Van Beelen v The Queen [2017] HCA 48

HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ

FRITS GEORGE VAN BEELEN APPELLANT

AND

THE QUEEN RESPONDENT

Van Beelen v The Queen [2017] HCA 48 8 November 2017 A8/2017

ORDER

1. Summons filed 9 August 2017 dismissed.

2. Appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation

K V Borick QC and F R Gerry QC with A J Redford for the appellant (instructed by Michael Hegarty & Associates)

A P Kimber SC with F J McDonald for the respondent (instructed by Director of Public Prosecutions (SA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Van Beelen v The Queen

Criminal law – Appeal against conviction – Second or subsequent appeal – Application for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act 1935 (SA) – Where appellant convicted of murder – Where expert evidence of time of death given at trial based on stomach contents of deceased – Where new evidence demonstrated expert estimation of time of death at trial erroneous – Where new evidence required to be fresh and compelling in order to be admitted – Where evidence compelling if reliable, substantial and highly probative in context of issues in dispute at trial – Whether new evidence substantial – Whether new evidence highly probative in context of issues in dispute at trial – Whether in interests of justice to consider new evidence on appeal – Whether admission of evidence based on stomach contents at trial occasioned substantial miscarriage of justice – Whether significant possibility jury acting reasonably would have acquitted had new evidence been before it.

Words and phrases – "compelling", "fresh evidence", "highly probative in the context of the issues in dispute at the trial", "second or subsequent appeal", "substantial", "substantial miscarriage of justice".