Van Beelen v The Queen [2017] HCATrans 19 (10 February 2017)

Last Updated: 27 February 2017

[2017] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A35 of 2016

B e t w e e n -

FRITS GEORGE VAN BEELEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 10 FEBRUARY 2017, AT 10.05 AM

Copyright in the High Court of Australia

MR K.V. BORICK, QC: If the Court pleases, I appear with MR A.J. REDFORD for the applicant. (instructed by Michael Hegarty & Associates)

MR A.P. KIMBER, SC: I appear with MS F.J. McDONALD for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL CJ: Yes, Mr Borick.

MR BORICK: I will be, in the time available, dealing with three issues. First will be the meaning of the expression “interests of justice”; the second will be a summary of Professor Horowitz’s evidence, and the third will be dealing with the competence and credibility of Dr Manock.

Dealing with the issue of the interests of justice, prior to the introduction of section 353A of the Criminal Law Consolidation Act (SA) which is the relevant section, the expression “in the interests of justice” occurs only in two sections of the Act, and in section 285AB and section 359.

There is no judgment or even any discussion that we have found relevant to the meaning of the expression “in the interests of justice” between the introduction of the Criminal Law Consolidation Act in 1935 and 10 February 2017. There is no reference to the meaning of “interests of justice” in the judgment of the court below.

In neither of the two previous cases which have been dealt with under section 353A, that is Keogh and Drummond, is there in our view any specific reference to the meaning of the “interests of justice”. Specific reference is now made to paragraph 129 of the judgment of Lundy. I am just going to read – one brief paragraph I want to read. The court there said:

The essential elements of the defence case on time of death were available to trial counsel. As already observed, they were deployed to some effect in cross examination. But there is now a welter of evidence available from a number of highly reputable consultants which, if accepted, would nullify the claimed scientific support for the time of death which was so central to the Crown case. In these circumstances, the Board is in no doubt that the interests of justice demand the admission of the new evidence on this subject.

So there the court was talking particularly about the nullification, if you like, of the expert evidence presented at the time and referred specifically to the interests of justice in reaching their decision.

KIEFEL CJ: Mr Borick, before you get to the question of interests of justice, do you not have to satisfy the statutory requirement that the evidence can be seen to be both fresh and compelling? I do not think there was any issue in the court below that the evidence was fresh. The majority view in the Court of Appeal though considered that it could not be considered as compelling because it replicated evidence which had been before the jury.

NETTLE J: Replicated Dr Pocock’s evidence.

MR BORICK: Yes. In our submission, there can be no question that the evidence of Professor Horowitz was compelling and I will summarise it in this way. His evidence, that is the evidence of Professor Horowitz, shows that it is now possible to use calorific content rather than the weight or volume of food as a means of measuring gastric emptying rates. That was a significant shift in the scientific knowledge since the 1970s.

The point is that as a result of the techniques that have become available and the research that has been conducted in this area since that time, the science – and not opinion – now allows us to state positively in 1972/73 Dr Manock, in holding his specific scenario regarding the time of death, was wrong and not just unwise and dogmatic.

This is evidence that neither Dr Pocock nor any other pathologist who might have been called could have given at the time of the trials because there were no techniques available then to measure the rate of gastric emptying in humans precisely. That is our summary of Professor Horowitz’s evidence and, in our view it accords with the summary – longer – contained in the judgment of the Chief Justice in the court below.

KIEFEL CJ: Well, is it your case that that is new scientific evidence that could not have been put forward by the forensic pathologist called for the defence at trial?

MR BORICK: Yes, your Honour, and that is our summary which Mr Kimber may wish to attack if he wants to but we submit to this Court that our summary is an accurate description of Professor Horowitz’s evidence. I come back now to the question of the interests of justice and in paragraph 165 of the court below in the judgment of Justices Vanstone and Kelly, it is page 186 of the book, the majority in the court below made specific reference to the “interests of justice”. I use the word “reference”. They said even where there existed “compelling” fresh evidence:

it can be imagined that . . . it might yet not be in the interests of justice to receive it.

