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Keogh v The Queen [2007] HCATrans 693 (16 November 2007)

Gleeson CJ, Gummow and Heydon JJ

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR K.V. BORICK, QC. (instructed by Michael Hegarty & Associates)

MR M.G. HINTON, QC: May it please the Court, I appear for the respondent. (instructed by Office of the Director of Public Prosecutions (SA))

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, in the application to reopen before the Court of Criminal Appeal the Court dealt with the issue of jurisdiction as it were as a preliminary issue.

GLEESON CJ: Was that done by consent?

MR GAME: It was done by consent but, in one respect, which I will come to, the court misconstrued what we had put and that was to say that, in effect, all we said was this was a case of deliberate non-disclosure, because that definitely was not the case. What we were invited to do was to articulate – I should say that we would submit, ultimately, that is a distinction without a difference because deliberate non-disclosure by two experts of critical material is exactly the same as actively misleading evidence. But some of the evidence we relied upon we firmly submitted was actively misleading.

GLEESON CJ: When you say “evidence” it was not evidence, was it, in the Court of Criminal Appeal?

MR GAME: No. I am talking about the evidence that the doctors gave at the trial – was actively misleading.

GLEESON CJ: What do you mean by “actively”?

MR GAME: They were trying to make the Court think that what appeared on the inner side of the left leg was a bruise, was a bruise supported by the histological examination, was a bruise supported by the histological examination which showed that they were all sustained at the same time and that, to use the words of Dr James, that clinched it as the grip mark.

HEYDON J: Knowing that that was not true.

MR GAME: That is correct.

HEYDON J: You do not use this sort of language in your amended grounds of appeal.

MR GAME: We use the language in ground 3. If you look at the supplementary application book, at page 1 the Chief Justice had, as it were, a directions hearing about this. He directed the applicant to further clarify the matters that he wished to argue. That document there is the amended grounds – proposed further grounds of appeal. We were invited to put our submissions, as it were, in descending order, so from fraud to non-disclosure with mendacity to non-disclosure. The difference between 1 and 2 is that Dr James performed the role of providing expert advice to the defence and never drew to the attention of the defence the fact that – and it was quite contrary to his own evidence that there was no bruise.

GLEESON CJ: Mr Game, on the subject of documents, what is the document that is at page 97 of the application book?

MR GAME: What that is is this. In both Justice Dixon’s judgment in Grierson and in Justice Hodgson’s judgment in a case called Reardon, they both spoke of the possibility of separate proceedings to set aside the judgment. On my advice, I requested that a statement of claim be filed so that, if that were necessary, that issue could be ventilated. What happened was it was simply filed in the criminal registry attached to an affidavit. So it has not been filed. But I thought at all times that it had been filed.

GLEESON CJ: It has a court number.

MR GAME: I do not know how it got the number, but nothing has happened to that statement of claim.

GLEESON CJ: Why do we have it?

MR GAME: I do not know, but you can ignore it for present purposes.

GLEESON CJ: It indicates that, at some stage earlier this year, specifically on 23 February this year, it was in contemplation by somebody on your side of the record that proceedings would be commenced in the Supreme Court of South Australia to set aside – the what?

MR GAME: To set aside the judgment.

GLEESON CJ: The judgment of what?

MR GAME: The verdict that had entered the record as a conviction.

GLEESON CJ: Not to set aside the judgment of the Court of Criminal Appeal?

MR GAME: No. That would not be necessary.

GLEESON CJ: I see. Is it possible that those proceedings might still be commenced? I gather from what you say that you thought they had been commenced.

MR GAME: I thought they had, yes. But, your Honour, the only reason that was instituted was if it was to meet – not only to meet purely but in the sense that Justice Dixon said in Grierson he spoke of separate proceedings to set aside the judgment of the Court.

GLEESON CJ: Are you telling us that you contemplate taking such proceedings?

MR GAME: What I would say is this, your Honour. In my submission, things have moved along since this case was argued because this Court – we actually relied on what was said in Weiss, but in Elliott it was confirmed that the statutory equivalent of section 359(e) really did give the Court of Criminal Appeal all the powers that the Supreme Court has on appeal and in its civil jurisdiction. So that, when one looks at the setting aside cases in the civil jurisdiction, such as Metwally and Codelfa, an established exception is fraud and cases such as Jonesco v Beard make it clear, we would submit, that there is no question of finality.

