News: Four new criminal law appeals, including Van Beelen case

The Kiefel Court held its first oral special leave hearings on Friday morning. Last week, the Court ruled on several dozen written applications, dismissing them all. According to the High Court’s business list, a further seven matters were ‘TO BE HEARD IN CANBERRA AND BY VIDEO-LINK TO ADELAIDE AND TO SYDNEY’. However, on Thursday, the next day’s court list revealed, for the first time, that there would be two separate hearings at the same time, one in Canberra (hearing three applications, including two from Adelaide via video link) and the remaining four live in Sydney (rather than from Sydney via video link. [EDIT: Corrected. See comment below.]) It seems unlikely that anyone was put out by this late change of plans, but it is also unclear why it was not announced earlier.

The High Court granted leave in four matters, all of which relate to crimes or the criminal law. The four decisions appealed are:

  • DC v State of New South Wales [2016] NSWCA 198, which concerns an action for damages by two victims of familial child sexual abuse, who argue that the NSW Department of Child and Community Services (as it was in 1983) breached its duty of care by failing to pass on notification of the abuse to the police (rather than bringing protection proceedings before the Children’s Court.) A majority of the NSW Court of Appeal held that the Department had (and breached) a duty to notify the police and also overturned the trial judge’s finding that there was no abuse after the Department was notified. The Court also unanimously accepted that the victims’ damages should be reduced by 70% to exclude abuse that occurred before the Department was notified.
  • Holliday v The Queen [2016] ACTCA 42, which involves a prisoner awaiting prosecution who asked a fellow prisoner to arrange for someone outside the prison to kidnap prospective witnesses and force them to make exonerating statements. This ‘stupid plan’ (to quote the prosecutor) failed after the fellow prisoner informed the authorities. The ACT Court of Appeal unanimously upheld the prisoner’s conviction for attempting to pervert the course of justice, but quashed his conviction for inciting kidnapping. Chief Justice Murrell held that no-one can be charged with inciting someone to procure a third person to commit a crime, while Wigney J held that such a charge is permitted, but can only succeed if the crime is actually committed.
  • R v Chiro [2015] SASCFC 142, which deals with the offence of persistent sexual exploitation of a child, a modern crime designed to overcome the difficulty of proving particular incidents during a lengthy period of abuse. In this case, the jury were given a list of alleged abusive acts by a high school teacher that ranged from kissing  to oral sex  and were asked to convict the accused if the whole jury was unanimous that at least two of these acts occurred over a two year period. After his conviction, the Full Court of the South Australian Supreme Court rejected the defendant’s argument that either the jury should have been asked which incidents they found proved or the judge should have only sentenced him for the two least serious of the acts alleged.
  • R v Van Beelen [2016] SASCFC 71, which addresses the threshold for reopening a conviction on the basis of fresh evidence. The accused was convicted of the 1971 murder of a girl on an isolated beach, based largely on forensic evidence that her stomach contents showed that she was dead by 4.30pm (a period when the accused was the only person known to be on the beach whose actions were unaccounted for) and the similarity between fibres on the accused’s clothes and the victim’s sweater. A majority of the Full Court of the Supreme Court of South Australia held that new expert evidence based on more recent research about stomach contents that showed that the earlier forensic evidence was wrong, while fresh, was not compelling, as it was consistent with the position put by the defence’s own expert at the 1973 trial and did not disprove other prosecution evidence about when the victim died.

The last case is very well known as a potential miscarriage of justice, in part because the original forensic expert, Dr Colin Manock, has been criticised for his evidence in a variety of South Australian cases, including by Murphy J in 1982’s Perry v R and more recently when the Spreme Court overturned Henry Keogh’s conviction for drowning his wife fiancee. Van Beelen’s counsel (who was also counsel at his 1973 trial and Keogh’s counsel at his appeal), Kevin Borick QC, argued at Friday’s application that:

this Court should accept the bringing together of the whole case against Dr Manock so that the interests of justice can be properly brought to bear in deciding what should happen to those people who have suffered because of his incompetence and his dishonesty and his lack of scientific expertise. That, in our respectful submission, is a point for this Court

However, Kiefel CJ, in granting special leave, held that ‘any matter which is put forward with respect to the qualifications of Dr Manock or his good faith… will form no part of the grant of special leave’.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

2 thoughts on “News: Four new criminal law appeals, including Van Beelen case

  1. Hi Jeremy,

    All SLAs last Friday were heard “live” in Canberra – three in Courtroom 1 and four in Courtroom 3. We were certainly surprised by the split list revealed on Thursday in the next day’s court lists, but everyone was on notice that the hearings would take place in Canberra (notwithstanding, it seems that opposing counsel in our matter mistakenly thought that they would have a “live” audience in Sydney – in any event, they were not put out).

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