R v Van Beelen

(2016) 125 SASR 253; [2016] SASCFC 71

South Australia Full Court

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal and new trial
3. › Second or subsequent appeal against conviction
4. › Fresh and compelling evidence
5. › Whether evidence 'substantial'
6. › Whether evidence 'highly probative in the context of the issues in dispute at the trial'
7. › Whether evidence should 'in the interests of justice be considered on an appeal'
8. › Criminal Law Consolidation Act 1935 (SA), s 353A
1. Criminal Law
2. › Appeal and new trial
3. › Miscarriage of justice
4. › Substantial miscarriage of justice
5. › Test on second or subsequent appeal
6. › Whether significant possibility jury acting reasonably would have acquitted
7. › Criminal Law Consolidation Act 1935 (SA), s 353A(3)
1. Criminal Law
2. › Appeal and new trial
3. › Fresh evidence
4. › Expert evidence
5. › Forensic pathology
6. › Time of death
7. › Stomach contents analysis
8. › Whether subsequent scientific research renders trial expert opinion unfounded
1. Evidence
2. › Expert evidence
3. › Admissibility
4. › Findings in other proceedings
5. › Whether judicial findings admissible to prove facts in subsequent proceedings between different parties
6. › Hollington v F Hewthorn & Co Ltd

Quick Take

For evidence to be 'substantial' under s 353A(6)(b) of the Criminal Law Consolidation Act 1935 (SA), it must reach both a qualitative and quantitative threshold — it must subsist or stand by itself, not merely confirm what was already before the jury at trial. Fresh expert evidence based on subsequent scientific research that confirms the correctness of a defence expert's trial opinion, without adding a materially different dimension, will not satisfy the 'substantial' requirement. The majority and dissent sharply diverge on whether evidence that incontrovertibly falsifies the scientific foundation of a prosecution expert's opinion is 'substantial' when a defence expert had already challenged that opinion at trial on less rigorous grounds.