evidence from 368 to 369.

The next photograph, 18(b), again has that marker on the seaweed with the tide obviously well in.  This is looking north along the beach.  Although very difficult to make out, at the very top of the horizon, one can see a structure that would appear to be the ship, the Galileo, which is mentioned in the evidence, at Outer Harbour, in the distance.  The next photo, 18(c), taken on the evidence at about 8.00 am of the morning of the finding of the body – that is transcript 372 – is again just another view looking north.  Again, we can see the position of the body as in (d).

Photo 18(e), on the evidence at 373 to 375, is taken slightly west from where the body was found.  So, the tide must have gone out, to a degree.  One can see some beach then in front of the photographer.  The water will be behind the photographer.  Just to the left of the middle, one can see a larger building, that is the lifesaving shed, again.  One can see then, to the right of the lifesaving shed, what appears to be a gasometer, or similar, in the distance.  Then, two pine trees to the right of what I will call the gasometer – very difficult to make out but between the two pine trees is the kiosk. 

That then takes me to the next of the photographs, P18, it appears to be (g) as marked.  This is a photograph looking west towards the beach and one can see the kiosk – that is the structure with a car to the right‑hand side.  The road that we can see part of immediately to the right of the photograph and running away and towards the kiosk is Marmora Terrace that I mentioned before, one of the two streets which is highlighted, the one perpendicular on the plan to the beach.  The road, as I have said, running between the photographer and the kiosk, running north/south that would be, is Lady Gowrie Drive. 

There is a pine tree immediately to the left of the kiosk as we look at the photograph.  Then, there is another pine tree a little bit further to the left and then a third.  Between the two first pine trees is the track leading to the beach if one turns of Lady Gowrie Drive.  So, where a car would turn if it wanted to access the beach or access the area of the surf lifesaving club.  One cannot see the surf lifesaving club in this photograph, even though it is further west; it appears to be hidden behind the kiosk.  There is evidence about these things at about 384 of the transcript.

Can I then go to P18(7)?  There is evidence about this photograph at 384 to 385.  This is taken on that entrance from Lady Gowrie Drive towards the beach that I just mentioned which I described as being just left of the kiosk, what would be south of the kiosk.  It is taken on what is still – the photographer would be standing on what it still the bitumen but one can see about, perhaps, half, a third way up the photograph, the bitumen runs out and it becomes dirt and the Court can see a number of what appear to be car tracks.

The building to the right is the surf lifesaving centre.  There are at least two bushes that can be seen to the left of the surf lifesaving centre.  They are the bushes within which the car of the appellant was seen by the fishermen as they left the beach and the position that the appellant admitted that he had parked his car at about 4.00 pm that day.

He also said or accepted that his car would not have been able to have been seen from Lady Gowrie Drive.  So he has driven his car away from the car park that the Court sees on the plan, which is quite a substantial car park, and he has chosen to drive his car off the bitumen and much closer to the beach.

There are what appear to be two tracks running towards the beach, as described in the evidence.  There is one between the lifesaving centre and the first of the bushes, so what might be described as the north side of the bushes, as described at 385.  And there would appear to be a second running to the left or just to the south of the bushes.  That might be important because the evidence of the kiosk owner, Tajak, the Court might recall that Tajak said that he saw a girl with a dog running and he had looked through a gap.  The gap that he looked through appears to be described by him as the south‑west gap which would be the one immediately to the left of the bushes.  And he said he saw a girl running north on the beach, as he looked through that gap.

So that would have taken her, as was referred to in the trial at different points, at least past the line of where his car was in the bushes.  That evidence from Tajak is 238 to 239.  Tajak described a third track going south.  That is not clear in this photograph, nor is it apparently clear in the plan, but it would perhaps be some sort of access point that ran more towards the car park, given it was described as going south.

If one returns to the plan and to the two dots, in particular the red dot, the one said to represent the approximate position of the car, as described in the evidence, the Court can see a fork, if you like, as one comes off Lady Gowrie Drive.  We can see a fork, one part closest to the surf lifesaving centre and the one running slightly diagonal and what appears to be on the other side of the bushes.  That might give the Court some perspective or more information as it looks at P18(7).

P18(8) is described at transcript 382 and perhaps does not add much to what we have seen in earlier photographs but, slightly to the left of middle as we look at the photograph in the distance, there is the larger building, which is the surf lifesaving centre and what appears to be a gasometer in the distance and then immediately to the right, although very difficult to see, the kiosk.  One might see, for example, in this photograph that there are no sand dunes or anything of that nature.

P18(9), it is not easy to make out but about in the middle but to the right of the middle is the marker which, on the evidence at 383, it perhaps does not matter, has been moved a little because of the tide from where the body actually was and it is moved a little due east, according to the evidence.  This, again, is taken from south of the body looking north towards Outer Harbour.

P18(10), transcript 383 and 384, is a view looking west or south‑west.  One can see at the extreme left of the photograph that there is a car.  It is very difficult to make out on the copy – and it perhaps does not matter given the other photographs – but the position of the body is approximately a few centimetres to the right of the car and down towards the photographer.

P18(11), obviously enough, a photograph looking west towards the water.  P42, which is a collection of photographs, are photographs taken of the body in situ.  P42(1), obviously enough, one can see the body of the deceased, but that is not how it was as it was found in the sense that only really the foot could be seen at the time that it was found.  So there has been, at least, some movement of seaweed by that time.

P42(2), again, one can see the body of the deceased in the middle of the photograph, as can one in P42(3).  Now, importantly, I would ask the Court to note, as described in the evidence, that the jumper is pushed up, exposing the singlet.  And that assumes some considerable importance because of where the fibres were located – the red and black fibres.  They were located on the top of the front of the singlet.  So, on the prosecution case, in the course of the assault, perhaps unsurprisingly, not only is the lower clothing all but removed completely from both legs in order for the sexual act but the brown jumper worn by the deceased is pushed up and the singlet is exposed.  I will come back to this later, but the brown jumper had particular fibres.  There were three brown fibres found on the red and black jumper belonging to the appellant and two of them had no dissimilarities at all on all of the testing of two fibres sampled from the jumper as test samples.

P42(4) just shows another view of the body, obviously with some seaweed removed, as does 42(5).  The seaweed is obviously of significance and I will come back to this.  But the appellant’s jumper, the black and red jumper, when examined, had seaweed in it.  This was despite him saying on a number of occasions that he had walked on the beach on what I will describe as the high side or the Lady Gowrie Drive side, on the sand and away from the seaweed.  He said at one point he had not come within any closer than 20 yards of the seaweed and he said at another point that he had not sat on the seaweed or anything like that.

The next photo simply shows another view of the body, but one can see two things.  One is the jumper plainly pushed up above the singlet and, indeed, over the area of the mouth of the deceased.

Can I move then to P42(8).  The Court will see two men standing in the photograph and about in the middle of the photograph in front of them a pale area in the photograph.  That is obviously part of the body of the deceased and I have already made reference to the fact that it was almost totally concealed by the seaweed.

