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This report has been edited by: Dr Robert N Moles
Underlining where it occures is for editorial emphasis

R v Keogh [2007] SASC 226 Supreme Court of South Australia

Link to full text of R v Keogh report

22 June 2007 - Court of Criminal Appeal: Application

Doyle CJ, Bleby and Sulan JJ

Doyle CJ

The issue before the Court is the power of the Full Court, exercising its powers to hear an appeal under s 352 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), to “re-open” an appeal against conviction for the purpose of the Full Court hearing further submissions supporting an appeal against the conviction in question. 

The application before the Court is described as an application to “re-open” the appeal because Mr Keogh previously appealed against his conviction. That appeal was dismissed after a hearing before the Full Court differently constituted.  The application now before the Court invites the Court to consider further submissions attacking the conviction, based on the record of the trial (which was before the previous Full Court) and further material which was not before the previous Full Court.

Background

On 22 December 1995 the Full Court dismissed an appeal by Mr Keogh against his conviction for the murder of Ms Cheney on 18 March 1994.

On 4 April 1997 Mr Keogh filed an application for an order that the appeal against conviction be re-opened, to enable him:

“To present argument in support of a new ground of appeal namely, that the trial miscarried by reason of the unavailability at trial of evidence which would establish that no reliance could be placed upon the opinions and evidence of Dr Manock.”

Dr Manock is a pathologist who carried out an autopsy on Ms Cheney. He gave evidence at the trial about that autopsy, as to the cause of death (freshwater drowning) and as to the manner in which Mr Keogh might have drowned Ms Cheney. This latter aspect of the evidence relied in part on evidence of bruising on Ms Cheney’s legs.  Another pathologist, Dr James, gave evidence for the prosecution, and two pathologists gave evidence for the defence.

The Full Court, constituted by the same judges who heard the appeal in 1995, heard submissions on the application. On 13 May 1997 the Full Court held that the application was “incompetent” and dismissed it.

On 3 October 1997 the High Court refused to grant special leave to appeal against the decision of the Full Court dismissing the appeal.  On the same day the High Court refused to grant special leave to appeal against the decision dismissing the application for an order re-opening the appeal.

On 23 February 2007 solicitors for Mr Keogh filed an application for an order that the appeal dismissed on 22 December 1995 be re-opened. The application states that Mr Keogh wishes to present evidence that the autopsy carried out by Dr Manock on Ms Cheney was “incompetent and inadequate upon which to establish both cause and manner of death”.

The Court as presently constituted (the other three judges having since retired) heard argument on the question of whether it has power to re-open or resume the hearing of the appeal against conviction. For that purpose the Court had available to it extensive written material indicating the evidence that would be tendered by counsel for Mr Keogh, and the argument that would be put by counsel for Mr Keogh on the basis of that evidence, if the Court re-opens or resumes the hearing of the appeal against conviction. The submissions before the Court proceeded on the basis that it was the material before the Court, and no other material, that would be relied on.

In effect, the Court has heard submissions on a challenge by the Director of Public Prosecutions to the Court’s jurisdiction to grant the application made to it, and to the competence of the application. The Court has done so with knowledge of the arguments of fact and law that would be advanced if it re-opens the hearing of the appeal, but without the Court deciding whether all or any of the proposed evidence is admissible. The Court heard no submissions from counsel for the Director on the admissibility of the proposed evidence, nor at this stage does the Court have an indication of the evidence that the Director would tender in answer to evidence admitted by the Court on the application of Mr Keogh.

There are potential difficulties with this procedure. However, it seemed to the Court the preferable approach to take, because otherwise the Court would be committed to a lengthy hearing on the facts before the Court decided whether it has power to grant the application.

The trial and the first appeal

Before coming to the power of the Court to entertain the application made to it, it is desirable to outline the attack that Mr Game SC, counsel for Mr Keogh, proposes to make upon the conviction. As a preliminary to that, it is desirable to provide an overview of the evidence at trial from Dr Manock, and from the other pathologists.  The following extracts are taken from the reasons of Matheson J for dismissing the appeal against conviction: R v Keogh (unreported, 22 December 1995, S5397.1).  Matheson J began as follows:

“The appellant was convicted by a jury of murdering his fiancée, Anna Jane Ross Cheney, (the deceased), on 18 March 1994.  The jury must have accepted the Crown case that the appellant killed the deceased by deliberately drowning her in the bath of her house in which they had both been living at Homes Avenue, Magill. It was never seriously suggested that the deceased had committed suicide or that a third person had been involved. The defence case was that the bath was very slippery, the deceased was tired and affected by alcohol, that she slipped or fainted, and accidentally drowned. There is no complaint by the appellant about the trial Judge's actual directions to the jury, which, in my opinion, were a model of thoroughness, clarity and fairness. The grounds of appeal are:

Ground 1: The Learned Trial Judge erred in admitting the evidence of the witness [MG]

Ground 2: The Learned Trial Judge erred in admitting the evidence of the witness [PM]

Ground 3: The Learned Trial Judge erred in not permanently staying the trial because of irreparable unfairness due to pre-trial publicity;

Ground 4: The verdict of the jury was unsafe and unsatisfactory.”

Matheson J dealt with the first three grounds. There is no need to say anything about them. He then turned to the fourth ground, which involved an attack on the evidence from Dr Manock about the cause and method of death.

Matheson J outlined the evidence from Dr Manock as follows:

Dr Manock performed the autopsy on the deceased on Sunday 20 and completed it on Monday 21 March. He said that she appeared internally to be a healthy young woman. On the left shin towards the lateral [outer] side, he noted three faint bruises on the calf and a single bruise on the medial or inner side of the left calf. On the right shin he noted seven small circular bruises in a vertical line along the anterior [front] border of the subcutaneous part of the right tibia. He was asked if it was possible if the bruises on the left leg appeared to be consistent with a particular cause and he answered:

Yes. It was possible to cover the bruises by putting a hand over the leg and a thumb approximating to the bruise on the inner aspects of the left leg and the three forefingers would encompass the bruises on the right aspect. That is if the right hand is placed beneath the calf and the thumb then comes on the inside of the calf. The little one may have been there, but it usually hasn't sufficient force to leave a bruise.

He said that if the leg were held in that position, that would be a cradling of the back of the leg in the hand.