They then added, in this context:

consideration of the importance of finality will also be particularly –

relevant. When they talk about the importance of finality, they are talking about the principle of finality, and they went on to add –

particularly . . . where the conviction is of long standing.

In our submission, there are three things wrong with paragraph 165 of their judgment relevant to this application. One, how can this Court accept the undefined imagination of those two judges when they are talking about an understanding of Professor Horowitz’s evidence whether it is compelling or not? Second, they totally overlook the fact that section 353A came into operation to overcome the administrative principle of finality.

I refer to the administrative principle of finality because, in our submission, the principle of finality has nothing to do with the interests of justice. It is to do with the administration of the law and that is why it has developed in the way in which it has.

KIEFEL CJ: Do you say that it has no operation or a different operation, that is, the principle of finality, with respect to a criminal conviction?

MR BORICK: Pursuant to an appeal under 353A a principle of finality is irrelevant. In fact, 353A came into existence to overcome the problems that had been occasioned by the principle of finality and in our submission that is why the Parliament used the expression “interests of justice”. Now, we accept that the expression “interests of justice” is difficult to define and it has not been defined but it should be because if you look at the difference of approach between the two Supreme Court judges in South Australia and then the judges in Lundy, you see, in our submission, adequate reason why this Court should consider what is meant by the expression “interests of justice”. That, in our submission, is a special leave point.

Now, I have dealt with our summary of Professor Horowitz’s evidence and we maintain that it is clear that, based upon his evidence and the way the Chief Justice looks at it, that what he is talking about is a science which was not available at the time of the trial.

I turn to the evidence of Dr Manock. Can I take the Court to paragraph 145 of the judgment of Justices Vanstone and Kelly at page 179 of the book? Their Honours there are at paragraph 145 quoting from the direction of the trial judge all those years ago, and in the middle paragraph – I am going to read it to the Court – the jury were told:

To try and fix a time of death more precisely we have to consider the evidence of Dr Manock the pathologist. You will have to make up your minds as to whether you accept him as a man of science, competent in his work. You will have to determine what weight you give to his evidence, and since his evidence is in some respects founded on other evidence, especially on evidence of the stomach contents and the time of the last meal before death, you will have to examine that evidence too.

KIEFEL CJ: Mr Borick, was there any challenge, are you able to tell us, at trial as to the expertise of Dr Manock?

MR BORICK: I can answer that question fairly specifically, your Honour, because I was there at the time, so this comes from me, in a sense. Dr Manock had just been appointed. He had come from the United Kingdom and he had been appointed by various professional bodies in South Australia and it was assumed at that time that Dr Manock was a man of science and competent in his work and that he was qualified – properly qualified in the United Kingdom.

There was clearly at the trial conflict of evidence between Dr Manock and the expert we called that was – that was beginning to emerge about Dr Manock, but now I come to the main point we are making. You come to look at the history of Dr Manock subsequent to that time and you see reference by Justice Murphy in the case of Perry in the High Court and he talks about – this is the early 90s – appalling departure from forensic standards, or medical standards.

Then in the late 90s, Dr Manock gave evidence in three inquests, each involved the death of a young baby. The inquests were heard together at, as I understand it, the insistence of the police, but Dr Manock had given evidence in each case that the baby had died of bronchopneumonia. In every case that was clearly wrong. The babies had been battered to death and Manock subsequently was to agree that his evidence was wrong, or to use the words of the coroner at the time, “spurious”, and I did not agree with spurious but that is just the way the coroner found it, and that was because the people who had killed those boys might have come to get him.

KIEFEL CJ: If there were a grant of special leave in this matter, you would be seeking to attack the expertise or professional competence of Dr Manock by reference to findings made in other trials. Is that right?