P42(9) shows three items within the seaweed:  a boot, belonging to the deceased; a dog lead; and the deceased’s transistor radio.  Now, at transcript 309 the jury were told that the body was slightly south of the location of these items and about 20 yards away, adjacent to where the deceased was.  And that might be significant to this suggestion that the deceased had been killed somewhere else and either brought back to this point or washed up on the beach at this point.

First of all, if the true killer had inveigled this child away and killed her, why would he bring her back to this location to bury her?  Why would he not leave her wherever it was that he had killed her?  Secondly, what a remarkable coincidence that her items that she would have been carrying with her – the lead, for the dog that was free; her transistor radio; and her boot – would end up in this very location.  On the prosecution case, the suggestion that she was not killed in this very area and then covered with seaweed is fanciful.

P42(10) just shows another view of the body, and P42(11), although it is very difficult to make out the number in that photograph, shows the body of the deceased rolled – I will describe it as forward for the purposes of taking a photograph of her back.  And then the Court will see from thereon a number of photographs taken at the mortuary of the deceased.

Can I then turn to your Honour Justice Nettle’s question but really evidence that lies at the heart of the respondent’s submissions about this case and it is the evidence of the fibres.  First of all, the police found the following fibres.  They found 19 red fibres and 17 black fibres on the upper part of the front of the deceased’s singlet.  And, as I have said, they found three brown fibres on the black and red jumper belonging to the appellant, the jumper that he said initially was the one that he was wearing, but he later departed from that at a different point.  That evidence is transcript 798 – that is, the location of the fibres.

As to these red and black fibres, the appellant conceded at trial that the red and black fibres had not come from the clothing of the deceased.  There was a considerable body of evidence about what other clothing she was wearing, what it was made up of and so on.  And that, ultimately, led to the concession that I have referred to at 2607, 2625, 2657 and 2665.  There is also a relevant reference in the summing‑up at 2838.  This is obviously important to establish whether or not her environment, as I will describe it, could have been the source of these red and black fibres.  Now, there was that concession but there was further evidence about that.

EDELMAN J:   So it was conceded then that the black fibres could not have come from her trousers?

MR KIMBER:   Correct.  There were no red fibres matching those on the singlet found at a search of her home.  That is the evidence at 873 and 907.  Some black fibres were found at her home but no black fibres were found at her home in conjunction with red fibres.  That was the evidence at 873.  So the black and red fibres had come from a source foreign to her.  They were on her upper singlet, her jumper having been pushed up, so in the obvious location if someone is sexually assaulting her and penetrating her in the way that no one disputed occurred.  And there was evidence that clothing is particularly susceptible to the transfer of material, transcript 766.

The appellant was first questioned by the police on 29 July and there is reference to what he said in the respondent’s submissions at 15.  I will pick out the relevant aspects.  He was asked on that day what clothing he was wearing.  He said:

Black trousers, a red or blue jumper ‑

Later that day, police went to his house, against the background of telling him that they wanted the clothing that he was wearing on the day.  And, on the police evidence, he produced to them the red and black jumper.  They did seize a blue jumper from within the house, but they seized that without any suggestion from him that it might be it.  He produced the black and red jumper.

BELL J:   Did they seize other jumpers apart from the red and black jumper and the blue jumper?

MR KIMBER:   I believe it was just the two, your Honour, but I will check that through the course of this morning.  I have referred already to the fact that it was examined and seaweed was found within it, despite him referring to where he had walked on the beach.  He said that he had walked on the beach only in the area between the seaweed and the land, that is, on the sand.  He said that in his record of interview, exhibit P28, which the Court will find at 1128 of the appeal book.  He said it in his evidence at the first trial which was then read in the trial the subject of this appeal – 2245 to 2246 and 2320.

During the course of the investigation the police took him to the beach and the police asked him to walk the route that he said he had taken on that day on the beach.  He took them on a route away from the line of the seaweed, consistent with what he had first said on 29 July.  That was the evidence at 2210 to 2214.  He said he had not sat down on the seaweed.  That was both in the interview at transcript 1128, and in the conversation on the occasion of the trip to the beach with the police, 2211, 2216 to 2217.  In his evidence at the first trial, read in this trial, he said the closest he got to the seaweed was about 20 yards – transcript 2324 – and there was some evidence that the jumper also had shell material in it; that was at 984. 

Can I turn then to some further evidence about the 19 red and the 17 black fibres that were found on the singlet?

EDELMAN J:   Just before you do, why does the upper part of the singlet assume more importance than the lower part, apart from the fact that the red and black fibres were found on the upper part?

MR KIMBER:   I am sorry, your Honour, I did not mean to suggest necessarily upper or lower had any greater significance than any other part.  It is really that it is on the front of the singlet, given that she was penetrated in the way established and given the position of her body.

EDELMAN J:   Is the evidence summed up by the trial judge then at 2836 correct, where the trial judge says at the bottom front of the singlet there are:

22 or 23 bright red fibres, one purple/red fibre, 25 wool black fibres, fourteen green, fourteen brown, six blue, one mauve.

MR KIMBER:   My memory is, your Honour, that that is a reference to obviously fibres taken from that area of the singlet, but were then examined to see whether they might be consistent with coming from her own clothing ‑ and at least some of those were – to be distinguished from the 19 black, 19 red and the 17 which were in a different location and which had not come from her clothing.

EDELMAN J:   And which of the fibres on the bottom front of the singlet, or the other colours, were eliminated as potentially having come from her clothing?

MR KIMBER:   I will have to come back to that, your Honour.  I will have to come back to that because it is the 19 red and the 17 on the upper that are indistinguishable from the black and red jumper.  It is not the fibres on the lower part of the body that have any positive weight on the prosecution case, nor detract from the prosecution case, because they have an explanation as being a source from her environment, for want of a better description.

EDELMAN J:   So all of the ones on the bottom front have an explanation as a source from her environment?

MR KIMBER:   At least as a possibility, as I understand it, your Honour, yes.  Police sampled the black and red jumper, and there is evidence about this at 982, and they did that using what was described as durex, what might be described as tape lifts, so a number of places of durex onto the jumper to then remove fibres at random in that sense.  In that process, obviously done a number of times, there were 1,105 red fibres and 1,083 black.  So the ratio of the sampling was 19 red to every 18 black, to be compared to what was on the singlet, which was 19 red to 17 black, so a very close correspondence in terms of ratio.  The 19 red and the 17 black on the singlet were then compared to samples taken from the black and red jumper and the nature of the testing and what it showed is obviously of central importance and I will come to that.

But before I do, there were three brown fibres found on that black and red jumper and two of those were indistinguishable to samples taken from her brown jumper.  That is the evidence at 941 and 946 and 2146 to 2148, and 2155.  The most convenient way to then deal with the 17 black and 19 red is aided by the evidence of the appellant’s own expert, Fish.  The appellant called his own expert in the trial about the fibres who reviewed the work that was done by the prosecution witnesses and he also did further testing of his own – chromatography – and that further testing, as we will see, again found similarities and no dissimilarities.