He said that the bruising on the legs was sustained at or about the time of death or at the earliest four hours prior to death. Near the centre of the scalp, there was a diffuse bruise approximately three centimetres in diameter, which appeared to have occurred shortly before death. Partially overlapping this bruise was a further bruise of a similar size, but of less intensity. He also found two further bruises on the back of the neck where the neck muscles adjoin the base of the skull. He described the two bruises on the back of the neck as oval, each two centimetres by one centimetre. He was unable to discern which came first. They were relatively faint which was one of the reasons he thought there were sustained at about the time of death. He said they were consistent with the head striking a flat surface or a flat surface striking the head. The amount of force required would be very slight. There was no corresponding internal damage. On the basis of the external injuries he observed and his opinion that the cause of death was freshwater drowning, Dr Manock said:

If the person is sitting at the plug end of the bath and an arm is put underneath both legs to grip the left calf, either by simply lifting or lifting the leg and pushing the head, then the head could slide under the water. At this time, the edge of the bath could cause bruising to the back of the neck or the muscles attached to the base of the skull. If the movement is then continued and the legs are folded over entirely, this would have the effect of trapping the arms by the sides of the bath and the top of the head would then be against the top of the bath and that would give a flat surface that could cause the bruising to the top of the head. The left leg has been gripped. However, the right leg is merely encompassed by the arc of the arm and can move. If it thrashes around, it will bang itself against the edge of the bath and may produce bruising along the border

He went on to say that action such as that just described would produce rapid unconsciousness.

Matheson J then dealt with other evidence, such as whether the deceased would have had a chance to call out or would have struggled in a way that produced bruising. He referred to Dr Manock’s evidence about consumption of alcohol and fainting as causes of accidental death. He then referred to the evidence of Dr James, another pathologist called by the prosecution. He referred to evidence from Dr James about the possibility of accidental death, which Dr James discounted. He then said, referring to Dr James’ evidence:

He was asked to comment on Dr Manock's opinion about the bruising on the left lower leg. He said that gripping by a hand was the most likely explanation. He said that bruising on the right shin was easily caused because there is no soft tissue underneath it. He said the row of seven bruises down the front of the right shin could represent grip marks from individual fingers. He also thought the bruises were caused at or about the time of death and that three to four hours was probably the outer limit. He did not think that the bruising on the top of the head and the back of the neck could be caused by one blow. Nor did he think that all the bruising could be caused by a simple fall in a confined bathroom. He said if drowning were to result from a fall in a confined bathroom causing loss of consciousness, the body would have to be submerged in such a way as to cause drowning. In cross-examination, he reiterated that he did not think a simple fall in the bath could accommodate the pattern of bruising that was seen. He said that there would have to be a rather complex choreography to accommodate the bruising to the top of the head and the bruising on each side of the neck being sustained at or about the same time. He could not exclude the possibility of unconsciousness before drowning by itself as a medical opinion. He reiterated his opinion that if the bruises on the left ankle resulted from grip marks, then an assumption that the bruising on the right shin was caused in the same way was logical. He said that the absence of a fourth finger bruise did not cause him any concern. He said it may be that the nature of the grip was such that the thumb applies pressure, anchoring the pressure from the main three fingers, and the small finger, for instance, might apply minimal pressure, or insufficient to leave a resultant bruise”.

Matheson J then turned to the evidence of the pathologists called by the defence. He said:

The first forensic pathologist called by the defence was Dr Ansford. He agreed that the explanation of the marks on the left leg given by Dr Manock, and apparently accepted by Dr James, was possible, but he said that his experience of finger bruises was that they all tended to be the same size. In cross-examination, he said the difference in intensity and shape of the three bruises on the outer aspect could be explained by a difference of pressure being exerted by the three fingers. He said he saw no reason to doubt Dr Manock's observation that the bruises all appear to have been about the same age. As far as the seven bruises on the right leg were concerned, he could not see how they could be produced by one application of force with a flat object, but he had less difficulty with visualising it jerking against the side of the bath. He said that medically and forensically speaking, he could not exclude accident as a cause of drowning whether or not it resulted from a slip in the bath. He suggested that although there was no history of epilepsy or myocarditis, either could have caused a loss of consciousness. He agreed that if death in this case was occasioned by a slip and a fall, it would have to be a complex fall given the injuries that were observed, and that it would be necessary for the body to fall in the bath so that the airway was submerged under water. It would also be necessary for the person not to revive after being submerged. He did not think that a faint as a result of postural hypotension was a likely cause of death on its own.

Professor Cordner agreed that Dr Manock's explanation for the bruises on the left leg was a possible one. He said I think that one is really only limited by one's imagination as to how else those bruises might have occurred. He said he thought there might be accidental explanations for that number and distribution of bruises resulting from the exigencies of walking around, standing in crowded rooms, getting on and off buses and trams, standing at a bar, slipping on a step, any one or a combination of those could lead to one or more of those bruises. He expressed the opinion that the deceased's death was consistent with unconsciousness before drowning. The possibilities that he said were open included the possibility that the deceased was feeling light headed as a result of the alcohol she had consumed, and that the alcohol in conjunction with being in a warm bath caused postural hypotension. In the absence of a history of epilepsy, epilepsy was not something that he would say was a likelihood here. He said obviously at some time, somewhere, someone is going to have their first epileptic fit in a bath, but he said you wouldn't, I suppose, want to put too much on that. He said the effects of postural hypotension could be increased by alcohol. He agreed that it was a most unusual experience to find a fit, healthy twenty-nine year old drowning in a bath. He agreed with Dr Manock that the marks on the left shin could have been caused by the grip marks of a hand. He agreed that the seven bruises on the right leg could be caused by scraping the front of the right lower leg against the shoulder or edge of the bath. He said that there would have to be something else apart from simple loss of consciousness due to postural hypotension - either the rapid inflow of water or trauma to the head. He agreed that a person can rapidly lose unconsciousness with a sudden inflow of water into the airways. He said that the two bruises on the back of the neck could be caused by the neck striking the rim in the bath at the plug end. They could also be caused by an actual slip or fall, and by the same application of force.

Matheson J then dealt with other circumstantial evidence, including evidence that Mr Keogh had taken out substantial life insurance policies on the life of Ms Cheney not long before her death. It is not necessary to go into the details of this evidence.  Matheson J then dealt with the question of whether the verdict was unsafe and unsatisfactory:

It was not disputed by the pathologists, nor by one’s common experiences of life, that it would be unusual, if not extraordinary, for a fit, healthy, 29 year old used to drinking alcohol to drown in her bath after drinking several glasses of wine. The appellant clearly had the opportunity to drown her deliberately, either before he visited his mother (if he did) or after, and was the last person to see her alive. He had a motive, namely to obtain his freedom and the means to enjoy it. The evidence of GM and PM pointed to the modus operandi demonstrated by Dr Manock. The opinions of Drs Manock and James supported such a modus operandi, and neither Dr Ansford nor Professor Cordner rejected it.  Epilepsy and myocarditis appear unlikely. A faint, whether or not due to postural hypotension, would be unlikely to cause the number and situation of bruises on the deceased. Falling to sleep would probably have led to her coughing and awakening. The appellant has clearly told some lies. The jury saw him cross-examined in the witness box. Their verdict indicates they did not believe him, and I am not surprised. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that he deliberately drowned his fiancée. I think their verdict was correct. I would dismiss the appeal.