We put a specific argument to the Court about section 359(e), which was never addressed. This is significant because at the time there was a judgment in South Australia, which we have not referred to here, called McAdam v Robertson 1999, in which it was held that 359(e) was only facilitative.

GUMMOW J: It is (f), is it not?

MR GAME: I am sorry, your Honour, it is (f). Coming back to something that was raised with me before, I do want to make it quite clear that there could not have been any doubt that we were arguing that the doctors were actively misleading.

HEYDON J: That may be so, but the amended grounds of appeal do not say that, and nor does the statement of claim.

MR GAME: But “false and misleading” is what is said in the amended ground of appeal.

HEYDON J: “False” means “untrue” and “misleading” means “lead into error”. Those words say nothing about mental states.

MR GAME: Could I read to you what I said. Chief Justice Doyle asked me a question. What I am saying is “What do you say to the proposition, had the right questions been asked at trial, the right facts would have come out and this point would have been ventilated?” Now, what was said by me – “That is partly why I was relying on the special position of an expert. Secondly, the answers that were given were actively misleading. For example, that last answer of Dr James’ that I put to you could not have thought otherwise but that the bruises were observed on all four sides.”

We have lost this case on the basis that Grierson does not permit re-opening. But by no means has it been settled, as it were, correctly, in our submission, how high or correctly construed by the Court of Criminal Appeal how high we put our case. In the supplementary application book, in the document we gave the particulars of the material that we relied on. If one goes to those, one sees at page 7 in the supplementary book a list of factual matters. Now, 1, 2, 3 and 4 are all based on an allegation of deliberate misleading by the witnesses. That is what the extracts show.

GLEESON CJ: Mr Game, the statement of claim at page 97 does not seek to have the judgment set aside on the ground that it was obtained by fraud, it seeks to have the judgment set aside on the ground that it was unreasonable.

MR GAME: Yes, your Honour. It would have to be redrafted, but that does not touch on the merits - - -

GLEESON CJ: There is one rule of pleading that is fairly clear, and that is that allegations of fraud must be distinctly made and explicitly pleaded.

MR GAME: Yes. This document was put to one side. In the Court of Criminal Appeal I distinctly made, over and over, the submission that what was said was actively misleading.

GLEESON CJ: Is it your submission – and it may refer to what you said about the contemplation of the future of this matter – that, by proceedings of the kind that we see contemplated on page 97, you can have this judgment set aside if you can establish fraud?

HEYDON J: Red-blooded fraud.

MR GAME: Red-blooded fraud. We say that the Court has jurisdiction to deal with that allegation in these proceedings.

GLEESON CJ: But is it your contemplation, if you lose, that you will commence proceedings - - -

MR GAME: It is our contemplation,

GLEESON CJ: - - - amending the statement of claim - - -

MR GAME: Yes, your Honour, and filing it.

GLEESON CJ: Amending the statement of claim to allege fraud and to file it?

MR GAME: Yes. Then, no doubt, it will be said against us that that is something that we cannot allege in respect of a criminal conviction, just as it has been said against us that we can make another application for a pardon.

GLEESON CJ: A pardon or a referral.

MR GAME: No. I mean a referral, sorry.

GLEESON CJ: I presume section 369 of the Criminal Law Consolidation Act is available in South Australia in this case.

MR GAME: Yes, but unlike in New South Wales, there is no means by which a person in Mr Keogh’s position can make an application direct to the court.

GLEESON CJ: It goes to the Attorney-General. Is that right?

MR GAME: The Attorney-General says “no” three times, possessed of this information.

GUMMOW J: Is there any attempt to have judicial review of that decision?

MR GAME: There is a South Australian case that says you cannot get reasons in respect - - -

GUMMOW J: That is not an answer to the question.

MR GAME: Not so far, your Honour, but there is a South Australian case called von Einem which says you cannot

GUMMOW J: Yes. We have read that. It is referred to in the submissions.