Can I take the Court to 2514 of the transcript – perhaps 2510 to begin with, because 2510 from about line 15 through to about line 23 gives the overall summary of his work, which is then supported by the evidence about that work in the many pages before.  There is reference there at about line 17 to the:

chromatography led you to the opinion that the red fibres from P71 . . . match

. . . 

And that the black fibres –

also match.  Can I then move to 2514 which, as I said earlier, provides a convenient summary, in my submission, of exactly what the testing was, and I will give some references then to the prosecution evidence about it.  So, beginning at line 12 there is a question:

And as a proper procedure the first thing would be to compare them microscopically.

Secondly, looking for:

any distinction in colour . . . between the blacks and the reds from the different sources.

So, there are those two aspects, and they had matched in those ways on the evidence of Crisp, at 2126 to 2127 and 2145 to 2146, and Cocks at 945.  So here is their expert saying that is a very proper thing to do and they had matched in that way, according to the evidence.

The third test is referred to at about line 23 for the first time, the chemical testing.  This was the testing done by Crisp at 2144 to 2145 and 2146 that showed similarity and no dissimilarity.  At about line 33 to 35, an agreement that these are “perfectly valid scientific tests”, importantly, “each one in its own right”, so it is not one test; it is one test with a number of components.  We can see that over at 2515 at the top of the page.  It actually involves four tests within that.  Then at line 5, there is reference again to the testing that was then done by Fish, the chromatography.

At line 11, that that actually involves a number of tests; at about line 12, first pyridine and water ‑ that is one test – through to about line 16.  From line 26, or really line 29, the colour of the resulting fibre is another result that is important from that test, and available.  So this chromatography we see at line 33 involves three separate tests within it, or points of comparison in the same process, and the evidence earlier given was that they were similar in every respect and no dissimilarity and that is why I took the Court to the summary of that at 2510.

But then there is a further aspect to this test at the top of 2516, “the chromatography itself” which the witness agrees at about line 6 itself involves – had a number of components within it.  Then we see from about line 8 through to about line 25 that it actually involves five separate components.

So, that is all of the testing that was done.  No contest about the results on the evidence.  Can I take the Court to 2517 at line 15 about whether this is very comprehensive testing?  At line 24, or really line 21:

And taking the whole of that work –

so going back to:

the microscopic examination, the chemical testing . . . the chromatography . . . a very large number of points of similarity between the reds and the blacks . . . and no significant dissimilarity.

At the very bottom of the page, perhaps about line 28, there is reference to the ratio sampling, I will describe it as.  This witness agrees that that is a legitimate and appropriate thing to do.  Then from 2518 from about line 6, there is then a further summary pulling all of this fibres evidence together from about line 6 through to the following page, 2519, at about line 9.  Then from line 10 on that page there is discussion about fibres on the slacks and so on but, as I have said, there was a concession in the closing address that the black and red fibres that I have been talking about had not come from her clothing, so I do not need to take the Court through that.

So, we have this.  We have, in my submission, an irresistible conclusion that the 36 fibres have been left by the – have come from an environment foreign to her.  They are beneath her brown jumper because they are on her singlet.  They are only consistent, in my respectful submission, with being left by the attacker.  She has been attacked – or there are no dissimilarities and there are a number of similarities in the comparisons, and there are a number of different comparisons.

The inference is compelling that she has been attacked by a man wearing a black and red jumper.  The appellant was wearing – owned a black and red jumper and at one point said that was the jumper that he was wearing and offered it as the jumper that he was wearing.  He was on the beach between 4.00 and 4.30 and he saw no one else.  That was his evidence.  How many other men wearing a black and red jumper of the very same properties can have also been on the same beach as this girl?

BELL J:   Coming back to the significance of Dr Manock’s evidence in the context of the issues at the trial, as I understand it, the way the prosecutor put his submissions to the jury, it was to accept Mr Borick’s submission that the deceased had run down the track near the bushes where the accused’s car was located and that her body had been found a distance from there but that Mr Borick had put her as running down that track between 4.00 and 4.10 in the afternoon.  The inference that the jury was invited to take was that she had been attacked close to where her body had then been covered ‑ ‑ ‑

MR KIMBER:   Yes.

BELL J:   ‑ ‑ ‑ the likelihood being that that had occurred sometime shortly after 4.10.

MR KIMBER:   Because she was in that very area at that very time.

BELL J:   That was the inference that the jury was being invited to take and, on your submission, to infer other than that she was killed close to where the body was found, was fanciful.

MR KIMBER:   Yes.  I was asked a moment ago by your Honour Justice Bell about other jumpers being collected from the appellant’s home.  There were in fact two others; one was a black ‑ brown and black mohair jumper, so different colours in combination at least, and different construction of fabric, a dark grey pullover and other clothing that was not jumpers; that is transcript 914.

BELL J:   So that though ultimately there was an issue about whether the accused had volunteered only that he was wearing the red and black jumper or whether he had said he was wearing a red and black jumper or whether he had said he might have been wearing the blue jumper, the fact of the matter is, the police collected a number of jumpers.

MR KIMBER:   They did, they collected four jumpers from his home, one of which was the red and black.  Your Honour Justice Edelman asked about the fibres on the bottom of the singlet, they are summarised at 856 to 860.  There were 23 red, one of which was a purple red; 25 black wool, 14 green, all similar to the slacks; 14 brown, 10 of which were similar to her own jumper, four to her pants; six blue which are all similar to her pants and one mauve, and bear in mind her slacks were tartan, so ‑ ‑ ‑

EDELMAN J:   Were there not also a number of white fibres and some yellow fibres also found?

MR KIMBER:   There may have been at least a number of white fibres and there was certainly some evidence that the white fibres were not of significance, one way or the other, because white fibres are very, very common as compared to some of these other fibres and, of course, she was wearing a white singlet but, again, I need to check that carefully, your Honour.  I do not want to mislead the Court.

Can I turn then to two matters that arose yesterday and they relate to the summing‑up.  The first was a matter raised by your Honour Justice Edelman in relation to 2817 which is within appeal book 12 and your Honour directed everyone’s attention to about point 7 on the page, the sentence:

To try to fix a time of death more precisely we have to consider the evidence of Dr. Manock the pathologist.

We have to look, in my submission, at the significance of that in the context of the whole of the summing‑up.  Now, the first important aspect of that context is the paragraph immediately before because the time that is being referred to in the paragraph immediately before is a 12‑hour period from 4.00 pm to 4.20 am.

So, the reference to “try to fix a time of death more precisely” is, at the moment at least, in the summing‑up, more precisely than that 12‑hour period.  He begins with the evidence of Dr Manock on that question but that is not the only evidence that the judge refers to that sheds light on this issue.  So, he discusses the evidence of Dr Manock and Dr Pocock through 2818 and then at 2819, the reference that the Court will be familiar with at the very top of the page:

you could not be certain that Debbie died before 4.30 p.m., although you might this probable.  However, you must consider his evidence and the strictures made upon it –

So, he is not putting that they will find on the evidence on Dr Manock alone that she was dead at 4.30; he is certainly not putting that.  But then he goes on to consider at line 6 on that same page:

You will, when considering his evidence, think also of other evidence, such as Mrs. Leach’s evidence, which assists in fixing the time of death.