The reasons of Matheson J indicate that the evidence of the pathologists was important evidence. Dr Manock’s opinion that the cause of death was drowning, and his hypothesis as to the method of death, based in part on the presence of bruises on the lower left leg, was significant evidence. However, it is important to bear in mind that this was a circumstantial case. Other evidence, particularly evidence of opportunity and motive, was also important. So was the evidence tending to exclude accidental drowning.

The first application to re-open the appeal

The first application to re-open the appeal, made in 1997, was dismissed by the Full Court as incompetent. The Court took the view that it was required to do so by the decision of the High Court in Grierson v The King (1938) 60 CLR 431. It followed the earlier decision of the Court in R v Edwards (No 2) [1931] SASR 376, and other decisions to a like effect.  The conclusion that the application was incompetent is challenged by the submissions advanced by Mr Game before this Court, and I will return to that in due course.

The reasons of the Court indicate that if the Court had considered the application to be competent, the argument to be advanced centred on the evidence of Dr Manock at the trial as to the cause of death and how drowning might have been caused. Counsel for Mr Keogh wished to put before the Court findings made by the Coroner in a decision delivered shortly after the verdict in the trial. In these findings, which related to the deaths of a number of infants, the Coroner had apparently been critical of Dr Manock’s work. The argument to be advanced was, I gather, that having regard to the Coroner’s findings there was reason to doubt the competence of Dr Manock, and to doubt the evidence he had given at the trial. One aspect of the argument was that the Director of Public Prosecutions should have disclosed to Mr Keogh’s advisers, before the trial, the fact that in the course of the inquest counsel assisting the Coroner, who was instructed by the Crown Solicitor, was presenting a case to the effect that Dr Manock’s work as a forensic pathologist, and in particular in the autopsies in question, fell short of the standards expected of an expert forensic pathologist.

That short summary is taken from the reasons of the Court. For present purposes it suffices to note that the application to re-open was for the purpose of enabling an attack to be mounted on Dr Manock’s competence and on the reliability of his opinion as to cause of death and the method of drowning.

The argument if the appeal is re-opened

I turn now to the evidence and arguments upon which Mr Game wishes to rely if the appeal is re-opened. I repeat that the evidence has not yet been tendered or admitted. Some of the evidence is evidence from the trial, and as to that a transcript is available. Other evidence is from other sources, and as to that the Court has an outline or summary of the proposed evidence only.

Having expressed the opinion at trial that the cause of death was freshwater drowning, Dr Manock advanced an hypothesis as to the method of death. It was based on the presence of four bruises on the lower left leg, one of them on the inner or medial side of the left calf. He suggested that the bruising was consistent with the leg having been gripped by the right hand of Mr Keogh, the thumb of the right hand having been placed at the site of a single bruise on the inner or medial side of the left calf. In the second extract from Dr Manock’s evidence quoted by Matheson J, Dr Manock explains how, gripping the leg that way and lifting the leg, Mr Keogh could have drowned Ms Cheney.

At the trial Dr Manock gave evidence that suggests that he took tissue from the bruise on the medial side of the left leg (the place where he suggested the thumb had been put) and that microscopic examination had shown blood trapped in the tissue, confirming that the mark on the leg was a bruise.

Mr Game wishes to tender evidence given by Dr Manock before the Medical Board in 2004 to the effect that microscopic examination did not support the fact that the relevant mark was a bruise. He wishes to lead evidence that Dr Manock admitted that he did not disclose this fact to the prosecutor, nor to defence counsel. The argument to be advanced is that the presence of the “bruise” in question is central to the hypothesis advanced by Dr Manock as to the method of death, and that in light of the evidence before the Board the hypothesis could not be sustained, or at least is open to serious doubt. A successful attack on the hypothesis would also weaken the evidence (also under attack) that the cause of death was drowning.

In addition, Mr Game argues that this is significant available expert evidence that was not disclosed to the defence, and that in the circumstances there was a breach of the obligation of the prosecution to disclose material evidence to the defence.

As the reasons of Matheson J indicate, Dr James had reviewed the work of Dr Manock. His evidence was supportive of that of Dr Manock. His evidence also suggested that he examined slides microscopically, and that that the examination confirmed the presence of the bruise on the inner aspect of the left leg.

Dr James also gave evidence before the Medical Board in 2004. Mr Game wishes to argue that the evidence is to the effect that Dr James’ microscopic examination of the relevant tissue section did not confirm that the mark in question was a bruise. Dr James told the Medical Board that he did not disclose this before the jury because he did not think it was “particularly relevant”.

Once again, Mr Game wishes to argue that the evidence before the jury misled the jury, or had the potential to mislead the jury, on a significant matter. Again, he wishes to argue that important expert evidence was withheld from the defence. This is all the more significant because Dr James had agreed to assist defence counsel in his preparation of the defence. In light of that he argues, defence counsel was at a double disadvantage because the expert who agreed to assist him, and the main expert relied upon by the prosecution, failed to disclose significant material (it is argued) to defence counsel, producing a situation in which defence counsel could not possibly have identified the possible flaw in the prosecution case.

Mr Game relies on the evidence given by Dr Manock before the Medical Board to support an argument that Dr Manock’s evidence that the bruises on the lower left leg were all caused at about the same time, and about the time of death, was unreliable.

Mr Game also wishes to rely on evidence given by Dr James before the Medical Board to show that evidence Dr James gave before the jury to the effect that the bruises were made at about the same time, and at about the time of death was incorrect. As Dr Manock acknowledged that the microscopic examination did not support the opinion that the mark on the inner aspect of the left leg was a bruise, Mr Game argues that his evidence that all bruises occurred at the same time was fundamentally flawed.

Mr Game wishes to adduce evidence attacking Dr Manock’s opinion to the jury that the cause of death was freshwater drowning.  The opinion was based substantially on an observation that the aorta showed haemolytic staining, but the pulmonary artery did not. He described this as “differential staining”, and said that it was a classical sign of freshwater drowning. Mr Game wishes to show that there is no expert evidence to support that opinion of Dr Manock, and that the opinion was that of Dr Manock alone. He claims that in evidence to the Medical Board Dr Manock acknowledged that there is no support for this opinion in recognised forensic pathology textbooks. Clearly enough, proof that drowning was the cause of death was central to the prosecution case.

