Van Beelen v The Queen

[2017] HCATrans 135

[2017] HCATrans 135

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 WEDNESDAY, 21 JUNE 2017, AT 2.16 PM

Copyright in the High Court of Australia

MR K.V. BORICK, QC:   If the Court pleases, I appear with MS F.R. GERRY, QC and MR A.J. REDFORD for the appellant.  (instructed by Michael Hegarty & Associates)

MR A.P. KIMBER, SC:   If the Court pleases, I appear with MS F.J. McDONALD for the respondent.  (instructed by Director of Public Prosecutions (SA))

BELL J:   Yes, Mr Borick.

MR BORICK:   Your Honour, I will be basically short in my address to the Court and I will be followed by Ms Gerry who will deal with some of what I will call the jurisdictional issues and deal with the issues of the meaning of “compelling”, the meaning of “significant” and “substantive”.  I will be basically in my submission relying very much on our submission which was filed on 17 March which sets out our position and I want to take the Court to various aspects of that. 

In that document at paragraph 6 we state that the Van Beelen Case at the second trial was presented to the jury as a contested question of expert opinion or facts relating to those opinions.  It is clear that subsequent to all of the trial and appellate proceedings scientific researches demonstrated that the opinion of the pathologist, Dr Manock, should never have been proffered as expert evidence.  Based on the evidence of Professor Michael Horowitz, Dr Manock’s evidence as to time of death had no basis at all in science at that time and had no scientific validity.  It is submitted that this Court should hold that this case should never have been presented to the jury as a contested question of expert opinions.  There never should have been any such contest and in those circumstances a miscarriage of justice has occurred. 

Now, in the course of the application for special leave, Mr Kimber, senior counsel for the respondent, made a number of submissions which we have referred to in our outline.  Mr Kimber first of all made the point that the case requires a detailed analysis of how the case was run.  We accept that and I am going to take you briefly to our analysis of how this case was run.  Then Mr Kimber said one needs to look at what the context of this trial was because what this evidence does in the view of the majority in the court below on the whole of the evidence is only to extend the time of death beyond that estimated by Dr Manock by some 10 to 20 minutes.  It was then put to him by Justice Nettle:

But does it not admit of a reasonable possibility that it may have been somebody else?

To which Mr Kimber responded:

Well, that requires an analysis of the whole of the evidence in the case and also the way the trial was conducted. 

Then he went on to say:

It was not being put by the prosecutor that the whole of the prosecution case showed that she was dead by 4.30.  Indeed, as the court observes in paragraph 142 –

That is the court below:

and particularly in the final paragraph . . . there was much more reliance placed upon the civilian evidence –

That was her mother going onto the beach and seeing the dog on the beach:

So the case was not left to the jury on the basis that on the whole of the evidence in the prosecution case they could find with certainty that she was dead by 4.30. 

In our submission, it was.  Just a little bit further after that, Mr Kimber said:

True it is the way the case was conducted, the applicant could not have been the killer much after, if at all, 4.30 pm –

and referred to the fact that there was no challenge to the evidence that the appellant was in the city at 5 to 5.  To get into the city at 5 to 5 he had the leave the beach at half past 4.  In order for Van Beelen to be convicted, the jury had to accept Dr Manock’s evidence that the death occurred between basically 10 past 4 and half past 4.  They had to accept that because he could not ‑ ‑ ‑

BELL J:   What the jury had to accept before the appellant could be convicted, bearing in mind the unchallenged evidence of the wife of the time at which he collected her, was that the deceased met her death some time before 4.30 pm – at or before 4.30 pm approximately that day.  But that does not mean that they had to accept Dr Manock’s evidence.  Dr Manock’s evidence may have been regarded as significant in that regard but the ‑ ‑ ‑

MR BORICK:   As I understand what the respondent is putting, and I gather they will be putting to you again today, the assault on this girl and the murder could have been committed between half past 4 and 10 to 5.  Now, that they say is based upon some sort of civilian evidence.  But the fact is that Van Beelen left the beach at 4.30.

BELL J:   Yes.

MR BORICK:   He could not have committed the crime.  So in order to convict Van Beelen of murder, they had to accept that the death occurred at the time he was on the beach – that is, quarter past 4, half past 4.

BELL J:   Indeed.

MR BORICK:   That comes from Dr Manock, but Dr Manock’s evidence was completely wrong.

BELL J:   But accepting that Dr Manock’s evidence was unreliable, let us accept for present purposes your submission which as I understand it is this.  Had Professor Horowitz’s evidence been available at the trial you would have had a voir dire and you expect on the question of Dr Manock’s opinion and you expect that the evidence would have been excluded as entirely wanting a proper basis in science.

MR BORICK:   Yes.

BELL J:   Yes.  Accepting that for the present, the contention put against you, Mr Borick, is that there was on the evidence of the time of the deceased’s arrival on the beach evidence that the accused did not challenge that he was present on the beach up until about 4.30.  That provided the opportunity and the scientific evidence concerning the fibres established the necessary link.  None of that depended on acceptance of Dr Manock’s evidence.

MR BORICK:   Except, your Honour, the evidence provided to the jury by Dr Manock that the time of death was between quarter past 4 and half past 4 was wrong, and it is impossible to say that the jury did not accept Dr Manock’s evidence and, therefore, there was no point in looking at whether somebody else could have killed this girl, as Justice Nettle put to Mr Kimber.  It had to be Van Beelen.  That is our point that the miscarriage of justice occurs because a scientific opinion was expressed which was not only wrong but was scientifically invalid.

EDELMAN J:   Really the high‑water mark of this submission really is 2817 in the summing‑up where the trial judge says to the jury that:

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

Although he later goes on and says that:

It may be, on Dr. Manock’s evidence alone, you could not be certain that Debbie died before 4.30 p.m., although you might think this probable.

So your point is essentially that on the summing‑up his evidence becomes a very important part of locating the time.

MR BORICK:   It was at that stage that the judge put to the jury that Dr Manock was a “man of science” which was being put by the prosecution too.  Well, I am not allowed to talk about Dr Manock other to say that in this case his opinion was not only unscientific but it was wrong, but clearly unscientific because on the evidence of Professor Horowitz there was just nothing on which he could have possibly have based that very firm opinion, death had to be before 4.30.  Our specific submission is that if Mr Van Beelen did attack Deborah Leach, cause her death by drowning her and then violating her body, it is not possible for those events to occur after 4.30 pm.  It is just not possible given the length of time all that would have taken. 

Now, Mr Kimber has said to the Court that it is necessary for the Court to have a look at how this trial was conducted.  In our submission, we have done that.  There are some aspects I would have to take the Court to.  The Court of Criminal Appeal which set aside the conviction after the first trial, the first appeal, said :

But we would say first that, in our opinion, the direct factual evidence was insufficient without the scientific evidence to permit the case to be left to the jury, either at the close of the Crown case or at the close of all of the evidence. 

BELL J:   Mr Borick, you place some significance on that statement by the first appellate court, considered the first trial.

MR BORICK:   Yes.

BELL J:   Their Honour’s reference to the scientific evidence might be thought to be to the evidence concerning the fibres.  I say that because in the way this matter was left at the second trial, the jury was given a Shepherd direction that unless they were satisfied beyond reasonable doubt of “chest to chest contact between the accused and the deceased”, they were to return a verdict of acquittal and go no further at transcript 2885.  That, I think, is conformable with the statement to which you refer made by the appellate court following the first trial.

MR BORICK:   Yes.  Your Honour, I am sorry, I must have put it badly.  There is no question that your Honour is right.  The court then was referring to all of the scientific evidence, that it was not just fibres.  There were so many – I think there was hair, there was paint ‑ ‑ ‑

BELL J:   Yes, seaweed.

MR BORICK:   There were particles of soil – it went on for months.  In our submission, we make the point that it was a unique trial in the sense that there was so much scientific evidence, it went for so long and, from a personal point of view, it was unique in that the defence were given - the amount of support we were given by the British Home Office was extraordinary.  They took a lot of time and went to a lot of expense.  They sent people out to Australia to help us with all that evidence.

In a sense, Dr Manock’s evidence as to time of death was pushed into the background at that trial.  It did not figure in the way it did when - as well as the help we got from the English scientists and other scientists in Australia, most of this so‑called scientific evidence went.  In the second trial, the case was much more related to Dr Manock’s evidence and it was at that point we brought Dr Pocock in and led evidence which did not happen at the first trial because we just did not see the need of it.

In my submission to the Court, there is just no doubt that the second trial was a contest at the end of it between Dr Manock and Dr Pocock and it can be demonstrated by the manner and way in which counsel for the prosecution, Mr Elliott Johnston QC, cross‑examined Dr Pocock.  He put to Dr Pocock his position – is the way Mr Johnston described it at that point of time - and we refer to it in detail.  His position was that there was a scientific article which, in effect, supported Dr Manock’s opinion.