He makes some observations about the rigor mortis evidence which was very general, and then at 2820 from about line 7, he refers to this evidence of Mrs Leach, looking out the window and so on.  Now, there was no contest about Mrs Leach’s evidence.  Importantly, at line 14 through to about 18, he refers to:

before 5 p.m. and probably before the time that the dog was playing alone ‑

because that is what she saw from the window at about 4.40 or 4.50.  So, the reference earlier at 2817 is just the commencement point of a much longer direction about the evidence going to the issue of time of death that actually concludes with:

you may be also satisfied that the attack was before 5 p.m. ‑

That is the way the case was left to the jury.  Can I take the Court as well to 2915 ‑ ‑ ‑

EDELMAN J:   Does it essentially amount then to this, that with Mrs Leach’s evidence, the jury may have been satisfied on the trial judge’s direction that the attack was before 5.00 pm and probably sometime before that, potentially around 4.50, but then with Dr Manock’s evidence the jury might think it probable that she had died before 4.30?

MR KIMBER:   On Dr Manock’s evidence alone ‑ ‑ ‑

EDELMAN J:   Yes.

MR KIMBER:   ‑ ‑ ‑ but on Dr Manock’s evidence alone they might think that is probable ‑ ‑ ‑

EDELMAN J:   Yes.

MR KIMBER:   ‑ ‑ ‑ but on the whole of the evidence, he was plainly leaving to them consideration that she was still alive until much closer to 5 o’clock ‑ ‑ ‑

EDELMAN J:   Yes.

MR KIMBER:   ‑ ‑ ‑ and that is important if we are considering the significance in this trial of the evidence of Dr Manock because it is not left to the jury on the basis, it is Dr Manock or it is nothing.  In fact, quite the contrary, even though Dr Manock’s evidence has been discussed at some length in the summing‑up, the judge plainly allows for 5 o’clock.  There is the passage at 2915 which is towards the very end ‑ I think from memory this may come against the background of some discussion – it does ‑ after the jury had been sent out for the first time and a request from the defendant – 2915 at the top of the page:

I want you also to consider the matters that I have put to you about the time of death.  Here I include not only Dr. Manock but Dr. Pocock.

So, the very last words to them include a reference to Dr Pocock who, of course, had said that you cannot estimate time of death to within one hour.  He refers to the absence of a useful guide from body temperature and he refers to:

possible reservation as regards complete accuracy in Dr. Manock’s estimate.

BELL J:   What is that reservation to which he refers?

MR KIMBER:   The respondent agrees with the majority in the court below who deal with this at 147 of their judgment; yes, 147.  The paragraph begins:

Just before sending the jury out –

and the court then extracts the very passage that I have taken the court to and the court says:

It is not entirely clear to us what reservation was being referred to.

Then in the fourth sentence:

It seems that the relevant reservation –

BELL J:   Yes.

MR KIMBER:   The other approach that might be taken to that is perhaps illustrated by the approach of the Chief Justice in the court below who does not use this very aspect of the summing‑up as a reference but if I take the Court to paragraph 44 where in the third of the paragraphs that are quoted there, his Honour refers to the earlier passage about:

you could not be certain that Debbie died before 4.30 p.m., although you might think this probable.

And he refers to the “qualifications and strictures” as being those in the paragraph above.

BELL J:   Yes.

MR KIMBER:   So, time of lunch, what the lunch was, what residue those ‑ which were plainly variables and assumptions.  I will come in a moment to the direction at 2885 which attracted some attention yesterday but before I do, just to answer your Honour Justice Edelman’s further questions about the fibres, I said that there was a lack of significance attached to fibres on the lower part of the singlet because they could have come from the slacks; that was the evidence of Fish at 2511 and there was some white fibres from the top of the front of the singlet obtained, 799 to 800 and 803, but it was said by the prosecution witness that white fibres are not used because they are extremely common, transcript 804.

Can I then take the Court to 2885 and the direction about which there was some discussion which is in the final paragraph, satisfaction “beyond reasonable doubt” about “chest to chest contact” and, in effect, as I understood the exchanges, was that a direction directed towards ‑ based upon the fibres evidence alone or is it the fibres evidence along with the balance of the prosecution case.

There is, I have to concede, a difficulty with seeing it as a direction limited to the scientific evidence alone for at least the following reasons.  In the middle of the page there is specific reference to opportunity ‑ ‑ ‑

EDELMAN J:   Twice.

MR KIMBER:   It is difficult for me to make the argument that that opportunity is restricted to just the issue of the fact that he was on the beach, as opposed to the fact that he was on the beach and the limited opportunity for others, depending upon timing.  There are two earlier important references. 

BELL J:   Just before you move to that, how is it suggested the jury might have reason to satisfaction beyond reasonable doubt of chest to chest contact between the deceased and the accused unless it was on the basis of the fibre evidence?

MR KIMBER:   Certainly on the basis of the fibres evidence. 

BELL J:   So that, absent satisfaction beyond reasonable doubt of chest to chest contact, the jury were directed to acquit?

MR KIMBER:   Certainly.  There is no doubt about that.  Can I take the Court to almost the very beginning of the summing‑up, where “opportunity” is used on two occasions in the summing‑up.  I should take the Court to 2809, where the judge, commencing at the bottom of the page, refers to a number of aspects of the evidence that the Crown relies upon for guilt.  Then over on 2810, the sixth point:

the accused is one of a very small group who had the opportunity . . . who were on the beach at the same time ‑

And then at 2811, at line 7:

the Crown case is . . . The accused not only had the opportunity ‑

et cetera.  And then at 2841 there is also a very important aspect of these directions about the fibres.  At line 20:

Let us now consider anew the scientific evidence ‑

What the judge appears to be doing is treating the fibres as the scientific evidence.  He does not use that term, on my reading of the summing‑up with respect to the evidence of Pocock and Dr Manock, so he appears to be focusing on the fibres with respect to scientific.  He refers to four mental steps involved, and that direction then will go on to the following page, down to about line 30, and the Court will read all of that for itself.  Ninety‑nine per cent of that is just about the fibres and about nothing else and whether a conclusion can be drawn beyond a reasonable doubt from the fibres, other than at 2842, at line 15:

when considered in conjunction with all the clearly proved evidence in this case –

So the judge is inviting consideration in terms of what conclusions you will draw from the fibres evidence, you will draw them in light of the whole of the case. 

BELL J:   This summing–up predated the decision of this Court in Shepherd by some time, but effectively the approach that the judge took was in the context of a circumstantial case to make it a requirement as an indispensable matter to be proved in reasoning from all the circumstances to guilt that there was chest to chest contact.

MR KIMBER:   Yes.  What is vitally important further, in my submission, is that the strand of evidence that I will refer to as the fibres evidence, so that strand of the prosecution case, is not itself logically diminished by time, so the extension of more time and more opportunity for others, the significance of that evidence viewed in isolation is not diminished at all.