Mr Game wishes to advance a similar attack on evidence to the like effect from Dr James.

Again, Mr Game argues that because Dr James agreed to assist defence counsel in the preparation of his defence, defence counsel was effectively denied a possible avenue for cross-examination because Dr James failed to alert defence counsel to the fact that the opinion about differential staining was not, contrary to the implication in the evidence by Dr Manock and Dr James, an accepted view within the field of forensic pathology. Mr Game argues that this was a significant failure on the part of the prosecution to disclose material evidence to the defence.

At the trial Dr Manock’s hypothesis was apparently that the left leg of Ms Cheney was gripped by the right hand of Mr Keogh. Dr Manock demonstrated to the jury how the drowning might have been effected, and in doing so he used a right-hand grip. In evidence to the Medical Board Dr Manock apparently said that the grip was that of a left hand, and also that each hand might have been used at different times. This later evidence is said to undermine his evidence at trial.

For the purposes of his hypothesis, Dr Manock assumed that the bath in which Ms Cheney was said to have drowned was half or three-quarters full. In his evidence to the Medical Board Dr Manock is said to have acknowledged that this was an assumption, but more importantly that his hypothesis would not be sustainable if the bath was only one-third full. The jury were not told, it is said, that it was essential for Dr Manock’s hypothesis that the bath be at least half full, and so the jury were misled or not informed on a vital matter. It is said that the prosecution should have disclosed to the defence that the assumption as to the depth of the water was vital. I gather, however, that there was evidence from witnesses to the effect that the bath was half full or as much as three-quarters full.

Finally, Mr Game wishes to adduce evidence that Dr Manock conducted the autopsy incompetently. A number of particulars are given which are said to indicate incompetent conduct. To support the argument Mr Game proposes to tender evidence given to the Medical Board by Professor Ansford and by Professor Cordner (each of whom gave evidence at the trial) and by two other experts. He proposes to tender (if permitted) evidence of opinions said to have been expressed by members of the Medical Board in memoranda that they circulated among themselves, after hearing evidence from Dr Manock and Dr James. Mr Game also proposes to tender the findings by the Coroner in the inquest into certain other deaths in which criticisms are made of Dr Manock’s work and methods. I referred to this inquest earlier in these reasons.

From this summary it is apparent that the argument to be advanced attacks the competence of the autopsy by Dr Manock, the opinion of Dr Manock and Dr James as to the cause of Ms Cheney’s death, and Dr Manock’s opinion or hypothesis as to the manner in which Ms Cheney was drowned. The attack is based on concessions said to have been made by Dr Manock in evidence to the Medical Board in 2004, on concessions said to have been made by Dr James in evidence to the Medical Board, and to some extent on the opinion of other pathologists. The material to be tendered is said to raise a doubt about the reliability of Dr Manock’s opinions. It will further be argued that material matters were not disclosed by Dr Manock to the defence, and that in the discharge of his duty as an expert he should have ensured that they were disclosed, or at least should have brought them to the attention of the prosecutor. It will be further argued that the defence was further hampered by its reliance on Dr James, who provided advice to the defence, and who is said to have failed to disclose material matters as well. Mr Game’s submission will be that if necessary it can be shown that the non-disclosure was deliberate, but that in any event the fact of non-disclosure by Dr Manock and Dr James is sufficient to establish a miscarriage of justice, because of the duty of an expert to make full disclosure to the defence. He will also submit that because of the non-disclosure the Court, when hearing the appeal, was unable to exercise its function fully, and should now do so.

The submissions that Mr Game wishes to advance deal with the issue that was central to the fourth ground of appeal that was under consideration in the first appeal. That ground involved an attack on Dr Manock’s opinion as to the cause of death and as to the manner of drowning. If the appeal is re-opened the attack will be resumed. The attack will call in aid concessions said to have been made by Dr Manock and Dr James in 2004; opinions expressed by other experts after the trial on the conduct of the autopsy, and on the significance of the concessions by Dr Manock and Dr James, and will call in aid criticisms by the Coroner of Dr Manock’s conduct of other autopsies.

These are the arguments that Mr Game wishes to advance. I now relate these arguments to the power of the Court to allow an appeal against conviction.

Mr Game will submit, invoking s 353 of the CLCA, that there has been a miscarriage of justice. That is a ground on which the Court can allow an appeal against conviction.

He will argue that the miscarriage has occurred because the jury may have reached its verdict on the basis of evidence from Dr Manock and Dr James as to the cause of death and as to the method of drowning. He will argue that the further material to be put before the Court will demonstrate that that evidence is unreliable. Mr Game wishes to submit in due course that the conviction was obtained by relying on false and misleading evidence, and so is akin to a conviction obtained by fraud. But, as it seems to me, if there has been a miscarriage of justice there is no need to enter into that further issue, save to the extent that he relies on fraud as a separate ground for re-opening the appeal.

The evidence to be put before the Court, which is of matters occurring after the trial and after the dismissed appeal (treating the publication of the Coroner’s findings as a relevant matter), is argued to be admissible without reference to the rules governing the admissibility of fresh evidence, because this is said to be a case in which the prosecutor failed to disclose to the defence matters that it was the prosecutor’s duty to disclose:  see Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 at [9], [18] and [23] Gleeson CJ, Gummow and Callinan JJ. In the alternative Mr Game will submit that Dr Manock and Dr James as experts were, in the circumstances, under a duty to disclose material matters to the defence which they failed to disclose.  In the final alternative he will argue that the material relied upon is admissible as fresh evidence.

That is the basis upon which Mr Game submits the relevant material can be put before the Court, and relying on that material he will then argue that there has been a miscarriage of justice.

He will argue that the miscarriage was “latent” (as he puts it) until after the appeal against conviction was heard, because Mr Keogh and his advisers were unaware of the matters now relied on.

I emphasise that the Court is not considering whether the evidence to be tendered will be admitted, nor is the Court considering whether that evidence, if admitted, will establish a miscarriage of justice.

The issue presented to the Court, and now under consideration, is whether the CLCA vests in the Court the jurisdiction or power to re-open the dismissed appeal for the purpose of considering these submissions, and then either allowing the appeal and setting aside the conviction (if the submissions are sound) or dismissing the appeal (if the submissions are not sound).