Now, as we pointed out in the submission, the material Mr Johnston relied upon had nothing to do with the Van Beelen Case at all, and Professor Horowitz made that point too.  It was irrelevant to the question of acceptance of Dr Manock’s time.  You see the prosecutor, when he is talking about Dr Manock’s evidence, said:

There it is, ladies and gentlemen, accept his –

that is, Dr Manock’s:

opinion, if you feel you can.  If you feel you ought to, reject it.  If you feel you ought to accept it as giving a general indication, if you think you ought to, but if you don’t think you ought to don’t take it quite so specifically to the hour as he puts it, but don’t let us entertain this story about him being irresponsible and having no basis in the authoritative scientific work, because I submit to you on the basis of what I have just put to you this is not true.

There the prosecutor is putting it very specifically to the court that he was a man of science and that there was a degree of science which supported that opinion and the jury could accept it.

After the second trial, dealt with briefly, there came the petition.  Now, what happened there, your Honour, was that – if I could…..personally at the moment, but the defence were never told anything about a confession made by, he was called “the limping man”, Mr Sandercock – I was told about it at a Sunday morning party by a psychiatrist who knew the limping man and he said to my wife, “What is your husband going to do about the confession?”  She said, “What confession?” 

That led to us finding out about the Sandercock confession and that led to the petition and the case was referred back to the Court by the then Attorney‑General, Mr Len King, who later became Chief Justice King.  When that court was considering the Sandercock confession, if you like, they started with the proposition that:

on our appraisal of the additional evidentiary material, assessed in conjunction with the evidence, the addresses, and the summing up at the trial, nothing of appreciable probative value to controvert the following conclusions of fact (which were plainly open to the jury and which must have been reached by them in order to convict).

1.That the time of death was somewhere between 3.30 pm and 4.30 pm.

That is what the court said and, with respect, that got rid of the Sandercock confession – that is, that time of death.  We then come to the judgment of Justice Vanstone and Justice Kelly in the Court below.  At paragraph 139 – I am going to take you to a few of the paragraphs – they said:

The resolution of that conflict –

between Dr Manock and Dr Pocock:

could not be said to be critical to the outcome of the prosecution.  That is particularly so in circumstances where times were important and Dr Manock did not purport to offer more than a span of time -

With respect, the court got that wrong, in my respectful submission.  Then at paragraph 141 they refer to the submissions made by the prosecutor and at paragraph 143 they made the point:

It can be clearly seen from the above that the prosecuting counsel put to the jury that, on the basis of Mrs Leach’s evidence alone, it could be satisfied that the deceased had been attacked by 20 to five that afternoon.  This was a powerful submission.  If accepted, Mrs Leach’s evidence effectively rendered unimportant the contest between Dr Manock and Dr Pocock about the reliability of stomach contents -

Your Honour, we challenge that very seriously because Mrs Leach, the mother of Debbie, went down to the beach looking for her daughter and she could not find her.  That is what it was about.  It was not that that proved that Debbie was dead at 20 to five.  You just do not know.

BELL J:   But the inference their Honours drew was that one might conclude, as I would understand them, beyond reasonable doubt that by the time the mother was looking for the girl the explanation for not finding her was that she was dead.  Now, you say without Dr Manock’s expression of opinion it may be that she was still alive, she had gone off somewhere, met her assailant ‑ ‑ ‑

MR BORICK:   It is a critical difference between what the prosecution are putting to you.  They are saying that you can forget all about Dr Manock’s mistake and the fact that he got it all wrong.  Mrs Leach went onto the beach at about 20 to five – it might have been a bit later – but at 20 to five, 10 to five, and she could not see Deborah.

EDELMAN J:   I thought the trial judge directed that she got home at 20 to five and looked out the window at 10 to five.  Is that not right?

MR BORICK:   Yes, he - I cannot answer that specifically but the time, as I have always remembered was 10 to five.  But at the end of the day, whether it was 20 to five, a quarter to five or 10 to five, the fact is all that she could say was that Debbie was not there.  She could not see Debbie.

BELL J:   Indeed, but ‑ ‑ ‑

MR BORICK:   That is it.  That did not mean Debbie was dead.

BELL J:   It does not necessarily mean that, but this was a case that required inferential reasoning and one inference that was open was that Debbie was usually home by the time mum got home at 20 to five.  Debbie was not home.  Within 10 minutes of mum getting home and noticing that she was not there, she is looking out to see where she is.  In the circumstances, one inference that is reasonably open is that she was not back home where she normally would have been because she was dead.

MR BORICK:   We do not accept that, your Honour.

BELL J:   I understand that.

MR BORICK:   You could not possibly put to a jury “Find Van Beelen guilty beyond reasonable doubt because her mother could not find her 10 minutes after Van Beelen left the beach”.

BELL J:   One could not put that, just as one could not put that one could find Mr Van Beelen guilty beyond reasonable doubt on Dr Manock’s opinion and his Honour made clear one could not alone reason in that way.  But an inference that was open, based on the civilian witnesses, was consistent with the view that by the time the mother got home and saw that the daughter was not home, the daughter was dead.  That is an inference.

MR BORICK:   Your Honour, at paragraph 148 in the judgment of the court below, the judges said:

And so it can be seen that both the Crown counsel and the Judge clearly put to the jury that, on the basis of Mrs Leach’s evidence, it could form the view that Deborah Leach was attacked, certainly by 5.00 pm, but probably before 4.40 pm.

Your Honour, the judges are taking it a step further even than you.  She has not only has to be dead by 5 o’clock, which they are saying - you could assess the evidence that way – but dead by 4.40, 20 to five.  Now, there was no basis for the court to make that conclusion and on the very face of it, it would not justify a conviction.  At paragraph 152, the court went on to say:

Therefore, absent Dr Manock’s opinion that death occurred not later than 4.30 pm, the time available to an unknown person to have come onto the beach, committed the murder and have left is extended by only 10, or at most, 20 minutes.  In summary, extracting Dr Manock’s evidence has little impact on the thrust of the prosecution’s case.  The finding of guilt does not imply acceptance of Dr Manock’s evidence; nor is the evidence of Professor Horowitz inconsistent with the applicant’s guilt.

There you see that you have the court now saying the jury could have reasoned that someone came onto the beach at 20 to five and then over the next 20 minutes, quarter of an hour, killed this girl and no one sees it and the mother is on the beach looking for her.  It cannot add up as a reasonable hypothesis on which a conviction can be based.

Your Honour, I move to what are three very fundamental features of our argument.  The first is that section 353A gets rid of the principle of finality.  Maybe the better expression is “abrogates”.  But the fact is it was introduced because of the injustice being created by the principle of finality.

The submission to the parliamentary commission which heard all of this came about as a result of a comment made by then Chief Justice Gleeson when a man by the name of Keogh was making an application for special leave to appeal.  Again that dealt with Dr Manock’s evidence and the Chief Justice, in the course of his discussion with counsel, said that the only thing that can happen here where you can get this case reopened is to change the law.  So the law was changed to get rid of the problems caused by the principle of finality.  Now, Chief Justice Kourakis in the court below at paragraph 73 said this – and it is a very important paragraph, in our submission:

Having found that there is fresh and compelling evidence ‑

which his Honour had found:

it remains to determine whether or not it should be received.  In the ordinary course, evidence which is both fresh and compelling, as I find it to be defined by s 353A of the CLCA, will warrant consideration.

Now comes a sentence that I particularly put to the Court:

Advances in forensic science are the paradigm case of fresh evidence which should, in the interests of justice, be received and considered.

That is a very important sentence and statement to make for two reasons.  In the course of the application for special leave, I made a point then and I make it again now that the expression “interests of justice” in this context is very important when you are looking at false evidence, false scientific evidence and in addition, scientific evidence itself cannot admit of finality because it – and as the Chief Justice has put there – it is changing.

We have referred to, in our submission, the Royal Commission concerning a man called Edward Charles Splatt – we have quoted it there but there were two propositions advanced.  The first was that a:

serious obligation lies not only on the scientists who give evidence –

and he spelt that out – the obligation on the scientist to get it right:

but on the representatives of the legal system who are responsible for the conduct of the Trial.

I read into that the trial and the appellate process.  My submission to this Court is that it is relatively easy to accept how scientists have to make sure that the work they do which produces a result, their search work, what they publish and what other scientists publish, can be looked at ‑ ‑ ‑

BELL J:   Mr Borick, I think you are tending to stray into the ground that was not the subject of the grant of special leave.  There is no contest as to Professor Horowitz’s opinion being, relevantly, fresh evidence, no contest as to it being reliable.  The issues are having regard to the issues at the trial, does it meet the test of being compelling and highly probative in the context of those issues.