NETTLE J:   But it is augmented by opportunity.

MR KIMBER:   It is augmented by opportunity, and that is why I will need to come to it in a moment.  That is why, in my submission, the summing‑up is very important in terms of the judge talking about 5.00 pm or thereabouts, and it will be very important to come to what even does an additional 20 minutes mean in the particular circumstances of this case.  So if she was dead by 5 o’clock, and the circumstantial case that she was dead by 5 o’clock is overwhelming.  She has been separated from the dog, the mother goes to the beach, is able to retrieve the dog, calls out to her and cannot find her daughter.  Her daughter does not respond, even though she cannot have been very far from where she was calling from.  She was only, was it, 600 feet from the surf lifesaving centre, and her mother went onto the beach on two occasions to look for her.  So she must have been dead by about 5 o’clock, or before, really, because the mother is going to the beach before that.

So this additional 20 minutes or so, what additional opportunity beyond Manock’s estimate, what additional opportunity does it really provide?  First of all, it was actually considered at the trial, given the context of the summing‑up, but what further opportunity does it provide?  Twenty minutes might be very, very significant on a busy beach.  This was not a busy beach.  There was evidence about the paucity of people on this beach before 4 o’clock, between 4 o’clock and 4.30, and after 4.30.  The evidence before 4 o’clock or thereabouts, or 4.20, came from those witnesses – the prosecution called all of the witnesses who were known could be identified as being on the beach.  They were accounted for or saw a very limited number of people.

When the mother went to the beach – and bear in mind she was looking around, because she was looking for her daughter – she saw no one when she first went to the beach.  When she returned a little bit after that she saw a young girl and two men who were on horses in the water, no one else. 

What about the time between 4.00 and 4.30?  First of all, the fishermen, when they left the beach, saw no one ‑ that was about 4.20 – and the appellant was there for half an hour, on his account, and he said that he saw no one.  This was a July day on this particular beach in Taperoo.  Yes, it was a beach that was used by people, because we know ‑ we had evidence about that – but a very small number of people who accounted, on their evidence, for everyone that they saw on the beach. 

Can I turn then to the final aspect of my submissions, which I can perhaps truncate a little, given the detailed attention that I have given to the evidence in the course of this morning.  It is this third issue that I referred to when I started, which was the application of the fresh evidence to the construction.

In my submission, the fresh evidence is not substantial when three things are considered.  The first is the nature and extent of the contest at trial with respect to the forensic pathology evidence of time of death.  The second is the civilian evidence that bears upon opportunity for another person to commit this offence.  The third is the nature and strength of the circumstantial case.  That third is not just the fibres, it is where he parked, where he parked so proximate to her, the fact that he saw no one else on the beach, the fact that he had seaweed in his jumper notwithstanding where he walked, and so on.

Given that this limb of the test, in my submission, looks at the ability of the new evidence to bear upon the question of a substantial miscarriage, it must be that the nature and extent of the contest at trial is relevant to an assessment of that question.  There can be no doubt that there was a fierce contest about Dr Manock’s now impugned evidence.  He was cross‑examined at considerable length, partly armed with the opinion that was coming from Dr Pocock, and also a number of scientific texts were put to him in the course of cross‑examination.  The Court will see that at 643 to 658, 676 to 693, 707, the cross‑examination, and the passages from textbooks, 676 to 678 again, 684 to 689 and 710 to 712. 

More importantly than that, the appellant called his own expert, Dr Pocock.  Dr Pocock clearly challenged the soundness of Dr Manock’s approach.  As I have said, Dr Pocock was mentioned in that very final direction to the jury before they went out.  What is important, in my respectful submission, is that he expressly gave evidence of the same ultimate conclusions that Professor Horowitz has given.  He said that estimating time of death from stomach contents was unreliable ‑2533.

BELL J:   Accepting that, Mr Kimber, you had a trial at which the government pathologist was saying in a confident way that one could be sure that the deceased was dead by 4.30.  Yes, the defence calls its own expert and puts that in issue, but it is not hard to imagine that the jury might have been influenced by the view of the government pathologist and not the hired expert for the defence.

MR KIMBER:   No.  I have to accept that, and that is why I accepted yesterday more than once, I think, that I have to accept, and I do, that it is reasonably possible that the jury acted upon Manock’s evidence.  I cannot make a submission against what I have just said.  But that will presumably be the case in every fresh evidence matter.  The possibility will exist always that the jury might have acted upon the now impugned evidence.

BELL J:   I am just at the moment looking at your construction of the concept of “compelling”.  Another way to look at these matters would be to acknowledge that this evidence met the tests of substantiality and highly probative in the context of the issues at the trial and that one would turn to a consideration of 353A(3). 

That brings me to the next matter I wish to raise with you, Mr Kimber, and it is this:  you submit that it would be extraordinary if one were to construe 353A as imposing in any sense a less stringent test than the determination of an appeal in an ordinary case in which fresh evidence is adduced. 

MR KIMBER:   Yes.

BELL J:   Can I inquire why that is so?  I am not suggesting that one would apply a less stringent test, but why does it have to be more stringent?  If fresh evidence comes to light and that fresh evidence gives rise to a significant possibility that a jury acting reasonably would have acquitted, why does it matter that it is the second or, for that matter, the third appeal, given that the evidence meets the test of freshness and has that capacity?

MR KIMBER:   It is difficult to see the room for any practical separation.  To answer your question, perhaps, your Honour, in a different way, if a court was of the view that there was a miscarriage of justice, would they ever not allow the appeal on the basis that it was not a substantial miscarriage of justice?  How could it?  Where would this line ever be drawn?

BELL J:   Yes.

MR KIMBER:   That is why the respondent has expressed it in terms of “at least”.  The reason for that is this: under section 353, the test is miscarriage of justice.

BELL J:   Yes.

MR KIMBER:   And Parliament has chosen to use “substantial miscarriage of justice”, presumably against the background of clear knowledge of what the ‑ ‑ ‑

EDELMAN J:   Except there was significant debate about whether the word “substantial” added anything, and the response to that debate was that substantial miscarriage of justice is a common formula that is used in the proviso, but your submission is that it is not used in the proviso sense, that understood properly with section 353 it is used more in a miscarriage of justice sense.

MR KIMBER:   Correct, correct.  Ultimately the court below – certainly Chief Justice Kourakis analysed this in a little more depth than the majority did.  I mean no disrespect by saying that.  But both landed on, for want of a better description, the 353 criteria.  If it is not a different test, the respondent still says the result of this appeal will be the same.

BELL J:   I understand that.

MR KIMBER:   It is only because it cannot be a lesser test, and that does not absolutely answer your Honour’s question, of course.  It cannot be a lesser test, and then there is this use of substantial.  But can I envisage a case in which the court came to the view there is a miscarriage of justice under section 353A, but it is not substantial?  Practically no, I cannot.

BELL J:   Yes, thank you.