MR GAME: May I just make this point about active dishonesty. It was made quite clear to the court that we made our submissions, as it were, as high as it was necessary to strike at the idea of fraud as contemplated in the Jonesco v Beard sense. If there was any reticence – and there was not – one was, as it were, being circumspect about accusing doctors of being liars in open court. But that is what I was putting to the court. May I give your Honours an example of that.

In this group of items, when you look at page 20 – it has to be understood that Dr James only now, when confronted with evidence that the slide shows that there is nothing to support it was a bruise says that was always his opinion. Yet he relied on that bruise to, as it were, clinch it with respect to the grip mark. If you look at page 20 you see at the bottom of the page – if you follow that through, the last question:

Mr David: From that you could say you have seen four slides of bruising.

Dr James: Yes.

That, in context, is deliberate misleading because Dr James, according to his current evidence, says that he was always of the view not only that it did not show a bruise but that it was not a bruise. So the cross-examiner could not have helped but be, as it were, actively misled by that example. I can give other examples in those first four. In respect of the cause of death there may be an issue about the question of deliberate non-disclosure in relation to the basis upon which the opinion was given that this was freshwater drowning, based on what is called differential haemolytic staining.

If your Honours go to page 114 of the application book, you will see – it has to be understood that Chief Justice Doyle decided this case on the basis that Grierson did not permit of any substantial exceptions. We were arguing that there were established exceptions, namely that the case had not been heard on the merits because the true facts could not be ascertained because the true facts were concealed; that there had been a denial of procedural fairness in the non-disclosure of this matter or that, again, the specific exception referred to, or the specific other circumstance referred to in Grierson, namely fraud, was made out. If we go to page 114, you will see that his Honour acknowledged - - -

GUMMOW J: I do not think you understand what is being said in Grierson about fraud, Mr Game, I am afraid.

MR GAME: But I do understand, your Honour. What is being said is that separate proceedings can be taken in equity to set aside the judgment, based on - - -

GLEESON CJ: Which is what you have in mind on the page I referred you - - -

MR GAME: But, your Honour, it would be unconscionable if we were knocked out of Court here because we have in mind some possibility of some proceeding which the very ability of us to bring it will be hotly disputed.

GLEESON CJ: No. I only asked what the – the document was in the papers, and I read it.

MR GAME: I understand. It was a mistake that it was put in the papers. I am sorry. I did not settle the book, I should have. It was a mistake that was put in the papers. In Grierson what is said by - in our opponent’s list of cases the relevant passage in Grierson - - -

GUMMOW J: What is the relief granted in the exercise of this equity jurisdiction, Mr Game? It is an injunction against the party who has the benefit of the common law judgment from acting on it. How is that possibly adapted to a criminal conviction?

MR GAME: If that is the case, then we - - -

GUMMOW J: What is being said there is in apposition.

MR GAME: Your Honour, Justice Hodgson also referred to this and alluded to the possibility of separate proceedings to set aside the judgment so obtained.

GUMMOW J: Has that ever happened?

MR GAME: No, your Honour. But this is a case where the ability to, as it were, assert that this man’s conviction was obtained by wilfully false evidence of a forensic pathologist who can be shown neither to have been competent nor honest, where this man has no review of any kind, the idea that finality steps over that is an extraordinary one in our submission. If 359(f) has the operation which it is given, then we fall squarely within the principles relating to civil appeals and I have referred to two cases – Metwally and Codelfa. In Metwally fraud was referred to as a specific exception – fraud and mistake are the - - -

GUMMOW J: That is before “perfection”, is it not?

MR GAME: No, your Honour, it is after - - -

GUMMOW J: Metwally was a case before “perfection”.

MR GAME: Metwally said that it applied - - -

GUMMOW J: Metwally was a case before “perfection”.

MR GAME: I am not sure about that, but it did say “after perfection”. Codelfa also spoke of irremediable injustice being a circumstance in which finality could be overcome. In this case, this person may have no ability to have in any curial context the issue decided which he asserts and has a good deal of evidence to support. It is elaborate and it is complex, but it shows in our submission that the forensic evidence at trial was of no weight, and it was put falsely, deliberately by Dr Manock to support a false theory that he advanced.