MR BORICK:   Your Honour, I am putting it in – this proposition or the two of them – the fact that there is this obligation on scientists to do their work properly.  That could be tested.  We can look and see what they relied upon to come to their opinion.  But it is a lot more difficult for lawyers.  It is all right if a trial occurs where – as it happened to us in this case.  We have these experts from all over the world who came to help us.  But in so many trials, your Honour, with limited legal aid money, the limited experience of some lawyers, it is very hard to assess how this obligation on the legal profession to make sure that science is right can be explained.

I am putting that to the Court as more of a personal expression of the way I see it and with the Court then to consider whether you see some point in the proposition I am making that it is very hard to say there is an obligation – or easy to say there is an obligation on the legal profession – including the judges – to make sure that science has it right.  But how do we enforce that?  That is a little difficult. 

That leads then to my point in this whole case that there is an obligation on the scientists, on the legal profession, including the judges, to accept that Dr Manock’s scientific opinion was wrong and not to try to get rid of it by saying it does not matter because the jury might have reached their verdict by another way.  That is the ‑ ‑ ‑

EDELMAN J:   That is a point ultimately that goes to the question of the interests of justice in the section, is it not?

MR BORICK:   Yes.

EDELMAN J:   That issue, as I understand it, is not really put in contest by the respondent.  My understanding of the respondent’s submissions is that if the evidence were fresh and it were compelling and it otherwise amounted to a substantial miscarriage of justice then it would be in the interests of justice for the evidence to be relied upon.

MR BORICK:   I suppose, your Honour, I am also putting that Justices Vanstone and Kelly said it did not matter that Dr Manock got it all wrong.  They said there is this other civilian evidence which proves it, but the other civilian evidence did not.  In my opinion, that was wrong.

BELL J:   What was wrong with Dr Manock’s evidence was the confidence of the conclusion that 4.30 was the outer limit of the time that that girl might have been alive.  Now, that is not to say that she may not have been dead within the time limited by Dr Manock.  It is simply that it was misleading in light of Professor Horowitz’s evidence to express the opinion with the confidence that Dr Manock did.

MR BORICK:   The Chief Justice in the court below made that point.  He might have been right but the fact is that you cannot convict the person on something which was clearly wrong.  It is on the basis that it might be right. 

BELL J:   At some stage, Mr Borick, you are going to have to deal with the fact that if this jury complied with the judge’s directions, unless they were satisfied beyond reasonable doubt, based on the scientific evidence respecting transfer of fibres and other materials, that there had been body on body contact between the appellant and the deceased, they were to acquit.  That was the way the matter was left. 

EDELMAN J:   This is the direction at 2885.  For my part, I would also like to hear submissions about whether that direction is concerned only with the scientific evidence or whether it is also concerned with evidence of opportunity.

MR BORICK:   Right.  Ms Gerry will be on her feet shortly and she will deal specifically with that query.  I am sorry, your Honour, I have not answered your question.  I am not sure that I got it right.  Would you mind putting it to me again?

BELL J:   Yes.  It is that the trial judge directed the jury – and this is at page 2885 of the transcript – in these terms:

If you are not satisfied that there was any chest to chest contact between the accused and the deceased, bring in a verdict of acquittal without going any further. 

As I understand it, the only basis for satisfaction of chest to chest contact between the accused and the deceased was the evidence of the presence of fibres and other materials both on her singlet and on his jumper.

MR BORICK:   But I do not think even the respondent would put the possibility of a jury convicting on the basis of the so‑called fibre evidence which is all that is left about all the other stuff that they tried to rely upon.  It could possibly amount to sufficient evidence for a conviction for murder without the evidence of Dr Manock that the death occurred while Van Beelen was on the beach.  That is the only time he could have come in contact with her.

NETTLE J:   Is that to say, Mr Borick, that in deciding whether they were satisfied there had been contact between the deceased and the accused, they would have, perhaps, been more likely to accept that there was because they believed it on the basis of Dr Manock’s evidence that there could not have been anyone else involved after 4.30?

MR BORICK:   That is right.  Yes.    

EDELMAN J:   And that would explain why then in the paragraphs immediately preceding the Shepherd direction there is reference to both evidence of opportunity and the scientific evidence.

MR BORICK:   Yes.

EDELMAN J:   The evidence of opportunity being Dr Manock’s evidence.

MR BORICK:   Yes, your Honour, yes.

EDELMAN J:   As to the timing?

MR BORICK:   Yes.

BELL J:   It still rather begs the question of how, regardless of Dr Manock’s evidence, they could have reasoned to satisfaction of chest to chest contact absent acceptance of the evidence of fibre and other particle transfer.

MR BORICK:   I can only repeat the proposition that I put to your Honour that the jury could not possibly have found Van Beelen guilty of murder, proof beyond reasonable doubt based upon very nebulous fibre evidence.

BELL J:   Are you going to take us to that, Mr Borick, and the ‑ ‑ ‑

KEANE J:   And explain why that is right.

MR BORICK:   Explain why what is right?

KEANE J:   Why you say the jury could not have concluded beyond reasonable doubt that the fibres, consistent with fibres from his jumper, were found on her and vice versa - why the jury could not have concluded that they must have had contact and, if so, that given that the young girl was killed and that there was no other candidate that evidence tended to suggest that your client was the killer. 

MR BORICK:   It depends, your Honour, on what you mean by “fibres consistent with”.

KEANE J:   Why?  Are you going to ‑ ‑ ‑

MR BORICK:   That was very much in dispute at the trial, the value of that fibre evidence.  The value of that evidence, in my submission, falls away to nothing until you have Van Beelen on the beach at the relevant time – that is, 4.30 – at a time when the death occurred.

KEANE J:   But he was on the beach before 4.30, was he not?

MR BORICK:   Yes, yes.  He was on the beach ‑ ‑ ‑

KEANE J:   On his own evidence ‑ ‑ ‑

MR BORICK:   Yes, he was.

KEANE J:   ‑ ‑ ‑ he was on the beach before 4.30. 

MR BORICK:   They were on the beach at common times – I would say 10 past four to half past four.

KEANE J:   On Professor Horowitz’s evidence, the time of death could have been any time from – on his evidence the time of death could have been some time about 4 o’clock – on Professor Horowitz’s ‑ ‑ ‑

MR BORICK:   On Manock’s evidence, yes.

KEANE J:   No, on Professor Horowitz’s evidence.

MR BORICK:  Yes.

KEANE J:   On the fresh evidence you are relying on, the time of death could have been about 4 o’clock.

MR BORICK:   Yes.  I have to accept that. 

KEANE J:   Your client was on the beach about 4 o’clock. 

MR BORICK:   But the direction in respect of the fibre evidence depended upon Van Beelen having the opportunity to have contact with the girl.  That, your Honour, then comes directly back linked to Manock’s evidence that the contact had to occur before 4.30. 

KEANE J:   No, it does not.  People saw her going to the beach a little before 4.00.  Your client says he was on the beach sometime after 4.00.  Other people saw your client on the beach.  People came and gave evidence about who they saw and who they did not see.

MR BORICK:   No issue that he was on the beach between a quarter past four and half past four, no issue. 

KEANE J:   Probably between 4.00 and half past four. 

MR BORICK:   Yes, I would accept that too, yes.  But I am not sure the girl got down to the beach until after 4.00 – 10 past four or thereabouts.  Anyway, I do not think it matters very much whether it is a 20‑minute time period where they are together on the beach or a half an hour time period.  It is still always going to come back to the fact that the jury was told that the deaths occurred before 4.30.  Had it occurred after 4.30, which had to be a reasonable possibility, then the jury could not have convicted Van Beelen.

KEANE J:   Because of the possibility that someone else did it?

MR BORICK:   We have to accept at this point of time that somebody murdered the girl.  There are other criticisms of Dr Manock, for example, in this case, of not taking body temperature and the question whether his other opinions are right – but we have to accept that.  We have to accept that the girl was, in fact, murdered.  But it had to be before 4.30.  That is where the interests of justice demand that the Chief Justice of the court below was right when he said it was a miscarriage of justice.  He said let us go back and have a retrial.  That is not going to happen.

KEANE J:   The Chief Justice reasoned on a view of the operation of section 353A, which was to look at the possibility that the jury might have come to a different conclusion had the evidence been that given by Professor Horowitz rather than the evidence given by Dr Manock.  The majority took a different view.  They did not focus on the potential effect of Dr Manock’s evidence on the jury all those years ago.  They focused on whether or not the fresh evidence, the evidence of Dr Horowitz, when added to the evidence at trial, was such as to give rise to a significant possibility that an injustice had occurred; that is to say that your client might be innocent.  They focused on that question and they held that Professor Horowitz’s evidence, and ignoring Dr Manock’s evidence, did not give rise to that possibility.

