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. Noting that nothing in the extrinsic material suggested that the words ‘reliable’, ‘substantial’, or ‘highly probative’ should be given anything other than their ordinary meaning, each of these limbs must be satisfied but will commonly overlap: reliability requires the evidence be credible and provide a solid basis for fact finding; substantiality requires the evidence be of real significance or importance to the point it is tendered to prove; and being highly probative requires that it be probative in the context of the issues in dispute at trial (at [28]):

The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression “the issues in dispute at the trial” will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.

Here, the new expert evidence did not merely support the original expert testimony: instead it was the basis for disproving the view, central to the trial testimony, that there a ‘normal rate’ of gastric emptying exists, and had it been known at trial, the original expert’s view on the time of death ‘should not have been admitted over objection’ (at [29]). Consequently, the new evidence met the requirements of being highly probative, because time of death was an issue in dispute at trial.

Turning then to the interests of justice requirement, the Court noted that, contrary to the SASCFC majority’s reasoning, that a conviction is long-standing does not suggest that it would be against the interests of justice to consider fresh and compelling evidence (at [30]). Moreover, the SASCFC’s consideration of this issue was premised on the view that the new expert evidence did not undermine the conclusion of guilt: that approach conflated the issue of the interests of justice with the determinative issue in the appeal itself (at [31]).

The Court then turned to consider whether the appellant has established on the balance of probability that, in light of the new evidence, there is a significant possibility that a jury, acting reasonably, would have acquitted him. This required the Court to re-examine the entirety of the evidence (at [32]). The Court then examined the evidence in detail, beginning with witness statements and autopsy (at [33]ff), the appellant’s account (at [48]ff), the fibre evidence (at [55]ff), and the conduct of the trial (at [64]ff).

Turning to the question of a substantial miscarriage of justice, the Court held that the SASCFC majority were correct to conclude that there was no significant possibility that a properly instructed jury, acting reasonably, would have voted to acquit even if the initial expert’s erroneous opinion about the time of death was not in evidence (at [75]): there was no reasonably hypothesis that the deceased left the beach with the assailant and her body deposited there later (see [68]–[72]) and the strong fibre evidence did not likely come from either her own trousers or the jumper of a person other than the appellant (at [73]ff). The Court concluded, at [75]:

Deborah was last seen alive at around 4:00pm as she ran towards the beach. Had she continued running in the direction in which Mrs Hazelwood and Mr Tajak saw her running, she would have passed the location of the appellant’s parked car. Her body was found 324 feet from that location. The appellant was on the beach at this time and he was wearing his red and black woollen jumper. The inference of guilt depended upon all of the circumstances, but critical to it was the conclusion that it was not reasonably possible that another man, wearing a knitted garment made of red and black woollen fibres in approximately the same proportion as the red and black woollen fibres of the appellant’s jumper, was present on Taperoo Beach that afternoon, and that this other man killed Deborah. Dr Manock’s evidence said nothing as to this possibility. The elimination of Dr Manock’s opinion of the time of death leaves a window of 20 minutes after the appellant left the beach and before Mrs Leach saw Deborah’s dog playing alone in which expert evidence does not exclude the fatal assault taking place. It does not, however, significantly reduce the improbability of a second man, wearing a knitted garment made of red and black woollen fibres in approximately the proportion of the red and black woollen fibres of the appellant’s jumper, being present on this relatively deserted beach that afternoon.

Finally, on the application to reopen, the Court noted that the appellant sought an order on 9 August, after the Full Court had heard the appeal, to adduce further fresh evidence (at [76]). The Court declined to consider these submissions and others: the Court’s appellate jurisdiction is confined to appeals ‘in their true sense’, and the Court cannot receive evidence that has not been considered by courts below (at [77], and see [78]ff). The Court dismissed the summons, along with the appeal.