I wanted to take your Honours back to the judgment at page 114. The Chief Justice referred to the fact that we put that we could establish, if necessary, that the non-disclosure was deliberate. Deliberate non-disclosure of material facts in our submission is no different than deliberate misleading by positively false statements. There are many examples in the law of this, for example, a prospectus in - I am sorry, the light has come on. Shall I stop, your Honour?

GLEESON CJ: No, just finish what you were going to say.

MR GAME: .....is an example where a document was false or misleading by omission; Hawkins was a confession that was obtained by the omission to State facts. There are in fact prerogative relief cases, one of which I referred the Court to called Muirhead and Bracegirdle where fraud was established by non-disclosure of something that was happening in other proceedings.

GLEESON CJ: Thank you, Mr Game. Yes, Mr Hinton.

MR HINTON: If the Court pleases, in my submission there are in essence four reasons why special leave should be refused. Firstly, it is not actually suggested that the Grierson decision was wrongly decided or has given rise to any difficulty in application. Secondly, the circumstances of this case are effectively on all fours with Grierson and indeed the other High Court authority of Postiglione, in that fresh evidence has come to light since the conviction that the applicant now wishes to put before a court – I am sorry; since the appeal – and reopen.

In both decisions, Postiglione being in 1997, this Court has said there is no power to reopen. Consequently, the Court of Criminal Appeal judgment is not attended by sufficient doubt as to give rise to a grant of special leave. Thirdly, in my submission it is drawing a particularly long bow to characterise what has occurred as amounting to fraud, deception and non-disclosure by the prosecution such that the - - -

GLEESON CJ: I am not sure how we would test that proposition one way or the other. We do not have any findings of facts by the Court of Criminal Appeal, nor indeed was there any evidence before the Court of Criminal Appeal. It is always possible to characterise erroneous evidence as misleading. It is always possible to characterise an error made by a witness or an error made by a barrister, for that matter, as misleading the court in some way. But whether that amounts to an accusation of fraud is a different question.

MR HINTON: That, with respect, makes it particularly difficult in considering this application, in that your Honours are being asked to take the applicant’s case at its highest, that case having never been tested or the subject of findings of fact, as your Honour the Chief Justice pointed out. That is a deficiency, in my submission, that counts against a grant of special leave. The fourth reason why special leave should be refused in my submission is that, although the Court of Criminal Appeal did not specifically deal in detail with the interpretation to be given to section 359(f), in passing, the Chief Justice did refer to that power as being supplemental.

GLEESON CJ: Where is that?

MR HINTON: In the application book at page 115, paragraph 46. In my submission, that albeit brief statement is correct and not attended by sufficient doubt to warrant a grant of special leave. If I can elaborate upon those four reasons briefly, with respect to Grierson’s case, this application invites its reconsideration. In my submission it has been uniformly applied across the country without great difficulty. The Chief Justice refers to the relevant cases in the other jurisdictions in the application book at pages 123 to 126. So there arises from its application no reason in itself for it to be - - -

GLEESON CJ: Grierson is, is it not, a case about the interpretation of a State Act of Parliament?

MR HINTON: It is.

GLEESON CJ: Grierson is a decision about the interpretation of a State Act of Parliament that was made about 70 years ago. Over those 70 years, has the State amended its Act of Parliament in a matter that seeks to overcome in any way the effect of Grierson?

MR HINTON: No, your Honour. Section 353(1) remains substantively the same as the New South Wales provision that was under consideration in Grierson and, of course, Grierson itself relief upon or referred to the South Australian case of R v Edwards, which decided the matter in the same way. It referred to it with approval. So we have for 70 years authority on the same provision, yes, applied uniformly, it would seem, or features uniformly across the country and no great difficulty in its application.

What the applicant seeks to do is to expand the application of Grierson. It seeks to do that in the face of this Court approving Grierson or citing Grierson with approval as recently as last week. It also seeks to do it against the background of a case which is virtually on all fours with Grierson in terms of the evidence becoming available post-conviction and it also seeks to do so against the background of this Court in Postiglione in a similar situation, evidence becoming available after a conviction against sentence being dismissed, again applying Grierson. In my submission, there is no reason to revisit Grierson that arises on this application.