MR KIMBER:   Part of where your Honour began, Justice Bell, might have been with do we need to go through the exercise of analysing whether it is substantial because are we not really more in the territory of a substantial miscarriage of justice, but all of my submissions about the facts are of equal importance wherever one plugs in the evidence, for want of a better description. 

Dr Pocock’s evidence about you cannot give an estimate of time of death of an hour like Manock, 2545, and he read from a number of textbooks that supported his position.  So the sting of his evidence is exactly the same, and so the respondent submits that evidence that simply tends to confirm an opinion that was already given will not be substantial or, at the very least, will not be sufficient to found a substantial miscarriage of justice if it turns out to be substantial.

This aspect was all that the majority in the court below required to knock it out on the substantial limb, but there are two further matters, in my submission, that strengthen the conclusion that the evidence is not substantial or that there is not a substantial miscarriage of justice.  The first is the civilian evidence bearing on opportunity, and the second is the nature and extent of all the other evidence probative of guilt. 

Now, the civilian evidence bearing on opportunity, in my submission, without going over it again, put the time of death at no later than 4.50.  So what we are talking about is an additional 20 minutes.  We are not talking about an additional 20 minutes in a vacuum or on a busy beach.  We are talking about 20 minutes in the particular circumstances of this case against the background of all the other evidence.  The additional 20 minutes does not diminish the appellant’s opportunity because he was on the beach from 4.00 until 4.30.

The additional evidence does not diminish the opportunity of anyone between 4.00 and 4.30 beyond what it was at trial.  It just adds an additional 20 minutes and, in my submission, that is not significant in the particular circumstances of this case given the paucity of people on the beach in the two hours before, the absence of anyone seen on the beach by the appellant or by the fishermen at points between 4.00 and 4.30, and the observations of the mother who was plainly not just attending at the beach to collect her dog but was looking for her daughter.

I have referred in the written submissions at 75 to 77 to the evidence with respect to people on the beach and so on so I will not take the Court through all of that.  I have already made the submission as well that the impact of this fresh evidence is confined at best to one strand of the prosecution case and additional time does not impact upon this fibres evidence which in and of itself, in my submission, was compelling.

The respondent submits in the written submissions at about 88 to 90 that the evidence is not highly probative really for the same evidential reasons as it says it is not substantial or that the ultimate question fails.  The reasoning of the court below in the majority, in my submission, is at 163 to 164 and it relies upon two aspects which I have already touched upon in other contexts.  The substance of the evidence is of a largely similar effect.  The sting of it was exactly the same as Pocock’s and the expert evidence had to be viewed in light of other evidence of time of death, evidence not based upon assumptions, not based upon qualifications of the nature that the judge appears to have obliquely been referring to at the end.

As discussed yesterday, I do not suggest that if the evidence was found to be both fresh and compelling in the three relevant respects that it would not be in the interests of justice to consider the evidence.  I do not seek to defend the majority with respect to their dicta.  The respondent’s submissions with respect to why there is no substantial miscarriage of justice are really the same and I would be repeating myself, but it is very important to consider the way the trial was conducted, and I have taken the Court to the relevant aspects of the summing‑up at 2817 through to 2820 which encompasses the evidence of Mrs Leach and the reference to 5 o’clock.

Now, less significant, of course, will be what the prosecutor put than the summing‑up, but it is not unimportant, and can I take the Court to that at 2745 within volume 11?  Because we are looking at under substantial miscarriage of justice what this jury – this jury who heard this evidence, heard this summing‑up and heard the addresses.  At 2745 at about line 11:

Now, the scientists have had their go. 

And he refers to Mrs Leach:

In some ways it is just possible you might find Mrs. Leach’s evidence even more commanding than that of science.

Properly described by the majority in the court below as a powerful submission which encompasses the paragraph beginning at the bottom of the page at line 30:

She was always home at twenty to five.

The Court will read all of this, of course.  At the top of 2746:

Is there any doubt in your mind she had been attacked by twenty minutes to five?

So the prosecutor is plainly not hanging his hat on the evidence of Dr Manock:

when the scientists have had their say sometimes you come back to just a little piece of factual evidence which throws a great searchlight onto the whole situation – this girl was not home because she couldn’t get home.

So that was the way – and it is an important aspect of the context in which this trial was conducted.  Would the Court excuse me for just one moment?  Can I then conclude my submissions with submissions of explaining on the ultimate issue the divergence in the opinions of the court below?  I will come to the important aspects of the submission but it is in part a different value judgment about the significance of evidence.  That is what it comes down to.  But can I take the Court to the Chief Justice’s reasons at paragraph 76 where he refers to a particular premise, “I proceed on the premise . . . that the jury may have convicted” on the impugned evidence.  He says on that argument:

there is a significant possibility that a jury would have acquitted the applicant.

The premise does not sustain the conclusion.  Simply because the jury may have acted on Dr Manock’s evidence, does not make it beyond argument that the jury would have acquitted.  That requires a larger examination.  It is a necessary precondition, that premise, but it does not answer the ultimate issue.

Secondly, with respect to his Honour, when one goes to paragraph 77, he refers in the first sentence to the question of whether or not a jury would nonetheless “necessarily convict”.  That cannot be a live question if you have already concluded that there is a significant possibility they would have acquitted.  Further, from about halfway through, his Honour refers to:

Indeed the Judge referred to the possibility of alternative sources in the passage of his summing up which I have set out above. 

Can I take the Court to those passages, because they are, with respect, in my submission, an inadequate basis to draw the conclusion that he is drawing there.  The first is within paragraph 42 of his Honour’s judgment and about halfway through that – two‑thirds of the way through that there is an extract from the defence case under the heading “The Defence case is”.

So part of what the judge referred to as the possibility for alternative sources was simply a defence submission, no more than that.  The other reference that is relevant is within paragraph 46 which is a reference to the summing‑up.  At the paragraph beginning “Mr. Johnston has gone through” and the second sentence “It is possible, even so”.  His Honour seems to be referring to that second sentence beginning “It is possible, even so” back at 77, but he cannot be, in my submission, paying any attention to the whole of the sentence:

but all evidence which you accept must be taken together.

Indeed, the very next paragraph, which is in effect the submission that I have made.  If the Court pleases, they are my submissions.

BELL J:   Thank you, Mr Kimber.  Yes, Ms Gerry.

MS GERRY:   If the Court pleases, if you just give me a moment.  Could I say that I propose to respond in relation to some of the legal issues and Mr Borick will finish in relation to some of the factual issues that arose at the original trial and to make final submissions on the interests of justice point.  I do not propose to keep you very long at all.

BELL J:   Yes, very well.

MS GERRY:   Despite the fact I look as though I have lots of pieces of paper, it is just to try and assist you in this way.  I made my submissions yesterday in relation to the construction of the section.  We still make our propositions that connecting the question of substantial in the evidence in subsection (6)(b)(ii) to the substantial miscarriage of justice must not be an inextricable link that the proposal by the respondent that substantial has to mean substantial miscarriage of justice cannot be right, but what we are really looking at is whether or not there is a connection between reliable, substantial and highly probative and, in my submission, that is formed by the use of the word “and”. 

