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Losing Their Grip - the case of Henry Keogh
Appendix One - Miscarriages of Justice - General Principles and Cases

Losing Their Grip - table of contents

Also by Dr Moles - A state of Injustice - Definition and Rule in Legal Theory

Principle 1

If a conviction is unsafe (for whatever reason) a finding that a miscarriage of justice has occurred cannot be avoided on the basis the conviction may be justified on some other scenario advanced by the prosecution which was not put to the jury.

Osland v The Queen [1998] High Court of Australia

Principle 2

A conviction is unsafe if it is established that the jury was misled on a relevant issue.

Yates v State of Texas USA Texas Court of Appeal
Gipp v The Queen [1998] High Court of Australia
Gorman and McKinney v R [1980] Northern Ireland Court of Appeal
Button v The Queen [2002] Western Australia Supreme Court
Sally Clark v R [2003] England and Wales Court of Appeal
Beamish v The Queen [2005] Western Australia Supreme Court
Cooley v The Queen [2005] Western Australia Supreme Court

Principle 3

A conviction is unsafe if non disclosure of relevant information has deprived an accused (and his advisers) of material relevant to the defence.

Mattan (Deceased) v R[1998] England and Wales Court of Appeal
David James v R [1998] England and Wales Court of Appeal
Gipp v The Queen [1998] High Court of Australia
Kamara v R [2000] England and Wales Court of Appeal
Kelly and Connolly v R [2002] England and Wales Court of Appeal
Button v The Queen [2002] Western Australia Supreme Court
Cooper and McMahon v R [2003] England and Wales Court of Appeal
Beamish v The Queen [2005] Western Australia Supreme Court
Cooley v The Queen [2005] Western Australia Supreme Court

Principle 4

In considering whether a verdict is unsafe the trial must be judged by current standards of what constitutes a fair trial. This includes matters such as the quality of the investigation and the standard of expertise to be applied.

Bentley v R [1998] England and Wales Court of Appeal
O’Brien, Sherwood, Hall v R [2000] England and Wales Court of Appeal
Button v The Queen [2002] Western Australia Supreme Court
Karimi v R [2005] England and Wales Court of Appeal

Principle 5

To avoid injustice, all concerned in the investigation of an alleged crime, and the preparation and presentation of the prosecution, must observe the very highest standards of integrity, conscientiousness and professional skill.

Mattan (deceased) v R[1998] England and Wales Court of Appeal

15 Jul 2005 - Fitness to Practice Panel - Professor Sir Roy Meadow

17 Feb 2006 - Professor Sir Roy Meadow v General Medical Council - UK High Court on appeal

26 October 2006 - Court of Appeal further appeal

Principle 6

The question for consideration is whether the conviction is safe and not whether the accused is guilty. For an appellate court to speculate is not appropriate.

Twitchell v R [1999] England and Wales Court of Appeal
R v Pendleton [2002] UK House of Lords
Downing v R[2002] England and Wales Court of Appeal
Charlie Smith v R[2002] England and Wales Court of Appeal
Beamish v The Queen [2005] Western Australia Supreme Court

Principle 7

A conviction is unsafe if expert evidence considered to be reliable at the time of the trial is subsequently shown to be unreliable. It remains unsafe irrespective of the force of other circumstantial evidence pointing towards the guilt of the accused. This principle applies to any evidence critical to the prosecution case that is subsequently shown to be unreliable.

Yates v State of Texas[2005] USA Texas Court of Appeal
Nicholls v R [1998] England and Wales Court of Appeal
Gilfillan v R [1998] England and Wales Court of Appeal
Druhan v R [1999] England and Wales Court of Appeal
Davis, Johnson, Rowe v R [2001] England and Wales Court of Appeal
Charlie Smith v R[2002] England and Wales Court of Appeal
Green v R[2002] Northern Ireland Court of Appeal
Maynard, Bailey and Clark v R [2003] England and Wales Court of Appeal
Pinfold, MacKenney v R [2003] England and Wales Court of Appeal
Steel v R [2003] England and Wales Court of Appeal
Wickens v R [2003] England and Wales Court of Appeal
Friend v R [2004] England and Wales Court of Appeal
Beamish v The Queen [2005] Western Australia Supreme Court

Principle 8

A conviction is unsafe if new evidence gives rise to a defence not advanced at trial.

Haddon v R [2003]England and Wales Court of Appeal
Samra v R [2004]England and Wales Court of Appeal

Principle 9

A conviction is unsafe if a decision made by trial counsel represents an error of judgment which affected both the trial and the verdict.

David James v R[1998] England and Wales Court of Appeal
Gipp v The Queen [1998] High Court of Australia
Kamara v R [2000] England and Wales Court of Appeal
Christofides v R [2001] England and Wales Court of Appeal
R v Pendleton [2002] UK House of Lords
Brannan, Murphy v R [2002] England and Wales Court of Appeal
Button v The Queen [2002] Western Australia Supreme Court
Shirley v R [2003] England and Wales Court of Appeal
Mills, Poole v R [2003] England and Wales Court of Appeal
MF v R (a juvenile) [2003] England and Wales Court of Appeal
Beamish v The Queen [2005] Western Australia Supreme Court
Farnell v R [2005] England and Wales Court of Appeal
Cooley v The Queen [2005] Western Australia Supreme Court

Principle 10

A conviction is unsafe if it is proven that in other cases witnesses were guilty of misconduct. The underlying principle is that evidence from other cases which demonstrate the unreliability of a witness is admissible in a seemingly unrelated trial.

Nicholls v R [1998] England and Wales Court of Appeal
Twitchell v R [1999] England and Wales Court of Appeal
Campbell v R [1999] England and Wales Court of Appeal
Cooley v The Queen [2005] Western Australia Supreme Court

Principle 11

Professional witnesses (including police officers and experts) must not permit their quest for a conviction to override their responsibilities to an accused.

Fell v R [2001]England and Wales Court of Appeal

Principle 12

A court in considering whether or not a conviction is unsafe is not precluded from considering a ground that has already been aired in a previous appellate hearing.

Mills, Poole v R[2003] England and Wales Court of Appeal

Principle 13

If there is material that ought to have been available to the defence which might have caused doubt to be cast about the evidence of a witness, then the fact that evidence was not available at the trial must lead to the conclusion that the conviction was unsafe.

Causley v R [2003]England and Wales Court of Appeal

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