GUMMOW J: Can you just explain to me how section 369 operates in South Australia?

MR HINTON: In practical terms, your Honour, what occurs is a written application is forwarded to the Governor; the Governor then refers it to his Ministers. In practical terms, the Attorney-General will take control of that. He will refer, normally, to the Solicitor-General. The Solicitor-General will consider the petition and everything relevant to it, deliver his advice to the Attorney-General and then the Governor will take the advice of the Ministers in Council on the petition. There is in section 369 power to refer the case or any particular question that might arise out of the petition to the judges of the Supreme Court for their assistance.

GUMMOW J: Do you say that power is unreviewable, do you – completely unreviewable?

MR HINTON: That is not a – the authority of von Einem says it is at the moment.

GUMMOW J: It says it is completely unreviewable, does it?

MR HINTON: I must confess to not having read it in recent times. I cannot answer your Honour’s question.

GUMMOW J: It seems to say no obligation is implied to give reasons. That does not mean it is completely unreviewable.

MR HINTON: That is true, your Honour.

GLEESON CJ: I think you may have in one respect understated the effect of section 369. If it is in the same form now as it was in von Einem – and that is where I am reading it from – one of the powers is:

to refer the whole case to the Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal - - -

MR HINTON: Yes, your Honour. That remains the case.

GLEESON CJ: So what happens is that an application for the exercise of the prerogative of mercy is turned into a further appeal. That is the kind of procedure, is it not, that was followed in the United Kingdom in relation to some well-known cases of alleged miscarriage of justice, although of course the power there was the power of the Home Secretary.

MR HINTON: I think your Honour is right. Your Honour is referring to the IRA cases of the early 1990s, I think.

GLEESON CJ: Yes.

MR HINTON: The errors in the experiments conducted by the forensic scientists.

GLEESON CJ: Yes. As I read the decision in Grierson, the presence in State statutes relating to criminal appeals of a provision like section 369 in the South Australian statute was a material part of the reasoning to the conclusion they came to about the question of re-opening appeals.

MR HINTON: It certainly was when it comes to the judgment of his Honour Justice Rich in the respondent’s book of cases behind the first tab at page 434. At the bottom of 434 of the judgment his Honour Justice Rich refers to “sec. 475 of the Crimes Act and sec. 26 of the Criminal Appeal Act of 1912”, which I understand to be the New South Wales equivalence, albeit more elaborate, of section 369.

HEYDON J: Chief Justice Jordan relied on that too, and Mr Justice Starke agreed with his reasons.

MR HINTON: He did, if your Honour Justice Heydon pleases, and indeed Justice McTiernan agrees with both Justices Rich and Dixon in Grierson’s case.

GLEESON CJ: So that is a power in the Attorney-General to refer the matter to the Full Court and when it is so referred it then becomes another appeal. Is that right?

MR HINTON: Yes, your Honour.

GUMMOW J: Which could strike at a conviction.

MR HINTON: Yes, your Honour. It is a discretion in the Attorney-General. As your Honours may have picked up from the papers, there have been three petitions made in this matter to date. I will be corrected if I am wrong, but none of the three have been referred to the court as yet. That does not mean, of course, that there cannot be a fourth, fifth or sixth petition, should the applicant so choose. There is no limitation upon the number of petitions that can be made.

GLEESON CJ: But you say there is no capacity for judicial review of the decision in that regard?

MR HINTON: I can put it no higher on my feet than von Einem stands as an obstacle to that.

GUMMOW J: Not even for Wednesbury unreasonableness?

MR HINTON: I must confess to not having read the authority of von Einem and, subject to doing that, would be not really assisting you to say yes or no in answer to your question. The authorities that do discuss possible exceptions to Grierson’s Case all concentrate on whether or not a matter has been heard or determined on its merits. So we have exceptions where a notice of appeal has been abandoned or where there has been a denial of procedural fairness, or where the court itself has operated upon some kind of misunderstanding of the law or of fact. In this case there is no suggestion of that occurring.