That is the real difference that arises between the Chief Justice and the majority in the court below and that is really the basis on which special leave was granted to resolve the question of construction, the question of the operation of 353A.  That might be a more profitable focus for your argument.

MR BORICK:   At that point, your Honour, would you mind if I pass over to Ms Gerry?  We agreed beforehand that that is what she would deal with.

BELL J:   Yes.

MS GERRY:   May I therefore take you through the construction that we put on the relevant section.

BELL J:   Yes, indeed, thank you.

MS GERRY:   In particular subsection (6), which is the area, in my submission, which is vexing us.

BELL J:   Yes.

MS GERRY:   In relation to subsection (6), I draw your attention, of course, to the word “evidence”.  Our submission is that subsection (6) relates very much to the force and weight of the evidence in a particular trial.  Of course there is no dispute that the evidence of Professor Horowitz is “fresh” within the meaning of subsection (6)(a), so I do not propose to address you on that unless you wish me to do so.

The perhaps most significant issue in this particular hearing is the way in which the Court should construct the word “compelling”.  The statute itself breaks the word “compelling” down into three parts: 

(i)it is reliable; and

(ii)it is substantial; and

(iii)it is highly probative in the context of the issues in dispute at the trial -

My learned friend for the respondent, Mr Kimber, defines “reliable” at paragraph 36.  As you will have seen from the outline of our argument, we do not propose to argue that point.  It seems a very sensible and similar definition as given in the court below.  There is no suggestion that the fresh evidence is anything other than reliable, and paragraph 36 of the respondent’s argument in my annotated submissions, in my submission, is accurate.

The question really arises in relation to “substantial” and “highly probative”.  My learned friend, in paragraph 37, uses the word “protean”, which, as I understand it, means many forms.  In my submission, it really comes to this as a practical reality; that it relates to the weight of the issue in the case.  Of course it would be protean; it could take many forms depending on what the issues are in any particular case.  As I flew in, I tried to think of an example of how we could think about what is highly probative, what might be substantial, and I am sorry if it is terribly English but I hope you will bear with me for a moment. 

Often we have cases involving clothing.  I have tried to avoid the type of clothing we have in this particular case for the purpose of this argument, so I came up with the idea of a top hat.  If you had fresh evidence in relation to closed‑circuit television and the issue in the case had been “was the defendant wearing a top hat?”, if it were an assault in the street where the issue was consent of some sort – a sexual assault where the issue was consent – it may be that the closed‑circuit television evidence would show whether or not the defendant was wearing a top hat.  He said he was or was not.  It would mean nothing.  It would not be substantial.  It might be highly probative as to the issue of whether or not he was wearing a hat but it is not going to be substantial in the issues in the case.  The issue will be consent and therefore we would not be across the hurdle of “substantial”.

If, however, it were a group violence case, for example, and the principal is said to be the person in the top hat who was the person with the knife, it would then become extremely important to know whether or not the defendant was the person wearing the top hat.  It seems to me that that is an example of how we look at weight in particular criminal cases.  It is inextricably linked to what the issues were.

BELL J:   So how is it distinctive at all from subsection (iii), namely “highly probative in the context of the issues in dispute”?

MS GERRY:   It is a difficulty in that sense but it gives us the flexibility to look at what was the real issue here.  So there may be a number of issues in dispute in a particular trial, and a hat would be one of them:  what was the person wearing, what was the lighting like?  It may be here there was a dispute as to what jumper the appellant was wearing at the time; the fibres were in dispute.  It becomes substantial.  It has to be substantial if it is the sort of issue that would make a difference. 

I say that based on a number of authorities which I can take you through fairly swiftly, I hope, including the court below.  I have mine in the bundle, the joint book of authorities.  I am merely going to take you to a few examples as I go through.  Essentially, I would submit that it is substantial if it would have made a difference to the verdict, and that appears to be the test that comes out of the authorities.

If we can start with tab 3 – I hope you have the same bundle and tabulation as I do; the bundles have been somewhat of a moveable feast but it should be in the matter of the petition in this particular case.  I hope you all have that.  Could I take you in particular to page 182?  It is at the bottom of the page.  I am starting with Aylett v The Queen – “Aylett” is in fact on the right hand side, and then we have “v. The Queen” on the left.  I hope you are with me on the italics.  It reads as follows:

(in which the Tasmanian Full Court were principally concerned with the principles to be applied upon a reference under the equivalent section in Tasmania to paragraph (a) of s. 369 of the Criminal Law Consolidation Act (S.A.)); Wakefield (in which Barry J., with the concurrence of Sholl J. and subject to a minor reservation where credibility was primarily in issue, of Smith J., laid it down that, before a new trial will be ordered, the fresh evidence sought to be introduced “must be of so cogent a kind as to justify the conclusion that it would have led to a verdict favourable to the person seeking the new trial or, at least, that such a favourable verdict was so highly probable that it would be unreasonable to expect any other result) -

Then there are a number of authorities after that.  Further on, at page 249 – I hesitate to say that Lord Denning tends to pop up everywhere, but Lord Denning is popping up here.  Below subparagraph (4) it begins:

Adverting to the fourth rule propounded, it must be observed that the principle enunciated by Lord Denning postulates three attributes of the evidence which it is within the power of the witness to give.  It must be credible, in the sense, so it seems to us, of having a show of truth, reasonableness and worth; of being capable of belief.  It must be material in the sense of being admissible and relevant to the issues, or the vital facts in issue.  And it must tend to establish the innocence of the prisoner.  In our view, if one looks at the evidentiary material which is the subject of inquiry in this case, none of it possesses the attributes which Lord Denning had in mind when the spoke of the duty of the Crown in the particular circumstances which his Lordship was considering. 

That appears to be a very similar three‑stage test to the one we have in the statute.  If I may go on very briefly to take you to Gallagher, which is in tab 4, much of what I am saying is in the headnote, but if I can take you in particular to page 399.  Part of the judgment appears to deal with the case of Stafford towards the bottom of the page.

No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.  It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at trial.

I respectfully agree with the analysis of the facts in the judgment.  Over the page, the last paragraph, there is a sentence at the beginning:

It is settled that an appellate court dealing with an application for a new trial on the grounds of fresh evidence has some responsibility to examine the probative value of the fresh evidence. 

Then one goes to page 402, towards the bottom of the page, the paragraph beginning “Regardless”:

Regardless of the precise words in which one describes requirements such as “cogency”, “plausibility” or “credibility”, the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ. in Craig indicate, whether there has been a miscarriage of justice at the trial.  The appellate court will conclude that the unavailability of the new evidence at the time of trial involved such a miscarriage of justice if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.  Obviously, that question can only be answered in the context of, and by reference to, “the probative force and the nature of the evidence already adduced at the trial” -

So it has to be probative but it has to be so substantial that it would have made a difference to the verdict.  Here, of course, we say it would, and I will come to that in a moment.  There are a number of other excerpts that say much the same thing. 

BELL J:   Is all of this leading to acceptance that the test is the test propounded in Gallagher with respect to a significant possibility that a jury acting reasonably would have acquitted?

MS GERRY:   Yes.  We would submit that the jury would have reached a different conclusion in this particular case.

BELL J:   But on the construction point, your submissions align with the majority in the court below as to the applicable test?

MS GERRY:   In relation to the word “substantial”, yes, because it has to be sufficiently substantial to have made a difference on a vital issue.

BELL J:   I think that was their Honours’ ultimate conclusion as to the test.

MS GERRY:   Yes.  On the jurisdictional issue, the two points I make actually are:  one must not mix up “substantial” in subsection (6)(b) and “a substantial miscarriage of justice”, which is what the respondent appears to do in their original submissions, not so much in the document filed today.  My submission is twofold.  “Substantial” means it would have made a difference to the jury, and that is my shorthand for the proposition that we have just discussed.  But also one would then have to go on to consider both the effect of the fresh evidence on a trial and the effect on the appellant and then what I might call the X factor that is the connection to the interests of justice. 

BELL J:   Can I just take this up with you before you do move on?

MS GERRY:   Yes.

BELL J:   In light of subsection (6)(b)(iii), which directs attention to the context of the issues in dispute at the trial, we are looking at the effect of the fresh evidence taken with the other evidence on the trial that was had.

MS GERRY:   Together with the summing‑up and that was the point that you were asking earlier on.  It is not just the evidence.  It was how it was left to the jury. 

BELL J:   Indeed.

