The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia on the requirements for reopening a conviction on the basis of fresh evidence. Van Beelen was convicted of murdering a schoolgirl on a beach in 1971 on the basis of evidence that he was present at the beach at the time of her death, that he was the only person whose actions were unaccounted for at that time, and the fibres the jumper he was wearing matched those found on the deceased’s clothing. In 2013, the South Australian parliament inserted Section 353A(1) into the Criminal Law Consolidation Act 1935 (SA), which provides that the Court may allow a convicted person to bring a second appeal where it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. The appeal itself may only be allowed if the Court is satisfied that there was a substantial miscarriage of justice. A majority of the SASCFC rejected the appellant’s s 353A(1) application, holding that while new expert evidence based on more recent work on stomach contents analysis showed that the earlier evidence was wrong and satisfied the ‘freshness’ and reliableness requirements, it was not substantive, reliable, highly probative or compelling: it was consistent with the initial defence expert witness’s testimony, and it did not disprove the other prosecution evidence about the time of death.

The High Court (Bell, Gageler, Keane, Nettle and Edelman JJ) unanimously held that the SASCFC erred in refusing permission to appeal because the new evidence does meet the criteria of being fresh and compelling and it is in the interests of justice that it be considered on appeal. However, the Court also held that that consideration revealed no substantial miscarriage of justice, and consequently the appeal was dismissed.

After reviewing the facts of the case (at [3]ff), the new evidence (at [8]ff), the provisions of s 353A (at [16]ff) and the SASCFC’s reasoning (at [17]ff), and the parties’ submissions (at [24]ff), the Court turned to the scope of s 353A and its application here. Continue reading →