The common thread that is woven through the cases that discuss exceptions is that the error, or the defective exercise of the power, lies with the court for one reason or another. That is not this case. This is an exception or an attempt to craft an exception that is far removed from those in the past discussed. There is no suggestion that procedural fairness was not afforded to the applicant; there is no suggestion that the court misunderstood the evidence or the law. All grounds of appeal advanced were subject of the judgment.

There is nothing that has moved from the court to indicate that it has not exercised its power or exercised its power defectively. In my submission there is, therefore, no basis upon which to extend that line of reasoning in this case and that in itself is a further reason for not granting an application of special leave. If the Court pleases, I have dealt with section 359(f). Those are my submissions.

GLEESON CJ: Thank you, Mr Hinton. Yes, Mr Game.

MR GAME: If the Court pleases. Firstly, in respect of section 359(f) and the judgment of the Court of Criminal Appeal at paragraph 46, having regard to what I said to your Honours before about the case of McAdam, it could not taken that, in any sense, the court understood or accepted the width of the power that we submitted the court had under section 359(f). It merely refers to the fact that they are referred to as supplementary powers. For them to have done so, they would have had to have overturned their own earlier decision in McAdam v Robertson.

Secondly, there is a critical point of distinction between Grierson and this case in respect of the power to refer the matter back to the court. In Grierson the relevant provision was section 475 of the Crimes Act (NSW). The petitioner can apply directly to the court in those circumstances. Here the reference back has to be made by the Attorney-General.

GLEESON CJ: What about the Western Australian provision that was relevant in Mallard?

MR GAME: That was different again. That was in effect the second appeal. I looked at Mallard at one stage in relation to this case. I was satisfied that it was different from this.

GLEESON CJ: I believe you are right when you say it was different, but I am just trying to - - -

MR GAME: I cannot remember.

GUMMOW J: There was a reference by the Attorney-General, though.

MR GAME: I am sorry. There was a reference made.

GLEESON CJ: Yes. Indeed, the provision in section 140 of the Western Australian legislation seems to be the same as the provision in section 369 of the South Australian legislation.

MR GAME: So he got his second appeal because the Attorney had referred it back.

GLEESON CJ: I think that is right, but I think you are right when you say it is not directly relevant to this.

MR GAME: The other thing I wanted to make clear is this, that there are other decisions of this Court such as the joint judgment of Justices Dawson and Gaudron in Postiglione and Pantorno that suggest that, in circumstances where a denial of procedural fairness can be shown, then there is an exception to Grierson. But, in addition, we sought to develop to the Court of Criminal Appeal that there were a number of cases which had, as it were, developed through the cases exceptions to Grierson, particularly what is meant by “heard on the merits”. That is a question. The Chief Justice in this case took the strictest possible view of Grierson.

GLEESON CJ: But is it your submission that whenever it is alleged that a witness at a criminal trial gave deliberately untrue evidence, there was no hearing on the merits?

MR GAME: No, your Honour.

GLEESON CJ: That is a very common allegation.

MR GAME: I understand that, but in this case I cannot emphasise strongly enough how this evidence is the centrepiece of the Crown case – this evidence about the bruise on the medial side of the left leg. It is there. It was said over and over again by the prosecutor to the jury; it was emphasised that it was at the centre of the case.

We can show that that evidence was false. My submission is this, that if – I am not saying simply the making of an allegation gives jurisdiction, the question in this case is the court decided in effect that a strikeout point whether or not we had a case that could be considered. As I said, we put our case in a series of different gradations.

GLEESON CJ: You did tell us that the procedure that was followed by the Court of Criminal Appeal was followed by consent.

MR GAME: Yes, your Honour, it was followed by consent, but not with the contemplation that we would fall between the cracks on the basis that the court did not understand that we were putting to them in the clearest terms, one portion of which I read to you before, that this was deliberately dishonest evidence about a very central and material part of the case.

GLEESON CJ: I thought the Chief Justice said he did understand that. He used the expression “akin to fraud”.

MR GAME: Yes, he did say that. He said that at the passage I took your Honours to at page 114.

HEYDON J: Page 114, paragraph 39.