MS GERRY:   That probably is a good moment for me to deal with one of the questions that you asked Mr Borick in relation to the summing‑up and the context of the fibres.  In my submission, the direction about the fibres we have to remember comes after the direction that they have to – and those are the words already identified - consider Dr Manock’s evidence. 

My submission would be fibres might add to - and disputed fibres, in particular, might add to expert evidence but they cannot and should not stand alone.  That is the problem in this particular case.  It is the problem with Dr Manock’s evidence in the way that it was given, in the way that it was presented, in the way that it was summed up.  It has such a substantial effect that any jury hearing that actually the timing is it could go on for hours and actually the child sadly was not found for a number of hours but that would have made a difference to their decision.

It is a very basic factual issue that there is a whole passage of time that no one knows where she was and my submission would be it would be an assumption rather than an inference of death.  So one has to be very careful to ensure that we are giving due weight to the evidence.  But the summing‑up, if it assists, starts on page 2815 in relation to the timing issue that you raised earlier on.  At the bottom of the page we hear – we see Mrs Leach’s evidence and your Honours are quite right that she:

says she came home from work at about 20 to five.  Debbie was not home.  Usually she would have been home by then.  Her school clothes were hanging up as usual; the cake was in the kitchen. 

Then the evidence is:

She looked out ten minutes later from her window towards the sea.  But Debbie was not visible, although Susie, the dog, was visible playing on the beach. 

We have to remember this is a beach with large sand dunes and so on, so she could see the dog but not the child from the house.

BELL J:   Ms Gerry, I am sorry to interrupt but at some stage it may be that the Court would be assisted - I do not know whether there is a ‑ ‑ ‑

MS GERRY:   I think there is a map coming.  Yes, I believe the respondent has a map but they do not show sand dunes as well as I would like but – may I just take you through the summing‑up because there are only two or three pages?

BELL J:   By all means.

MS GERRY:   I do not think there is any dispute that this was a beach with sand dunes.  I do not know that you are going to get the exact visibility from the house but in terms of timing and fibres and so forth if I might just pursue this – what she says just to answer the questions earlier on was that the dog was visible, the child was not. 

She, herself, went looking along the beach, she first went to the beach at a time that must have been between ten minutes to five and five o’clock.  She found the dog, but not Debbie.

So I hope that answers the timing question that we had earlier on that that is where the respondent gets the 20 minute time slot from.  Our submission is that the most that that does is give a time at which she went missing.

EDELMAN J:   How far from Mrs Leach’s house is the body found on the beach?

MS GERRY:   I will make sure someone finds that out for you.  I think there is a map but I will ask for some specific information.  Can I carry on with the summing‑up while that is being done?  I can hear the flurry of paperwork and I am sorry I do not have the answer directly to hand.  But almost immediately after that piece of evidence in relation to Mrs Leach, over the page at the bottom of page 2817 we have the direction in relation to Dr Manock’s evidence.  So it is just above 25 the paragraph begins:

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

In my submission, really the jury’s task is not to fix a time as such but more importantly what the jury were being told effectively is that they have to consider the evidence of Dr Manock.  It does go on:

You will have to make up your minds –

and here it becomes important:

as to whether you accept him as a man of science, competent in his work.

I will come to our threefold submissions in a moment but they are inextricably linked that the dangers from the weight that was given to his evidence and obviously the problems that we now know from the fresh evidence, the directions and the effect - so it goes on:

You will have to determine what weight you give to his evidence, and since his evidence is in some respects founded on other evidence, especially on evidence of the stomach contents and the time of the last meal before death, you will have to examine that evidence too.

So, in my submission, the summing‑up gives additional weight to his opinion which we now know is and was wrong, scientifically wrong.  Then we go to 2885 about a third of the way down dealing with untruths and it goes on:

untruths enable you to determine the weight of the scientific evidence or add weight to it; but if you are satisfied that the evidence of opportunity and the scientific evidence justify you in returning a verdict of guilty, you will obviously not be deterred –

Of course, what that does is put the only opportunity at the 20 minutes that Dr Manock had suggested.  So, putting those two together, the opportunity is confined improperly on the science.  Then it goes on to deal with the chest to chest contact that you have already referred to at the bottom of 2885. 

So, it is for those reasons that I would submit that because the direction about the fibres comes after the direction about having to consider Dr Manock’s evidence, one has to place the fibres in a proper context, that the whole case cannot stand and fall on them.  They might add to accurate expert evidence.  They might be material circumstantial evidence that a jury could consider but as we have set out in the outline of argument, at most what we have is a suspicion and not guilt beyond reasonable doubt.

BELL J:   But in terms of the issues that were live at this trial, the direction at the bottom of page 2885 would seem to be that the jury were being directed to acquit if they were not satisfied of chest to chest contact and the only evidence that could have established chest to chest contact was the evidence – the scientific evidence respecting the transfer of fibres and other materials.

MS GERRY:   I think my answer is yes and no.  They are being directed to consider chest to chest contact but you should not, in my submission, then conclude that they had reasoned that there was.  Now, I appreciate we often, if you like, “work backwards” which is a very uncomfortable expression but we often say, well, the jury must have found that there was chest to chest contact and therefore we have to work on the basis that that was their finding. 

BELL J:   We do because they were directed to acquit your client if they did not find it and did not find it on the criminal standard.

MS GERRY:   I appreciate – yes, however, it becomes repetitive.  That is after having been directed that there was a 20 minute window plus they have a think about whether you can be sure on whether beyond a reasonable doubt there was chest to chest contact.  So, it inextricably links the two.

EDELMAN J:   Your point, as I understand it, is that the paragraph above, that references twice to what is really the heart of the prosecution case, opportunity plus scientific evidence, the combination of those two factors needs to satisfy the jury beyond reasonable doubt of chest to chest contact.

MS GERRY:   Yes, you have it and it is summed up as both together.  It is not dealt with separately, it would be my submission, and add to that the words “have to” - you have to consider Dr Manock.  It is what makes this a substantial miscarriage of justice that the whole combination of the way in which we now know the scientific evidence should have been given would have given the jury, for example, the sorts of opportunities that Mr Borick was speaking of earlier on.

The threefold issues – I am coming on somewhat to substantial miscarriage of justice so if I could just pause for a moment and go back to “compelling”, our submission is reliability is as the respondent has said.  “Substantial” must mean it makes a difference to the outcome and, thirdly, “highly probative” must be taken together with “substantial” that it is the real issues in the case, if I can use that sort of criminal hack expression, but what was the nub of the decision that the jury had to make. 

That brings us really back to, in my submission, to subsection (3) because having, as we would suggest, got over the hurdles of “fresh” and “compelling” one has to take that overall view as to whether there was a substantial miscarriage of justice.  It is perhaps this that I suggest is the X factor, that causal connection between the failures and the substantial miscarriage of justice. 

In our submission, you can deal with it in three ways.  First of all, is the danger of the emphasis on the expert evidence that we now know is scientifically wrong.  Again, the danger of the weight, whether it is emphasis or weight, to the expert opinion, so it is not just the content of what Dr Manock would say but he is the expert giving the crucial evidence that the jury are being asked to rely on. 

That understanding of a criminal trial is what substantial miscarriage of justice must be all about.  It is about thinking about how that would have gone in a criminal trial of some length and some complexity in trying to give the jury something to help them make a decision.  The emphasis on both his expertise and his scientific knowledge will have carried undue weight, in my submission, in this particular case.  Obviously, now we know that it was incorrect, scientifically incorrect.

EDELMAN J:   If, at the first stage of section 353A(1), the word “substantial” means effectively a significant possibility that a jury acting reasonably would acquit, what work would “substantial miscarriage of justice” do – in other words, when would there ever not be a substantial miscarriage of justice when fresh evidence establishes a significant possibility that a jury acting reasonably would have acquitted?

MS GERRY:   The only answer to that that I have been able to find is in the English authorities.  There are one or two decisions that we have provided in the newer bundle that deal with whether or not it is a substantial injustice.  I happen to find one or two of them distasteful but the way in which the English courts have approached it is to say well, it all went wrong and he did have a defence and nobody dealt with it, but he is out now.  He is fine.  It did not really affect his life very much.

BELL J:   I think the respondent gives a very good illustration where, notwithstanding the defect in the trial, the applicant has, in a television interview, admitted to guilt, that sort of ‑ ‑ ‑

MS GERRY:   That is an extraordinarily compelling example, but the case that I am thinking of called Ordu, that you may or may not look at, the English case very recently – it is an immigration offence where the appellant had a complete defence that was not run at trial.  The Court of Appeal in England says well, clearly, the defence should have been run.  It is a miscarriage of justice but it is not substantial injustice because it did not really do him much harm.  I find that a very distasteful way of dealing with things, but ultimately that is the added element to substantial miscarriage of justice, in my submission.  It is that added effect on the appellant.