Those three stand together, and that (iii) using the words “in the context of the issues in dispute at the trial of the offence” links all those three together, so that the context of the issues at trial must be relevant to the reliability and the substantial point, not just to the highly probative.  That is the way in which jurisdiction has to be decided.  That what any court considering this particular statutory section has to go through is the steps to decide; is it fresh, and then is it reliable, was it a substantial issue in the case and is the fresh evidence highly probative of that substantial issue. 

I do not want to repeat what I said yesterday but the substantial miscarriage of justice then flows from that in that sense of was it such a problem in the trial that one then decides that that was a miscarriage of justice and there was a substantial effect on the appellant.  In our submission, those would be the steps in the way that I set out yesterday.  So, I do not propose to keep you any longer on that but I think there is a danger that we are linking substantial – a substantial piece of evidence to a substantial miscarriage of justice as a connection that has to be found in every single case that the weight of the problem in any particular case is what the Court has to focus on in subsection (6).

In relation to the operation of the section, the submissions that my learned friend for the respondent made in relation to the operation of the section, in our submission, if we were to accept the submissions by the respondent it has perhaps the reverse that it would not need to be there at all. 

GAGELER J:   What do you mean by the section?

MS GERRY:   Sorry, by the whole of the statutory amendment so that what I mean ‑ I am sorry for using the wrong language but the – could you just give me a moment to get the papers in front of me?

GAGELER J:   Is it common ground that once you get to section 353A(3), that is, once you are dealing with the appeal, you are through the jurisdictional gateway that the test to be applied is the Mickelberg test?

MS GERRY:   Yes, I am not changing the submission I made yesterday.

GAGELER J:   I am not sure that it hugely matters to the bottom line here whether you load so much upfront into the word “substantial” or whether you just get to subsection (3) and deal with it there.

MS GERRY:   I think I agree with you.  I do not want to – I do not think I can improve on what I said yesterday so I do not really want to – what I was really trying to say at this point is that in relation to section 353A of itself that it has to operate somehow.  My learned friend was talking about the operation of the section as opposed to section 353 yesterday, why is it that we have the word “substantial” in there?  That really comes back to the issues of finality, and what was said in the debate and what I am really trying to draw your attention to now is that the words were in 2012 “A robust threshold is necessary to deter or deny untenable applications”.  So, in our submission, clearly, section 353A is there with a robust text in the way that I set out yesterday.  It has to be highly probative of a substantial issue in the case.

In relation to the objective assessment of the evidence that this Court has to carry out, I know that yesterday we mentioned the case of Weiss and I certainly have it here should you wish to have copies of it, but it reminds us that it is an objective test and what the Court has to do, it is not to be by way of undertaking or attempting to predict what a jury would or might do but rather the words in applying the proviso, the task is to decide whether a substantial miscarriage of justice has actually occurred and that was the point in Weiss in relation to the proviso.  It is not for the Court to say, well, the jury would have done this or the jury would have done that, it is to take an objective overview of whether or not there has been a miscarriage of justice.

NETTLE J:   We have got to find, do we not, in order to find a miscarriage of justice that there is a significant possibility with the new evidence that the jury would have acquitted?

MS GERRY:   Yes.

NETTLE J:   After that it is a question of analysing the evidence to see whether that significant possibility exists, is it not?

MS GERRY:   Yes, but my submission would be is an analysis of the evidence is not to try and guess what the original jury might have done, it is to have a look at what ‑ ‑ ‑

GAGELER J:   You cannot on the one hand accept the text as the Mickelberg test and then on the other hand invoke vice in your client’s favour, it just does not work.

MS GERRY:   It is perhaps not the best point that I am trying to make.  What I am really trying to do is respond to the factual issues that my learned friend brought to the attention of the Court this morning.  I am not making submissions contrary to what I said yesterday but I am raising the concern that we do not focus too much on the other evidence in the case, that the issue really is did Dr Manock’s evidence make the sort of difference that the test requires and our submission ‑ ‑ ‑

KEANE J:   No, that is not the issue, the issue is whether Professor Horowitz’s evidence makes the difference.

MS GERRY:   I apologise, you put it far better than I do, thank you.  Can I simply say this in relation to the evidence itself?  I have two more points that I can make.  In relation to the fibres and the seaweed, can I simply say this and Mr Borick will deal with it.  We have to be very careful about seaweed on him on jumpers taken from him because there is, as I understand it, no evidence of when that seaweed may have arrived on a jumper.  If you live near the beach we have to be somewhat careful about that.  If I have got that wrong I am sure I will be corrected but we do have to be careful.  When one looks at those photographs there is a plethora of seaweed so that would be just one note of caution that I would make in relation to that. 

In relation to the fibres, if I have got this right, my submission is that all that the Court can take is this, that they were common dyes, common fibres of many different colours but there were numerous other fibres, including common white fibres.  In our submission, it is not clear, in fact, on the state of the evidence in this particular trial why you would exclude the white fibres – common white fibres. 

NETTLE J:   Because they were insignificant and accepted to be so.

MS GERRY:   Except that they were also accepted to be common.  So, one inference might be, well, what if the assailant was wearing a white t‑shirt.  It is why one has to be careful about relying on the fibres to form the basis for the whole case.

NETTLE J:   It seems to be common ground when you have regard to the evidence called by the accused that the white fibres were not statistically significant.

MS GERRY:   Yes, in my submission, one has to be very careful about that because one has to think about a trial where this would be presented without Dr Manock’s evidence at all because the tenor of the respondent’s case is we do not need Dr Manock.  If we were doing this again, we would do it without a pathologist.  In our submission, not only would that be artificial and wrong, it is perfectly plain that pathologists would be called in a case of this type.  But, secondly, that leaves the whole of the case dependent on fibres when it is perfectly plain that there were a number of possible interactions that one could make to use that evidence.

BELL J:   It leaves the case open, assuming that the government pathologist was called as one might expect he would be and assuming that his evidence went no further than that he had not taken a – the temperature of the body having regard to the conditions that prevailed and, therefore, he could give no estimate as to time of death.  The case would be the inferences that a jury might reasonably draw from the circumstances including the accused’s location, the position in which his car was parked, the fact that the child was seen running in a direction in which she would have passed that car and her body found not far beyond at a time which Mr Borick in his submissions to the Court put at between 4.00 and 4.10 pm, and the jury might be invited to consider it very clear by the time the mother looked out the window that the child was dead but, indeed, the likelihood that the child was dead when the mother returned home and she was not there when ordinarily she would have been.

Indeed, the likelihood that the child was dead not long after she ran past the position of the accused’s car.  That is the inferential process and then the jury would have – acting in compliance with the direction that the judge gave considered whether they could be satisfied beyond reasonable doubt that there was chest to chest contact based only on the evidence of the fibres because that was the only way to conclude that chest to chest contact was established beyond reasonable doubt.