The jurisdiction of the Court

The Court’s jurisdiction to hear an appeal against conviction is conferred by s 352 of the CLCA.  In form this provision creates a right of appeal for a convicted person, but by doing so it necessarily confers jurisdiction on the Court to hear the appeal.  The grounds on which the Court may allow or dismiss an appeal are set out in s 353(1) which provides as follows:

353 Determination of appeals in ordinary cases

(1) The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

This section is the common form of criminal appeal provision copied by the  Australian States (with some minor variations) from the Criminal Appeal Act 1907 (UK):  see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [12], [21].

The CLCA by s 359 confers on the Court certain “supplemental powers” when hearing an appeal. These powers also are in the common form. They enable the Court to require the production of documents and other things; to order the attendance of witnesses and to receive evidence; to refer a matter for enquiry and report to a special commissioner of the matter cannot “conveniently be conducted before the Court”; to appoint an expert as “assessor to the Full Court”, to “exercise in relation to the proceedings of the Court” powers exercisable by the Court in civil matters, and to issue warrants. As the High Court said in Weiss, these provisions indicate that the Court is to “make its own enquiry” about whether the accused was in fact guilty, and that its functions are wider than those of a “court of error”:  Weiss at [23].

When the Court exercises its power to receive and act on evidence not before the trial court, it exercises an original and not strictly appellate jurisdiction:  Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at [14] Gleeson CJ, [69] Gaudron J and [105] McHugh J.

The application now before the Court is made with a view to the Court exercising that original jurisdiction in conjunction with its powers as an appellate court.  The question of whether the court can re-open the dismissed appeal is ultimately one of statutory construction.  The answer must be found in the provisions of the CLCA.  Those provisions are to be considered bearing in mind that the Supreme Court’s jurisdiction is conferred by reference to the jurisdiction exercised by the Westminster Courts:  see s 17(2) of the Supreme Court Act 1935 (SA).  But at the same time one must remember that the Supreme Court exercises original and appellate jurisdiction, and the statutory provisions are the source of its powers:  cf DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [32]-[47] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

But if the meaning of the relevant provisions has been authoritatively determined by the High Court, the duty of this Court is to apply that interpretation.  Accordingly, I turn first to the relevant High Court decisions.

In Grierson v The King Mr Grierson had been convicted of certain criminal offences.  He appealed against conviction to the Supreme Court as a Court of Criminal Appeal, but the appeal was dismissed. The High Court refused special leave to appeal against the conviction. About four years later Mr Grierson applied to the Supreme Court to re-open his appeal, or for leave to bring a fresh appeal. The report of the case indicates that he wished to argue that material facts had become known respecting the evidence of a material witness for the Crown. I assume that he wished to tender fresh evidence impugning the reliability of the evidence of a material witness.

The Supreme Court declined to entertain the application, holding that it had no power to do so. It followed the decision of this Court in Edwards. Jordan CJ is reported in the Commonwealth Law Reports as saying:

When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisers or whenever a new fact is alleged to have come to light.

The other members of the Court agreed with that statement: at 432.

The legislation under consideration was the Criminal Appeal Act 1912 (NSW), the provisions of which are in substance the same as the appeal provisions of the CLCA.  It has not been suggested that there is any material difference.

The High Court refused special leave to appeal. Rich J said at 434:

… In making the remedies provided by sec 475 of the Crimes Act 1900 and sec. 26 of the Criminal Appeal Act of 1912 available to a prisoner after conviction the legislature has, I think, recognized that the jurisdiction of the Court of Criminal Appeal is confined within the limits of the Act and that when the court has heard an appeal on its merits and given its decision the appeal cannot be reopened.

The remedies to which he refers are the power of the Executive Government or a Judge to order an enquiry in the event of a “doubt or question arising” as to a prisoner’s guilt, and the power of a Minister to refer a petition to the Governor to the Court to be heard and determined as in the case of an appeal, or for determination of a point on which the Court’s opinion is sought. The former power is not conferred by the CLCA, but s 369 of the CLCA is in substantially the same terms as the latter power. As I understand the reasons of Rich J, he treated these powers as recognising the limit on the power of the Court, and not as the source of that limit.

Dixon J said at 435 that the Supreme Court had been correct to conclude:

… that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal and that the first appeal could not be reopened after a final determination.

After referring to the statutory provisions he said at 436:

The determination of an appeal is evidently definitive, and a conviction unappealed is equally final.

Starke J agreed with the reasons of Jordan CJ:  at 435.  McTiernan J agreed with the reasons of Rich J and Dixon J:  at 437.

The decision in Grierson appears to deny the existence of jurisdiction on the part of this Court to entertain the application now made to it. Mr Keogh has appealed, was fully heard on that appeal and the appeal was decided. However, it is necessary to consider whether later authority in the High Court qualifies the decision in Grierson, or whether the decision is to be understood as subject to an exception that covers the present case.

Mr Game submits that Rich J and Dixon J each refer to an appeal that has been heard on its merits, and that this is a point of distinction from the present case.  I will return to this point.  I record here that I do not accept the distinction.  It is a reference, I consider, to the distinction between an appeal that has been heard and an appeal that has been abandoned, a distinction drawn by counsel in submissions to the High Court:  at 433.  In any event, Mr Keogh’s appeal was heard on the merits, even though new material, possibly casting doubt on the conviction, has later come to light.

Mr Game submits that the decision in Grierson does not bind this Court because the High Court was considering and refused an application for special leave to appeal. He cited no authority to support the submission that this Court may depart from the considered views of the High Court when dealing with an application for special leave to appeal. [The decision in R v Milat makes it clear that an application for leave to appeal does not "engage the jurisdiction of the court".] The decision in Grierson has been treated as authoritative in decisions by the High Court and by State Courts. I do not accept this submission.

Mr Game submits that the reasons in Grierson are not applicable because the Court was dealing with New South Wales legislation.  But the legislation is in substantially the same form as the relevant provisions of the CLCA.

Mr Game submits that Edwards is wrongly decided.  But if the reasoning in Edwards has been approved by the High Court, as it was in Grierson, then it is not for this Court to undermine the decision of the High Court by an attack on Edwards.

Mr Game also draws a distinction between re-opening an appeal, and a second appeal. I do not accept the validity of this distinction for present purposes.

Accordingly, unless subsequent High Court authority qualifies the decision in Grierson (there is no suggestion that it has been overruled), or unless other persuasive authority leads to the conclusion that there is a relevant exception to or limit on the reach of the proposition stated in Grierson, this Court is bound by that decision and must dismiss the application made to it.