Here, of course we have it.  We have the death penalty, the murder conviction and so forth.  But if we use a less contentious one than immigration – if we thought driving matter, you improperly receive penalty points years later, well, it is all gone, it is not a substantial miscarriage of justice.

So I would separate out “substantial” in the context of compelling in the sense of the weight of the evidence and that is because the word “evidence” appears in the beginning of subsection (6) and that the substantial miscarriage of justice is twofold.  First of all, how bad was it?  When we are thinking about how a criminal trial works, how bad was it?  Was there undue weight on a scientist who really did not know what he was doing and giving incorrect evidence and if so, what effect would that have on a jury.  We know in experience in criminal trials that the weight of expert evidence is significant on juries.  It has to be.  That is why we call the experts.  Finally, what is the miscarriage as far as the appellant is concerned? 

We would submit that we fulfil all of those requirements so that - we can assist you on the construction of the statute but also on the route you should find to reach the conclusion that this was a substantial miscarriage of justice.  If I can just pray in aid the three that I had in mind.  I have dealt with the dangers, the emphasis by the expert and the weight given to the expert’s opinion; the direction that I have already dealt with, so the weight that was given in the direction and the order in which the summing‑up was given; and, thirdly, the effect on the particular issues in the trial.

What Dr Manock’s evidence did was it – or at least let us look at it another way.  What the fresh evidence does is it gives weight to the alibi.  Dr Manock’s evidence effectively removes the alibi that was the very defence of the defendant, in our submission, or attempts to.

BELL J:   Well, when you say “alibi” that might be putting it a little high.  Your point is that Dr Manock’s evidence, if accepted, took away the possibility that another person had come onto the beach or met the deceased at a time after 4.30.  Depending on the inferential process of reasoning adopted by the jury the window may have been no more than 20 minutes, or on a more generous view, right up until, I think on Dr Horowitz’s evidence you might get as far as 11.45 pm that night.

MS GERRY:   Yes. I would put it slightly differently in that it removed that consideration from the jury.  The jury really have been directed at those 20 minutes and not the rest of the time.  I accept the criticism I have called it an alibi, but it would be after a certain time, and the timing of the dissipation of stomach contents, at least a portion of that is an alibi.

Our submission is that the effect of the fresh evidence is that we can conclude that the jury would have given much wider consideration of the evidence as a whole.  So, if we are looking at “would it have made a difference”, in our submission, it would have made a difference to their assessment of his very defence that he was not there and he did not do it.

Secondly, in a sense it would support his credit in this sense – and it is very similar to the last submission – that the jury are directed away from considering whether or not he is telling the truth because his case is balanced as against such a confident expert that we now know is wrong.  Thirdly, it does not allow the jury to direct their attention elsewhere as to who else it might be and we have to remember that this is a case in which there was a confession.

So in terms of effect, the three that I have dealt with:  danger, direction and effect, the effect is that the jury are confined when they should not have been so confined.  There are other cases that I can take you to that would give similar constructions of subsection (6)(b)(ii) but, unless I can assist the Court further, those are our submissions on the construction of the legislation.

BELL J:   Yes, thank you, Ms Gerry.

MS GERRY:   I wonder if I might just have one moment to check with Mr Borick that there is anything else that he wants me to deal with.  I believe he may return to ‑ would you excuse me a moment.  We believe that the distance from the Leach home to where the child was found is approximately 400 metres.  We will try and be more precise in the morning.

BELL J:   Thank you.

MR KIMBER:   If the Court pleases, the respondent proposes to deal with its submissions, insofar as possible, in the following way:  first, to identify the fresh evidence in the court below, at least by some appeal book references; second, assist the Court with the construction of section 353A and, in particular, those aspects of the construction that are apparently in dispute – that is, those limbs of the compelling limb of substantial and highly probative in the context of the issues in the trial and also the ultimate issue of substantial miscarriage of justice, although it appears to be accepted by the appellant that it is the test accepted by all judges in the court below of a significant possibility that a jury acting reasonably would have acquitted – not might have acted on the evidence but would have acquitted; and, thirdly, I want to turn to then apply the fresh evidence and the evidence in the trial to the respondent’s approach to construction.

Can I begin then with the fresh evidence which was admitted by all judges.  It is new science that gives further confirmation to evidence already given at trial by Dr Pocock.  In my respectful submission it is effectively this.  Gastric emptying rates between individuals are variable.  That is set out in the supplementary appeal book at 7, 8 and 11.  You cannot estimate time of death from gastric contents to within a range of one hour.  That is clearly set out at the same pages of the supplementary appeal book, evidence given by Dr Pocock. 

Now, on the assumptions about the appearance of the meal in the stomach as observed by Dr Manock, we have a range of death between about three hours and perhaps about eight hours - the supplementary appeal book, 28.  That is to be contrasted with the evidence of Dr Manock given at trial, which is at some points lengthy because of the extensive cross‑examination, no doubt based upon the upcoming, in the trial, opinion of Dr Pocock and a number of texts that were put to him.  But can I take the Court to appeal book 3 ‑ ‑ ‑

BELL J:   For those of us who have an electronic copy, can you give us the page number.

MR KIMBER:   The page reference is 638 and it is to begin with in evidence‑in‑chief, at the very bottom of 638, the question “On the assumptions that you have just told us about”- and there were a number of assumptions:

did you form an opinion as to the probable time of death –

and over on 639 at about line 5:

most likely occur of between 3.30 and 4.30.

Then in cross‑examination, pages 643, 644, so only a few pages on, at line 8, the question:

Q.As I understand your evidence . . . impossible to be precise.  A.             Yes.

Q.Do you exclude the possibility that death could have occurred at 5 o’clock or after.  A.  Yes I think I do.

Then some firming up, perhaps, from 15 through to about line 23.  Then at the top of 644, the question:

On the assumptions –

and then through to about line 15 to begin with but then also the answer at line 26 through to 30, one of those assumptions being that her gastric‑emptying rate was normal, was in the three to four hour range.  Can I then take the Court against the background of that evidence to section 353 itself ‑ ‑ ‑

BELL J:   Just before you move to that, as I understand the appellant’s case, it is that the scientific basis for any opinion of the kind that Dr Manock gave has been entirely undercut by the sorts of tests that, by the mid‑1970s, Professor Horowitz had identified so that had that information been available at the time of trial one could have had a voir dire and been confident that Dr Manock would not have been permitted to express an opinion based on gastric contents ‑ ‑ ‑

MR KIMBER:   To within a range of one hour.  Obviously enough, Professor Horowitz now says there has been further testing.  Gastric‑emptying rates between individuals vary and so the best that you can say is, say, three to eight hours or thereabouts.

EDELMAN J:   But in the context of the issues in this trial evidence of three to eight hours is virtually useless.

MR KIMBER:   It is not useless, with respect, your Honour, at least for this reason.  It does not put the time of death at a time outside the appellant’s admission that he was on the beach between 4.00 and 4.30.  So Professor Horowitz’s evidence in and of itself does allow for a wider span of time effect.  There can be no debate about that and that is not unimportant.  But it does not put the time of death outside of the time that the appellant was on the beach. 

This will be then significant for other reasons.  The evidence of Professor Horowitz has its limits as well.  The evidence of Professor Horowitz, transported into this trial, still has to be evaluated in terms of well, what really was the time of death in light of all of the circumstantial evidence in the case?  So it is important to at least observe that it does not put the time of death outside of 4.00 to 4.30 on that particular afternoon.

EDELMAN J:   But on any view she was on the beach sometime between 4.00 and 4.30 and, on any view, the appellant was also on the beach between 4.00 and 4.30.

MR KIMBER:   Yes.

EDELMAN J:   I am not sure how Dr Manock’s evidence can add to that one way or the other, if you have an eight‑hour or a five‑hour time period.

MR KIMBER:   I apologise; your Honour must be misunderstanding.  I am not saying that Dr Manock’s evidence, now that we know of the fresh evidence, particularly adds to that.  What I am saying is simply at the moment that Professor Horowitz’s evidence does not place the time of death outside of that 4.00 to 4.30 range.  The word “alibi” was used a moment ago.  It is not an alibi.  It would be an alibi if he was in a location other than where death must have occurred at a time when death must have occurred.  But he himself puts himself there in that period of time.

Can I then turn to section 353A, because the construction of this section is obviously enough, it is trite to submit, vital to the disposition of this appeal.  Can I emphasise something that is important and has not been, to date, emphasised.  With respect to all of this the appellant bears the onus.  He bears the onus as to the jurisdictional requirements and he bears the onus with respect to the ultimate issue of whether there is a substantial miscarriage of justice.