MS GERRY:   Yes, I do not disagree with any of that.  I think the point that I am trying to make, and I do not think it is a particularly good one now, but I would like to make it on Mr Van Beelen’s behalf is this ‑ that the chest to chest contact is based on the prosecution assessment of those fibres.  The prosecution say that you can take out the red and the black, and the particular word that they use, as I understand it, is the conjunction, that there were red and black together, and one has to be very, very careful about that because an alternative theory could be, well, what about red and white together or red on its own because black could have come from her home.  One can start to see how very easily fibre evidence can be the subject of testing in a way that it perhaps was not tested in this particular case.  So, if the respondent is asking the Court to assess the evidence in the way that it is in such reliance on the fibres by ignoring the pathology our submission has to be that that still remains insufficient.

BELL J:   If that submission had any substance to it, putting consideration of Dr Manock to one side, it would have to be that the verdict was unsafe because the jury were directed that they had to be satisfied of chest to chest contact, the only evidence was evidence of the fibres, and either it was open to reason in the way the trial judge directed them to or it was not but that has nothing to do with any suggested miscarriage arising out of Dr Manock’s evidence.

MS GERRY:   Quite, the only point I can pray in aid to that and then I will sit down is that when one looks at the summing‑up in relation to the fibres that starts on 2835 at 10:

You will have to make up your minds about the red and black jumper.  Are you satisfied that the accused was wearing his red and black jumper on 15th of July?  If, but only if, on the whole of the evidence you are so satisfied, you will have to consider what that means in the context of this case.

Then, over the page, it deals with at 2836 at 20 the sorts of different coloured fibres that there were and it goes through to 2839 as to whether or not they were distinguishable, the conjunction and so forth.  I finish at 2839 at 15:

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.

Now, the problem is that here if one takes the view that this case could be run without Dr Manock’s evidence at all, which appears to be the tenor of the respondent’s submission, then whilst I accept the chest to chest direction comes later in the summing‑up, at this point in the summing‑up it is not

saying you have to be satisfied beyond a reasonable doubt that the fibres indicate chest to chest contact.  That, in my submission, is problematic for the respondent’s case, that this verdict that there is a substantial miscarriage of justice because the case of itself cannot stand on the circumstantial evidence that is left.

That does not alter our submissions that I made on the construction of the statute that to have incorrect pathological evidence does create a substantial miscarriage of justice and I cannot put it any more simply than that.  Those are my responses on behalf of Mr Van Beelen and would you give me a moment?  I should correct one matter in relation to my submissions, the appellant did not live at the beach so I ought to correct that and I do apologise.  Thank you.

MR BORICK:   Your Honours, in relation to the fibre evidence, could I simply refer the Court to what I put to the jury in the closing address as to what the fibre evidence was about.  It is in book volume 11, page 2652.  Starting at about line 11 on 2652, I refer to the fact that the particular scientific evidence worthwhile considering was the evidence of Mr Fish and Dr Harding, who were the defence experts.  At page 2653, I described that in this way:

The true significance of the work they did . . . it was found that these dyes are very common dyes, dyes that can be found just anywhere as emphasised by the fact that there they are on a single garment, the girl’s slacks, and another garment, the man’s jumper, garments which are poles apart in manufacture and who they are sold by and who they are bought by.  That is the essence of it.

At line 24, I refer to the fact that:

the accused has presented you with a complete testing of those fibres -

At page 2655, I pointed out at line 13:

in my submission, the important thing you have got to look at first of all, is the red and black fibres and see what you make of them, and if you come to the conclusion that the important issue is that they are common dyes, that is the important thing to look at in regard to the whole of the fibre evidence.

That was our position on the fibre evidence at the trial and basically my position today.  Your Honour, at the preliminary committal hearing in this case and during the first trial the prosecution claimed they had 27 points, or thereabouts, matched to Frits Van Beelen.  Those matchings can be classified into nine categories:  the sperm that was found; ABO grouping of semen; human hairs; dog hairs; clothing, that is the fibres; seaweed; sand and minute shells; paint particles; time of death.  By the end of the second trial it was down to the presence of sperm which did not matter, seaweed and sand and shell material which did not matter, and the two issues which are before this Court, fibres and time of death.

Now, the prosecution case was formulated upon the criminal investigation unit that existed in South Australia in the 1960s.  There was no proper science used at all, no understanding of how science should be used properly.  That fact emerges in Van Beelen itself as most of their alleged scientific evidence was got rid of and - it did not go away because Van Beelen was convicted.  Then came the conviction of Splatt and the Splatt Royal Commission.  In our argument to you, in our submission we make specific reference to what Judge Carl Shannon had to say.  I want to read it to you again.  It is at page 14 of our submission.

BELL J:   Where is this taking us, Mr Borick?

MR BORICK:   It is taking us to this point, your Honour, that the science which was used in the Van Beelen Case was not proper science in any sense.

BELL J:    Mr Borick, when you speak of the science that was used, is this now a submission concerning the fibre evidence?

MR BORICK:   Yes, your Honour.

BELL J:   Now, you called an expert touching on the fibre evidence and, as I understand it, your expert agreed with Mr Crisp from the prosecution side of the record in relation to the similarity between the fibres taken from the red and black jumper and the fibres taken from the deceased’s singlet.

MR BORICK:   That is correct.

BELL J:   But the point that Mr Fish sought to make was these are common dyes and this type of woollen fibre is a common fibre.

MR BORICK:   Yes.

BELL J:   Appreciating – and you may well be right – that forensic science has moved on in the last 50 years ‑ ‑ ‑

MR BORICK:   It has.

BELL J:   How does that assist us?  There really was no controversy, as it would seem, that the tests that Mr Crisp carried out were proper tests to carry out, but your point was they do not take you further than the coincidence, if you think it that way, that fibres consistent with the fibres in the accused’s jumper were found on the singlet of the deceased but equally they may have come from some other source?

MR BORICK:   I understand fully what your Honour has put to me but I will come back at it this way.  There was a huge amount of scientific evidence, or so‑called scientific evidence, which was just got rid of.  So it came down at the end of the day, when the jury went out to consider their verdict, to the fibres and time of death.  In relation to time of death, which also relates to the fibre evidence, that is the contact between these people, the jury were misinformed.  They were told by Dr Manock as to what time it had occurred.  That was wrong and that is the critical feature. 

When I opened my address on the application for leave to appeal, as I said to you yesterday, I referred to the “interests of justice” and I refer to the “interests of justice” now, that this really is, with respect, time for this Court to deal with the meaning of that expression in this context where a jury given two things to consider in order to convict are misinformed on one.  How then is it possible to say that there is not a miscarriage of justice as our Chief Justice pointed out? 

Your Honour, there was a reference by your Honour to - for the girl to be attacked elsewhere than where the body was found is fanciful.  The jury had not evidence about where and when this happened.  What this Court has to consider is not the question of whether that is fanciful or not but whether the interests of justice are meant in the way that I have described.  That basically is my position.

BELL J:   Thank you, Mr Borick.  The Court will reserve judgment in this matter.  The Court adjourns to 10.15 am on Tuesday, 8 August in Brisbane.

AT 11.52 AM THE MATTER WAS ADJOURNED