In Jones v The Queen (1989) 166 CLR 409 the Court of Criminal Appeal of Tasmania allowed an appeal against conviction, quashed the conviction and ordered a new trial. Mr Jones applied to the High Court for special leave to appeal against the order for a re-trial. He complained that the Court had not determined grounds of appeal argued before it that would have entitled him to an acquittal, if the points were made good. The High Court held that the Court of Criminal Appeal had not fully exercised its jurisdiction over the appeal, because there were grounds of appeal argued but not determined; allowed the appeal; set aside the order for a re-trial, and remitted the matter to the Tasmanian Court for further hearing.

At 414-415 Mason CJ, Brennan, Dawson and Toohey JJ said:

The order of the Court of Criminal Appeal has been perfected. Counsel for both parties in this Court approached the application for special leave on the footing that it is now too late for the applicant to move the Court of Criminal Appeal to hear and determine the grounds left undetermined. If that be right – and in this case we should assume but not decide that it is – it is regrettable that when the omissions from the reasons for judgment in the Court of Criminal Appeal became known and before the formal order of the Court was perfected such an application was not made to the Court.

These remarks do not qualify the decision in Grierson.  There is no reference to Grierson in the report of the case. The remarks might contemplate a qualification of Grierson to the effect that even after an order is perfected, an intermediate court of appeal can re-open its decision to determine a ground of appeal argued but not decided. But the Court did not decide the point, and it would be for the High Court to decide if there was such a qualification to Grierson, not for this Court.

In Pantorno v The Queen (1989) 166 CLR 466 Mr Pantorno pleaded guilty to a charge of possession of a drug. Sentencing submissions proceeded (on both sides) on the basis that the possession was not for a purpose related to trafficking in drugs. The Judge sentenced Mr Pantorno on the basis that his possession was for the purpose of trafficking. On appeal, it was held that the Judge had been correct, but only as a result of the Full Court of the Supreme Court of Victoria reversing an earlier decision of that Court.

Before the Full Court the point was not taken that the change in the law that resulted from the overruling of the earlier decision was irrelevant, because sentencing submissions had proceeded on a factual basis favourable to Mr Pantorno, from which the sentencing judge departed without giving Mr Pantorno an opportunity to address the basis for the departure. This meant that Mr Pantorno had been denied procedural fairness. This point was, however, raised on an application to the High Court for special leave to appeal against the dismissal of the appeal against sentence. Thus, on the application to the High Court Mr Pantorno faced the difficulty that he was relying upon an argument not put to the Court below. Nevertheless, in the unusual circumstances the High Court granted special leave to appeal and allowed the appeal against sentence because of the procedural unfairness.

It is apparent that in the course of argument in the High Court the question arose of whether, after the Full Court of the Supreme Court of Victoria gave its decision, counsel could and should have raised with the Court the fact that the overruling of the earlier decision, and the change in law, did not alter the fact that Mr Pantorno had been treated unfairly. The Court’s consideration of that point led to it making some observations about the power of an intermediate court of criminal appeal to re-open the hearing of an appeal.

Mason CJ and Brennan J said at 474:

Failure to argue a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court's attention to issues which, in the light of the judgment, require further consideration by that court and to move the court to consider any such issues before the formal order of the court is perfected. On occasions, a court of criminal appeal may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal. In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave. However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave in this case. In this case, as a denial of natural justice appears from the concession made in this Court, as the point was covered by the grounds of appeal in the Court of Criminal Appeal and as argument in this Court proceeded upon the tacit assumption that the formal order of the Court of Criminal Appeal had been perfected so that there are now no means of remedying the position save an appeal to this Court, special leave should be granted.

In this passage their Honours proceed on the basis that if the order below had been perfected, there might be no means of remedying the position save through intervention by the High Court. Equally clearly their Honours proceed on the basis that if the order disposing of an appeal has not been perfected, an intermediate court of appeal can resume the hearing of an appeal. That is as far as these remarks go. Dealing with the same issues, Deane, Toohey and Gaudron JJ said at 484:

There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that Court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court. In view of the shortness of the minimum sentence to be served by the applicant, however, it would be inappropriate for this Court now to relist the matter for further argument so that the validity of the assumption (about which we express no view) that the Court of Criminal Appeal now lacks jurisdiction could be examined.

These observations appear to me to go no further than those of the other two members of the Court.

Postiglione v The Queen (1997) 189 CLR 295 is a decision concerned with sentencing principles, and in particular with the question of parity of sentencing. In brief, Mr Postiglione had appealed against his sentence, and the appeal was dismissed by the Court of Criminal Appeal of New South Wales. It was not clear if that order had been perfected: see Dawson and Gaudron JJ at 299. Later, a person against whom Mr Postiglione gave evidence was convicted and sentenced. Mr Postiglione then, for the second time, sought leave to appeal against sentence, relying now on a disparity between his sentence and that of the other offender. The Court of Criminal Appeal granted leave to appeal, but dismissed the appeal against sentence. It was not clear if that order had been perfected.

A further complicating procedural factor was that the Notification of the decision on the first appeal referred to the dismissal of an appeal against conviction rather than the dismissal of an appeal against sentence.

What is clear is that despite having dismissed the first appeal against sentence (the order incorrectly identified in the Notification), the Court of Criminal Appeal entertained but dismissed a further appeal against sentence.

Dawson and Gaudron JJ referred to the power of the court to entertain the second appeal. They said at 300:

If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to re-open an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected. Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected. (footnotes omitted)

Their reference in the omitted footnotes to the view expressed in Pantorno is a reference to the passages set out above.

Clearly enough their Honours proceed on the basis that if an appeal has been heard and the order has been perfected, there is no jurisdiction to entertain a second appeal. They refer to a “view” to the effect that even if an order has been perfected, an intermediate court of appeal can remedy a denial of procedural fairness by that court. To my mind their Honours appear to have refrained from expressing an opinion on the correctness of that view. However, if I am wrong in that, the most that can be said is that they accept that an appeal can be re-opened despite a perfected order of dismissal in the event that there has been a denial of procedural fairness by the intermediate court of appeal, meaning that the appeal has not been heard and determined on the merits.

McHugh J at 315 said:

If the first order was perfected, the appeal against sentence had already been conclusively determined on its merits by the first appeal. In that event, the Criminal Appeal Act 1912 (NSW) does not permit the Court of Criminal Appeal to conduct a further appeal. (footnote omitted)

In an omitted footnote his Honour refers to the decision in Grierson to support the view that he expresses. It is worth noting that Mr Postiglione was relying, before the High Court, on a matter that he could not have raised when his first appeal against sentence was heard, because it arose only as a result of the sentence imposed on the other person.

