In Frits George Van Beelen v The Queen  HCA 48 (8 November 2017) the High Court of Australia has unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia (see R v Van Beelen  SASCFC 71 (13 July 2016)).
The appeal concerned section 353A(1) (Second or subsequent appeals) of the Criminal Law Consolidation Act 1935 (SA) (the Act), which provides:
The provision confers a jurisdiction on the Full Court of the Supreme Court of South Australia to determine a second or subsequent appeal against conviction in the case of fresh and compelling evidence. The Full Court of the Supreme Court of South Australia had refused the appellant's application for permission to bring a second appeal on the basis of new evidence.
The appellant was convicted in 1973 of the murder of a 15 year old school girl at Taperoo Beach in South Australia. The prosecution’s case was circumstantial and depended upon evidence that, given the time of death, the appellant was one of the few male persons with the opportunity to have committed the offence and upon further evidence as to the similarity between fibres found on the clothing of the appellant and of the deceased.
The pathologist who conducted the autopsy gave evidence at trial which was based on the "rate of stomach emptying", and which established that the deceased must have died by 4:30pm. The deceased had last been seen alive at around 4:00pm and unchallenged evidence indicated that the appellant had left Taperoo Beach not later than 4:30pm.
The appellant applied to the Full Court of the Supreme Court of South Australia for permission to bring a second appeal pursuant to section 353A(1) of the Act.
For a second or subsequent appeal to be brought under section 353A(1) the court must be satisfied that there is “. . . fresh and compelling evidence that should, in the interests of justice, be considered on the appeal”. The evidence will be "compelling" if it is “. . . reliable, substantial and highly probative in the context of the issues in dispute at the trial”.
The appellant's appeal was based on the fresh expert evidence, the results of studies conducted since the date of the trial, which was said to demonstrate that the pathologist's opinion concerning the rate of stomach emptying was " . . . unequivocally highly erroneous". The fresh evidence “falsified” the basis for the opinion that the deceased must have been dead by 4:30pm.
In a majority decision the Full Court of the Supreme Court of South Australia concluded that the fresh evidence was not "compelling" because it only confirmed the correctness of evidence given at the trial by an opposing defence expert and that the evidence did not possess high probative value in the context of the issues in dispute at the trial, again because the evidence of the time of death based on stomach emptying had been the subject of challenge at trial.
The appellant was granted special leave and appealed to the High Court , which held unanimously that the evidence was "compelling" within the meaning of s 353A(1) and that it was in the interests of justice for it to be considered on appeal.
On reviewing the evidence given at the trial, the High Court concluded that the prosecution had established beyond reasonable doubt that the deceased was dead by 4:50pm. In the absence of the pathologist's opinion concerning the time of death, there was a window of 20 minutes after the appellant left Taperoo Beach during which the expert evidence could not exclude the possibility that death occurred. The High Court held, however, that this did not significantly reduce the improbability of a person other than the appellant being the killer. The High Court held that the majority of the Full Court of the Supreme Court of South Australia had been right to conclude that there was not a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant even if the pathologist's opinion concerning the time of death had not been admitted - accordingly, the appeal was dismissed.
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Frits George Van Beelen v The Queen  HCA 48 (8 November 2017) and supporting transcripts and summaries.
R v Van Beelen  SASCFC 71 (13 July 2016)
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