KEANE J:   Well, that would certainly be borne out by the tests that Lord Denning enunciated that we were taken to, which suggest that the fresh evidence has to tend to show the innocence of the accused.

MR KIMBER:   Yes, although one, in my submission, would have to come back to Gallagher and, in particular, Mickelberg, I think in terms of what the test is.

KEANE J:   They are probably better for the appellant than Lord Denning.

MR KIMBER:   Yes, in my submission, and that aspect of that judgment.  Lord Denning’s references are dealing with not fresh evidence, as I read those passages quickly.  They are dealing with a different issue.  In any event, this Court no doubt will turn to Gallagher and Mickelberg and there appears to be, at least, agreement at the Bar table about this.  It is a significant possibility test without articulating it in full.  There is no contest at the Bar table, it would seem, about that.  But perhaps I will come, either later this afternoon or at least tomorrow, to Mickelberg, at least quickly.

Can I ask the Court, as I said, to take up section 353A and can I make some submissions about the issue of construction?  I first want to focus upon subsection (1) which, in my submission, obviously delineates the scope of the jurisdiction.  It establishes a number of preconditions and they are set out clearly there.  First, that it is a second or subsequent appeal.  Second, that there is fresh evidence, as we will later see, defined in the section.  Third, that that evidence is compelling in the way defined and it also must be in the interests of justice to consider that evidence in the appeal.

The first observation the respondent makes is about the breadth of the exception, second or subsequent.  It theoretically allows for an unlimited number of appeals, based upon fresh or compelling evidence.  But at the same time, there has not been any modification at all of section 353 and so all of those tenets or principles of finality that attach to section 353 still exist. 

So, 353 and this exception to finality has to be read against that background and in the respondent’s submission, finality yields in one very limited set of circumstances and that suggests, in my submission, because of the importance of finality, that this section is to be narrowly construed.  It has to be coherent with section 353.  One cannot have fresh evidence that did not pass muster for a section 353 appeal but then gets in with no change under section 353A. 

The second jurisdictional requirement is obviously that the evidence be fresh and the Court will see that defined in (6)(a) of the section and, as has already been the subject of submissions, there is no contest that the relevant new evidence of Professor Horowitz is fresh. 

“Compelling” has these three limbs and, in my respectful submission, in construing this section, it is important to observe the following:  first, each is delineated by a separate paragraph, conjunctively aggregated, clearly suggesting, in my respectful submission, that each is to have distinct and separate work to do and with respect to the appellant’s approach articulated earlier today there is melding together and a mixing together such that there is no distinction between the substantial limb and the highly probative limb of this “compelling” test.

So, in my respectful submission, it is important to focus for the disposition of this appeal upon what it is that these three limbs get at; what are they directed towards.  There is no contest and there is a concession from the respondent about the reliability limb having been satisfied.  That plainly directs attention, in my submission, to the quality of the evidence; whether it is trustworthy or accurate and there is no dispute about that. 

The second limb is the substantial limb and, in my submission, substantial has two aspects that are complementary.  The first is that it must have relevance or sufficient weight but the more important question is substantial to what, because it is a protean expression, substantial to what and that cannot be answered in the abstract, in my submission.

One must look to the section itself to reconcile and decide what that is getting at and, in my respectful submission, what it is directing attention to is, is this evidence substantial to the ultimate issue on appeal and the ultimate issue on appeal is whether there is a substantial miscarriage of justice.  So, in effect, is it capable of bearing upon the ultimate question of a substantial miscarriage of justice?  If it is, then the limb will be satisfied.  If it is not, then the evidence will not be compelling for that reason alone and jurisdiction will not be satisfied.

GAGELER J:   It only needs to be capable of bearing on that issue, does it not?

MR KIMBER:   Capable of bearing substantially on the question, so not just solely relevant to a substantial miscarriage of justice but it has to be capable of bearing in some meaningful or significant way upon that ultimate question.

GAGELER J:   It does not have to be determinative.

MR KIMBER:   Certainly not because if it needed to be determinative there would ultimately be no issue once you got through the next limb and the evidence was admitted, provided you got past the interests of justice issue, you will have already decided the appeal on that basis so no. 

Then the question becomes, if that is the correct construction, how is the next limb of highly probative in the context of the issues in dispute to be construed?  If the respondent is correct this must be addressing something that is different to, separate from the substantial limb.  In the respondent’s submission, as set out in the written submissions, it invites a narrower task and it needs to be a narrower task because if it is a broad task then it swamps or overtakes the substantiality limb in and of itself or the substantial limb does all the work and there is no work to do for the highly probative limb in the context of the issues in dispute in the trial.

That begs the question at what level of abstraction are the issues in dispute in the trial to be identified.  Given the respondent’s approach to construction it must, as I have said, be addressing something different to the substantiality limb.  It cannot, in my submission, be looking just to the issue of guilt for at least two reasons:  one, that is the focus of the second limb, is it capable of bearing substantially on the question of a substantial miscarriage of justice; and, secondly, the section itself speaks of the context of the issues, plural, in the trial.  If it were only guilt, then it would be the only issue that it needs to be highly probative to; everything will be caught beneath that but there is a clear decision to make it about the issues in dispute in the trial.

Further, as the respondent submits, it is not directing attention to individual facts and opinions that might be expressed that become relevant to an issue in dispute in the trial.  It does not look at issues at such a mere level of abstraction.  If it did, what work would there be to do for the requirement that the evidence be highly probative of that individual fact or contested opinion.

So someone says “I saw something happen at 4 o’clock”; that is contested, other evidence comes along, new evidence that it was 4.30 or 4.15.  It will automatically be highly probative of that single piece of evidence.  There will be no work for analysis of highly probative to do.  If it is different to the evidence given on that fact or opinion it will automatically be highly probative. 

Second, in my submission, individual facts and opinions expressed going to issues in the trial are not issues in a trial, that is, contested facts or opinions, in the ordinary sense of legal parlance.  We talk about issues in the trial being opportunity - perhaps time of death is a subset of that - cause of death, motive, alibi, things like that, not individual opinions or pieces of evidence that shed light or are used to establish one or more of those things. 

So, in my respectful submission, the third limb does not descend to that mere level of abstraction.  It looks at a broader question of whether it is highly probative to the real issues in the way that that is normally understood in the trial.  It does not direct attention to the minutiae of these individual facts and opinions.

BELL J:   It still rather begs the question, if you have got through the test of substantiality in the way you invite us to construe the provision, it is pretty hard to think that one would not find the evidence to be highly probative in the context of the true issues in the case, evidence that can bear substantially on the critical issue of guilt.

MR KIMBER:   The respondent has attempted to come up with examples in paragraph 46 of the written submissions with respect to when those lines might be drawn ‑ ‑ ‑

BELL J:   Yes.

MR KIMBER:   ‑ ‑ ‑ in a way which would give each distinct work to do.

NETTLE J:   Accepting what you say about the meaning of (b)(iii), why would it be wrong to conclude that what is meant by “substantial” in (b)(ii) is substantial in the sense that the fresh evidence either qualifies or adds to substantially the existing evidence, leaving it to (iii) to decide upon its effect on probative value in relation to the large issues as you have described them?

MR KIMBER:   Because the section is directed to fresh and compelling evidence that can ultimately make a difference to the ultimate issue in the trial.  So why have a test of substantiality that just captures, in effect, that the evidence is relevant in some way?  Really, in effect, if you reduce substantiality down to that, in my respectful submission, it gives it so little work to do that really there are just the two limbs - (i) and (iii) ‑ ‑ ‑

NETTLE J:   That is true.

MR KIMBER:   ‑ ‑ ‑ and, in my respectful submission, there is a clear legislative intent to give each limb more work to do than that construction that your Honour Justice Nettle postulates, with respect.  As paragraph 46 of the written submissions perhaps illustrates, it is not going to be many cases in which there will be a practical consequence behind this separation but that in of itself, does not mean and should not mean, and if examples can be given it supports the respondent’s constructions, that while those circumstances which are postulated in that section might be rare, they might few; it cannot be said that they will not exist and they will not give this construction the respondent argues for validity and each limb different work to do.  Different constructions do no more than compress these three limbs and make it that really there are not three limbs at all.

BELL J:   Well, I am just still having difficulty with the three limbs in the way you identify them, Mr Kimber.  In paragraph 46, you say that:

evidence going to the offender’s identity might be substantial in its ability to bear upon the question of a substantial miscarriage –

and then you go on to say:

but if identity was not in issue at the trial – the sole issue being, say, mens rea – then the evidence will not be highly probative –

Well, on that analysis, I would have some difficulty seeing it was ever substantial in the way that you earlier defined it.

MR KIMBER:   Because it could not be substantial to whether there was a substantial miscarriage of justice.

BELL J:   Yes, indeed.