Gummow J evidently considered that if the order on the first appeal was perfected, the second appeal was incompetent. He said at 327:

The result on that remitter, consistently with my conclusions, would be as follows. If it transpired that the orders on the first appeal to the Court of Criminal Appeal were perfected so that the second proceeding was incompetent, the result first reached there would stand. Nevertheless, that outcome would accord with that which would be reached on the merits. If the orders on the first appeal were not perfected, the Court of Criminal Appeal should proceed to achieve the effective dismissal of the appeal to that Court against sentence.

I add my agreement to what is said by Dawson and Gaudron JJ with respect to the reliance upon Pantorno v The Queen. (footnote omitted)

Kirby J said at 343 that he was not convinced that the Court of Criminal Appeal lacked jurisdiction to hear and determine the second application to it.

That is the extent of High Court authority on the point.

The decision in Grierson has not been overruled. It binds this Court.

I accept that the decision in Grierson was not intended to deny the power of this Court to correct an order which, through error or mistake, incorrectly records the order that the court made.  There is no reason to think that the cases dealing with the powers of a court under the so-called “slip rule” are not applicable to a decision by an intermediate court of appeal. But that exception to the principle expressed in Grierson does not arise here.

Observations by all members of the Court in Pantorno might mean that a court of appeal exercising powers under the common form provisions is able to entertain a further appeal, or re-open the hearing of an appeal, despite its order being perfected, if that court has inadvertently denied procedural fairness to a party by, for example, failing to deal with an argument raised on appeal, with the result that the appeal has not been heard and determined on the merits.  But that is not the present case.  The Court that dismissed Mr Keogh’s first appeal heard and determined the issues argued, including the attack on Dr Manock’s evidence.  The application now made to this Court cannot be said to raise or identify a failure by the Court that dismissed the first appeal to accord procedural fairness to Mr Keogh, or a failure to deal with all matters argued before it. The non-disclosure complained of, whether deliberate or not, does not alter this

[There are a number of cases where it has been acccepted that such deliberate non-disclosure amounts to precisely that form of a failure of due process]

In any event, I am not satisfied that it is for this Court to hold that the observations in Pantorno qualify the principle in Grierson.  The qualification based on the remarks in Pantorno is a significant one, and it is not clear to me that the remarks of Dawson and Gaurdon JJ in Postiglione are to be treated as recognising that Pantorno qualifies Grierson.  But it is not necessary for me to decide this.

Accordingly, in my opinion existing High Court authority determines that this Court lacks jurisdiction to entertain the application now made to it, and that it lacks jurisdiction to re-open the hearing of the dismissed appeal. That is on the assumption that the order dismissing the appeal has been perfected. It was not argued otherwise. I will return to that point in due course.

The Court is now asked to re-open the hearing of the dismissed appeal for the purpose of dealing with an argument which, on one approach, has already been heard and determined, but is now to be put again supported by additional material not previously available. On another view the purpose of the application is to have the Court entertain an argument on a matter of fact which was not put before, but it cannot be said that the Court that dismissed the appeal failed to address the argument, or denied Mr Keogh any procedural fairness in connection with it. It was never raised. There is no relevant distinction between the circumstances of this case and those of Grierson and Postiglione. For each case the purpose of the relevant application was to advance an argument that was not put to the court that had dismissed an earlier appeal, through no fault of the applicant.

The power of a court of criminal appeal to re-open the hearing of a dismissed appeal has been considered by Full Courts and Courts of Criminal Appeal in other States. Because I consider that this Court’s decision is determined by High Court authority, it is necessary to do no more than refer briefly to some of these decisions.

In R v Reardon [2004] NSWCCA 197; (2004) 146 A Crim R 475 Hodgson JA, with whom the other members of the Court agreed, considered the position at some length. He referred to the same High Court decisions, and to a number of decisions of State courts on point. He concluded at [41]:

[41] In my opinion, what was said in Jones, Pantorno and Postiglioni is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to reopen the appeal. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud. However, it is to be noted that this principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined. That is a possibility adverted to by Sperling J in Saxon; but in my opinion, it is not any denial of procedural fairness which would have the result that it could be said that an appeal has not been heard and determined. In my opinion, it is only if there is some ground of appeal which was argued but not determined by the court that one might be able to say that a purported determination does not, in relation to that ground of appeal, amount to a determination of the appeal. Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson. To that extent, I prefer the view expressed in Lapa to the contrary view expressed in Saxon and Gust.

I respectfully agree with the view that he expresses, with one possible exception to which I will return.

In AN (No 2) v The Queen [2006] NSWCCA 218; (2006) 163 A Crim R 133 the Court of Criminal Appeal referred with apparent approval to the decision in Reardon in support of a power to correct a slip or accidental omission, even if an order has been perfected:  at [41]-[42].

The most recent decision in New South Wales of which I am aware is R v Burrell [2007] NSWCCA 79. In that case McClellan CJ at CL also reviewed the cases, and concluded at 22:

The consequence is that an application which is in effect a second appeal must be rejected.  But where there has been a denial of procedural fairness, whether or not the Court’s order has been perfected, there has been no hearing on the merits and the matter has not been finally determined.  For this reason, mindful of the fact that it will only be appropriate to do so in exceptional cases, a court may reopen the appeal.

He treats as established the exception based on a denial of procedural fairness, which I regard as a matter for determination by the High Court. But subject to that, there is nothing in his conclusion to assist Mr Keogh. Later at [39] he applied this principle to allow the Court to re-open the hearing of an appeal when the Court had proceeded on the mistaken basis as to the facts. That might well take the suggested exception a step further, but there is no need to decide whether it does or not. That basis for a re-opening does not assist Mr Keogh. The Court that dismissed Mr Keogh’s appeal did not misunderstand the arguments put to it.

The Court of Appeal of the Supreme Court of Victoria has reached the same conclusions as I have reached, as I understand its decisions. In R v McNamara (No 2) [1997] 1 VR 257 the Court reviewed the existing case law, and at 268 concluded that absent fraud or some fundamental procedural mistake, once an order dismissing an appeal had been perfected, the Court had no power or jurisdiction to entertain a further appeal, or to re-open the hearing of the appeal. At 264 the judgment of the Court makes it clear that it did not accept that an appeal had not been argued on its merits merely because there were further matters that could or should have been argued, but were not argued.

[One notices here the "absent fraud" exception].