MR GAME: If that is the case – that is what I put to the court and that is where we say jurisdiction arises in a case where fraud is alleged in respect of a fundamental aspect of the case. All I was trying to deal with was the idea that we were putting something less.

GLEESON CJ: Thank you, Mr Game. We will adjourn to consider the course that we will take in this matter.

AT 1.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.14 PM:

GLEESON CJ: The South Australian Court of Criminal Appeal held that, under the terms of the Criminal Law Consolidation Act 1935 (SA), it had no jurisdiction to reopen an appeal by the applicant against his conviction for murder on the grounds on which he relied. The applicant was convicted in 1995. He appealed unsuccessfully to the South Australian Court of Criminal Appeal against the conviction. The appeal was dismissed. A later application to reopen that appeal was heard and dismissed by the South Australian Court of Criminal Appeal. In October 1997, the applicant sought special leave to appeal to this Court. In support of the application to reopen, and the application for special leave to appeal to this Court, it was said that, very soon after the verdict of the jury, a decision of a coroner made findings adverse to Dr Manock, who had given vital evidence against the applicant. This Court, constituted by Chief Justice Brennan and Justices Toohey and Hayne refused the application for special leave to appeal.

The latest attempt to reopen the appeal to the Court of Criminal Appeal was based on information said to have come to light in 2004 and later. That information is said to cast further doubt on the case against the applicant, including the evidence of Dr Manock. The Court of Criminal Appeal upheld an objection that it had no power to reopen the earlier appeal on the grounds relied on by the applicant. It made no findings on the substance of the applicant’s contentions, or the evidence said to cast doubt on the prosecution case. That evidence was not adduced or tested in the Court of Criminal Appeal, nor was any countervailing evidence or argument examined. The matter was dealt with in the Court of Criminal Appeal as a legal question of the power to reopen an earlier appeal. The procedure that was followed by the Court of Criminal Appeal was adopted by consent.

There are provisions in the legislation of South Australia and of other States for other forms of review of matters involving alleged miscarriages of justice which cover cases where rights of appeal have been pursued and exhausted. The existence of those provisions was a matter taken into account in the case of Grierson, to which reference will shortly be made. The South Australian provisions have been invoked by the applicant, but we are told that that has so far been without success. The case has been argued here on the basis that it is irrelevant to the question we have to decide.

Rights of appeal are created by Act of Parliament. Acts of Parliament decide the jurisdiction and powers of Courts of Criminal Appeal.

The decision of the South Australian Court of Criminal Appeal, which is the subject of the present application, was delivered by Chief Justice Doyle with whom Justices Bleby and Sulan agreed. The Chief Justice followed and applied a 1938 decision of this Court in a case of Grierson v The King [1938] HCA 45; (1938) 60 CLR 431. That decision upheld a decision of the New South Wales Court of Criminal Appeal concerning its powers under the relevant New South Wales statute. The New South Wales Court of Criminal Appeal had followed and agreed with an earlier South Australian decision in a case of Edwards.

The decision in Grierson has been followed and applied in many cases throughout Australia. No doubt it has been acted upon countless times by lawyers advising clients as to their rights.

The cases in this long line of authority are cases about the meaning and effect of legislation, governing rights of criminal appeal, enacted by State Parliaments. It goes without saying that, if State Parliaments had wished to alter the legal consequences of those decisions, they could have done so by amending their criminal appeal legislation.

The decision in Grierson was considered, and a passage from the judgment of Sir Owen Dixon was applied, by this Court in Elliott v The Queen [2007] HCA 51 as recently as last week. There has been no decision of this Court, between 1938 and the present time, that casts doubt on Grierson. It has been followed many times by State courts, and its effect has not been overtaken relevantly by legislative amendment. As the Court of Criminal Appeal of South Australia rightly held, it stands as authority against the proposition for which the applicant contends.

For those reasons, we are of the view that there are insufficient prospects of success of overturning the legal basis of the decision of the Court of Criminal Appeal of South Australia to warrant a grant of special leave to appeal in this matter.

The application is dismissed.

The Court will adjourn to reconstitute.

AT 1.21 PM THE MATTER WAS CONCLUDED

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