NETTLE J:   If you go back to (b)(ii) and ask the question, does this fresh evidence substantially compromise Manock’s expert testimony, the answer would have to be yes, would it not?  It may not have a highly probative effect on the issues in dispute but at the level of (b)(ii), it certainly substantially rubs out Manock’s credibility.

MR KIMBER:   It might, it might.  Perhaps, I concede, it would but that directs the substantiality limb to a far narrower question than the substantial miscarriage of justice question which is accepted by the appellant to be the question.  That more, as I view it, with respect to your Honour, is, is it substantial to the question of whether the jury might have relied upon Manock’s evidence ‑ ‑ ‑

NETTLE J:   Well, that really comes in (iii).

MR KIMBER:   ‑ ‑ ‑ and, in my respectful submission, if my interpretation of what your Honour is putting to me is correct in what I heard, that is not asking the question that this section is directed towards.  The fact that, as I will come to later, the jury might have acted upon Dr Manock’s evidence, and I cannot and I do not submit that they might not, is an important preliminary step towards the ultimate question of whether or not there is a substantial miscarriage of justice but it does not answer the question.  So, with respect to your Honour, in your Honour’s articulation of “substantial” to me, that is introducing something that does not find direct contextual support from the balance of the section.

BELL J:   Can I have one more go?  Are you able to give us an illustration of evidence that is substantial in the sense of bearing on the substantial miscarriage of justice question which must go to guilt, and which would not be highly probative in the context of the issues in dispute at the trial?

MR KIMBER:   Well, I do not resile from the example in 46 - maybe I should, but I do not – because if you had a trial in which identity had not been in issue and new evidence comes along that says it cannot have been the accused, he had an alibi, then that would be substantial to the question of whether or not there was a substantial miscarriage of justice, but it would not be highly probative in the context of the issues in dispute at the trial because identity had never been an issue in dispute at the trial.  The accused might have admitted that he was present at a certain place at a certain time.

EDELMAN J:   It may be that your distinction between “substantial” and “highly probative” could have great force if “substantial miscarriage of justice” did not mean a significant possibility that a jury acting reasonably would have acquitted.  In other words, if “substantial miscarriage of justice” meant something less than that, then the real weight would have to be picked up by “highly probative”. 

What, perhaps tomorrow, would assist me is if you could explain why “substantial miscarriage of justice” bears a different meaning in 353A(3) from that which it bears, albeit with a different onus, in relation to the proviso, and particularly in the context where in the debates about section 353A there was reference made to substantial miscarriage of justice being based on the proviso in the decision of this Court in Weiss.

MR KIMBER:   I expect I will need to come back to that tomorrow, your Honour, but in part the answer lies in coherence, coherence with section 353.  The test in 353 is that set out by Mickelberg.  It is given that content.  This is 353A, a fresh and compelling evidence appeal.  In order to be coherent with section 353, it cannot be a lesser test.  Indeed, the wording of the section says it needs to be a “substantial miscarriage of justice”; 353 is just a “miscarriage of justice”.

But ignoring that altogether, how can 353 and 353A be coherent with one another if they postulate very different tests?  Indeed, how can it be that section 353A could ever postulate a lesser test than section 353 because then you would have fresh evidence and compelling evidence, for the sake of the argument, that got through the gateways in section 353 but was not determined to be sufficient for there to be a miscarriage of justice, but that very same evidence applied to the very same trial could found a substantial miscarriage of justice under section 353A. 

So, just for that reason, the reason of coherence, and the approach that is settled with respect to section 353, it must be, as the respondent has submitted in the written submissions, that that 353 test, for want of a better word, sets a constructional baseline for what the substantial miscarriage of justice test must be under section 353A.  It is not, in my respectful submission, possible to construe both sections coherently unless that approach is taken.

Remaining for the moment with the four of the jurisdictional preconditions, and although it is not of significance in respect of the disposition of this appeal, because the construction is important the fourth aspect is that it is in the interests of justice to consider the evidence on the appeal. 

Now, there is no opposition – or the respondent concedes, I should say, that if the evidence satisfied the fresh and compelling limbs, it would not miss out, would not get knocked out, on the interests of justice limb in this particular case.

Can I turn then to, in the time remaining, make some submissions about substantial miscarriage of justice although I have already touched upon a number of the submissions that I want to make.  I have already made the point that there is an obvious analogy between the test here, once we give it content, and that under section 353.  It cannot be a lesser test.  The words of the section itself suggest that it is not a lesser test.  It is a higher test, although articulating some higher test or applying that higher test in a practical sense may be difficult in a given case.  But it must at the very least set what the respondent has described as a constructional baseline for giving content to substantial miscarriage of justice under section 353A.

Can I take the Court then to the test as it has been articulated under section 353, albeit that there is no contest in this appeal about it, and can I do that by taking the Court to this Court’s judgment in Mickelberg (1988‑89) 167 CLR 259, which is the fifth of the cases behind the tabs. Can I take the Court first to the judgment of Chief Justice Mason at page 273? It is really in the paragraph beginning “The final matter concerns the appropriate test” and in particular the second and third sentences of that paragraph.

Importantly, there needs to be engagement, in my respectful submission, when one turns to the evidence with the significance of the possibility that the jury would have acquitted.  So, it is not a theoretical possibility, it is not a bare possibility; it is a significant possibility, not that the jury would have acted upon Dr Manock’s evidence but in all of the circumstances would have acquitted. 

Can I take the judgment of his Honour – as a matter of completeness I will take the Court to the judgment of Justice Brennan and at 275 at about point 8 the sentence beginning “The formulation which, in my respectful opinion” – “likely” – he puts it higher.  Now, I do not suggest that that is the majority view, but I just put that for completeness. 

Can I then take the Court to Justice Deane’s judgment, or perhaps first at 290?  In the second paragraph at about point 10 on the page he referred to the further evidence establishing a theoretical possibility, albeit unlikely, and ultimately for Justice Deane that theoretical possibility was not enough, so he supports that it is more than a theoretical or a bare possibility.  That is reinforced by the top of page 291:

there would have been much to be said for the view that the further evidence . . . was sufficient to raise a significant possibility –

At the very bottom of page 291 in the first sentence where he agrees with the conclusions of Justices Toohey and Gaudron:

the further evidence about the theoretically possible fabrication . . . would not . . . have affected the outcome -

So, a theoretical possibility is not enough.  Finally then, can I take the Court to the joint judgment of Justices Toohey and Gaudron at 301 to which the Court was taken by the appellant where their Honours, with respect, used both terms, that is, both sets of words, “significant possibility”, but refer to:

For ease of expression . . . likely to have entertained –

But, in my respectful submission, the majority view is it is the significant possibility test.  Can I make one further submission in the time remaining this afternoon about that, and I have already made this submission, but it is an important one for the construction of the section, the application of it, but also potentially for the disposition of this case. 

One does not look at whether or not the jury might have acted upon the evidence.  Obviously enough, if a court were satisfied or if the appellant failed to satisfy the court that the jury might have acted upon the evidence, then they would not succeed in persuading the court there was a substantial miscarriage of justice.

But that finding in and of itself does not establish a substantial miscarriage.  Whether the jury might have relied upon the evidence is a first step, and the next step is whether or not, with that in mind, that jury would have acquitted.  That requires engagement with not just the evidence that was given on that issue in the trial, that directly going to that issue in the

trial, but engagement with all of the evidence in the case.  Tomorrow, among other things, I will come to the application of the evidence in this case to the construction.

BELL J:   Mr Kimber, for those of us not overly familiar with the geography of these events, it would help I think if at an early stage in your submissions tomorrow you were to just perhaps take us to that map or plan that has been suggested.

MR KIMBER:   If your Honours please, there is a plan.  I need to emphasise it is not the plan that was the exhibit in the trial because that has not been able to be located after 46 years, but it is an aerial plan that has some irrelevant markings on it.  If the appellant accepts that that shows what it was like, I am very happy to take the Court through that and also take the Court through the photographs that are in the appeal books and make some references for the assistance of the Court to the evidence about who was where, what was where, distances and so on insofar as they are reflected in the evidence.

NETTLE J:   Mr Kimber, will you take us tomorrow to the finder’s evidence?

MR KIMBER:   Yes, I will.

NETTLE J:   That would be of great assistance, for me at least.

MR KIMBER:   Yes, I will.  I will do that.  It is perhaps most helpful to do that through the appellant’s own expert, Fish, through which a number of questions were asked and a number of answers were given about the relevant aspects of that fibre evidence.  If the Court pleases.

BELL J:   Yes, very well.  Adjourn the Court to 9.30 am tomorrow for the pronouncement of orders and otherwise to 10.00 am.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY 22 JUNE 2017