In R v GAM (No 2) [2004] VSCA 117; (2004) 9 VR 640 the applicant sought an extension of time within which to file an application for leave to appeal against convictions: at [6]. The argument proceeded on the basis that a decision dismissing an earlier appeal against conviction had been perfected: at [4]. This was a case in which the complainant was said to have given false evidence, on the basis of which false evidence GAM had been convicted.  In that respect GAM is not materially different from Mr Keogh’s allegation that Dr Manock and Dr James gave evidence that they knew was false. After the trial and the first appeal the complainant retracted her allegations against GAM.  There is no reason to doubt that her evidence was critical to the obtaining of the conviction.

The Court of Appeal of the Supreme Court of Victoria took the view that there had been no relevant fraud or fundamental procedural mistake:  at [12], [42] and [48].  Winneke P said that when the Court in McNamara referred to fraud as giving rise to a possible exception to the principle of finality, it was referring only to fraud or a fundamental procedural mistake enabling the abandonment of an appeal to be withdrawn and the appeal to be re-opened: at [12]. If the Court in McNamara went further than that, it “may have overstated the principle”: at [21].

I respectfully share the doubt held by Winneke P, and to that extent do not necessarily agree with the opinion of Hodgson JA in Reardon.  If fraud is a basis for setting aside a perfected order, it must be something more than is alleged here by Mr Game – a deliberate withholding of evidence.

[It is hard to understand what "more" might be required that "the deliberate witholding of evidence". Actually, in the Keogh case, it was not only alleged that certain evidence had been withheld (the result of the examination of the tissue slide for the medial bruise) but that there was also the giving of false evidence. That the mark represented a bruise - that aortic staining was a "classic sign" of drowning etc.]

In R v Brain [1999] SASC 358; (1999) 74 SASR 92 I reviewed the cases at some length. I concluded that once an order dismissing an appeal against conviction or an appeal against sentence has been perfected, there is no jurisdiction to re-open hearing of the appeal, or to entertain a further appeal: at [45]-[55]. I acknowledged that there were two limited exceptions to that principle.  First, a notice abandoning an appeal could, with leave of the Court, be withdrawn in limited circumstances, because although such a notice operates as a final dismissal of an appeal, if an appeal is disposed of in that way the appeal has not been heard on its merits: at [59]. There is a substantial body of authority to support the conclusion that the principle of finality may not operate with the same strictness when a notice of abandonment has been filed. In my reasons in Brain I also referred to the possible exception based on the observations of the members of the High Court in Pantorno.

In Brain I concluded that the approach of this Court was determined by the decision in Grierson. I referred to decisions of this Court in this State establishing a principle of finality.  They are R v Edwards (No 2) [1931] SASR 376;  The Queen v Shannon (1982) 32 SASR 5 and R v Caruso (1988) 49 SASR 465. Since then in R v Preston [2004] SASC 77; (2004) 145 A Crim R 212 Mr Preston and Mr Gillard were convicted of murder. Their appeals against conviction were dismissed by the Full Court. They applied to the High Court for special leave to appeal. Mr Preston’s application was refused.  Mr Gillard was granted leave to appeal, and his appeal was allowed and a new trial was ordered. Mr Preston then applied to the Full Court to re-open the argument of his appeal to that Court, raising a mix of matters that arose after the trial and before the trial. In dismissing the application for an order re-opening the appeal, the Court took the same approach as I have taken above. It referred to and followed the decision in Brain.  In particular, at [19] Duggan J said:

[19] In the present case it is apparent that the applicant’s original appeal was dealt with on the merits. Numerous grounds of appeal were raised and argued by senior counsel on the applicant’s behalf. The fact that different grounds are raised subsequently does not mean that the original appeal was not argued on its merits: R v McNamara (No 2); R v Saxon.

Duggan J went on to say at [26] that it made no difference to the application of the principle in Grierson that the application to re-open the argument on the appeal was based on a claim of fresh evidence. The other members of the Court agreed with the reasons of Duggan J.

In my opinion the decisions by State Courts do not support the existence of a power to re-open a dismissed appeal in the circumstances relied on by Mr Game. But, in any event, this Court is bound by High Court authority to so decide. It is for the High Court to decide if the principle in Grierson should be relaxed.

Was the order dismissing the appeal perfected?

As I understand the submissions, Mr Game did not deny that the order dismissing the appeal against conviction has been drawn up or perfected. I am satisfied that it has.

Mr Hinton tendered an affidavit sworn by Mr Gleeson, the Criminal Appeals Coordinator. He is responsible for the recording of orders made by the Full Court when sitting as a Court of Criminal Appeal. His affidavit refers to the records of the Court.

He states that when the appeal against conviction was dismissed in December 1995 an entry was made into the computerised records of the Court that recorded the dismissal of the appeal, and that caused the printing of a Notice of Final Determination of Appeal, being a form prescribed by the Supreme Court Criminal Appeal Rules 1990 which were then in force. In accordance with ordinary practice a copy of that form would have been sent to Mr Keogh, to his counsel, to the trial Judge, to the Director of Public Prosecutions and certain Government agencies. His affidavit establishes that the dismissal of the appeal was also recorded on the information on which Mr Keogh was tried. When Mr Keogh applied to the High Court for special leave to appeal against the dismissal of the appeal, and for special leave to appeal against the decision dismissing the application for an order reopening the appeal, orders reflecting those two separate decisions were drawn up and sealed. The two orders were sealed on 3 June 1997. Although it is not the practice of the Court to draw up sealed orders recording decisions of the Full Court sitting as the Court of Criminal Appeal, those orders were drawn up and sealed for the purposes of the applications being made to the High Court.

In Brain I held, following an earlier decision of this Court in Caruso, that the decision of the Full Court sitting as a Court of Criminal Appeal had been perfected, and the appeal had been finally disposed of, once the Notification had been sent to the relevant persons, and once the outcome of the appeal was recorded on the Information. Applying that decision, the order in the present case has been perfected, and the appeal has been finally disposed of.

It appears that the procedure in this State for recording the order made by the Full Court when disposing of an appeal against conviction is much the same as that followed in Victoria and in New South Wales: see McNamara at 267-268;  GAM at [4];  Reardon at [20]-[21].

It follows that the order in this case has been perfected.

Conclusion

The dismissal of the first appeal against conviction, and the drawing up or perfection of the order of the Court doing so, deprives this Court of jurisdiction to re-open the hearing of the appeal against conviction, or to entertain a second appeal against conviction. The application made by Mr Keogh must be dismissed.

Bleby J

I agree that the application should be dismissed. I agree with the reasons of the Chief Justice.

Sulan J

I agree that the application must be dismissed. I agree with the reasons of the Chief Justice.

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