MR BORICK: Yes, we will, and the third – I will just go quickly to the third one in the case of Keogh where the Court of Criminal Appeal found that he deliberately misled the jury. It is the combination of those, and there

are other issues that we will put before the Court if we get leave, showing that Manock is unqualified, incompetent and dishonest.

In Keogh the court had ordered a retrial. If the retrial had gone ahead, and it did not, and Manock had gone into the witness box, whoever was representing Keogh would have been putting to Manock “Do you agree that Justice Murphy found your evidence to be an appalling departure from standards?”

KIEFEL CJ: But what you are putting now could hardly be evidence in any appeal in this Court.

MR BORICK: Yes, it is, your Honour, because it - - -

KIEFEL CJ: But the hypothetical of what could have been put could not be evidence.

MR BORICK: No, the issue, your Honour, is whether those findings were made, and that is the fundamental difference between what you are putting to me and what was put in the court below.

KIEFEL CJ: I see that there has been some correspondence passing between the solicitors instructing you and the Director of Public Prosecutions. Do I infer from that that it will be sought to put further evidence before this Court in relation to Dr Manock?

MR BORICK: Yes, your Honour. If we are given leave and, by the way, we say this issue relates to the interests of justice also, that Dr Manock should be brought to justice, and it is a bit like a circumstantial evidence case. Each little bit on its own may not prove anything. It is when they are brought together and that is what we want to do and this Court should accept the bringing together of the whole case against Dr Manock so that the interests of justice can be properly brought to bear in deciding what should happen to those people who have suffered because of his incompetence and his dishonesty and his lack of scientific expertise. That, in our respectful submission, is a point for this Court. That is my submission, your Honour.

KIEFEL CJ: Yes, thank you, Mr Borick. Yes, Mr Kimber.

MR KIMBER: If the Court pleases, I begin by – I was unaware that the Court had any correspondence that might have passed between my office and the applicant, but ultimately with respect to the evidence relied upon, this Court must, of course, rely upon the evidence that was presented in the court below.

In my submission, the fact that there is new science about time of death that Professor Horowitz spoke of in the court below answers the question as to why the evidence was found unanimously to be fresh but it does not of itself say much if anything as to whether it is compelling. That requires a detailed analysis of how the case was run and also the evidence that Dr Pocock gave which challenged directly the conclusion of Dr Manock as to a time of death of no later than 4.30 pm.

NETTLE J: That is true but what is put against you is that whereas Dr Pocock’s evidence was of opinion, what can now be adduced through the new Professor Horowitz is scientific fact as demonstrated by evidential analysis.

MR KIMBER: That is true, further analysis. That is true, and that is why it was accepted as fresh evidence, but that is where one needs to look at what the context of this trial was, because what this evidence does in the view of the majority in the court below on the whole of the evidence is only extend the time of death beyond that estimated by Dr Manock by some 10 or 20 minutes, no more than that.

NETTLE J: That is critical – was that not critical because it depended upon whether the accused was capable of being on the beach between 4.30 and 4.50?

MR KIMBER: Not critical – important but not critical, because an estimate of time of death of possibly as late as 4.50 does not exclude the applicant as being the killer because he admitted that he was on the beach at 4.30, so it - - -

NETTLE J: But does it not admit of a reasonable possibility that it may have been somebody else?

MR KIMBER: Well, that requires an analysis of the whole of the evidence in the case and also the way the trial was conducted. There is a risk of an assumption here that the trial was conducted on the basis that because of the evidence in the trial she had to be dead by 4.30. Can I take the Court to the analysis in the joint judgment of what actually was put to the court on that issue because, in my submission, the case was not conducted on the basis that the whole of the evidence showed that she must have been dead by 4.30, and that is where this unanimous agreement of the court below that we are only extending the time of death out by 20 minutes has significance.

Can I take the Court to application book 177 and within paragraph 141 of the joint judgment, where within that paragraph is an extract from the prosecutor’s address highlighting the variables in Dr Manock’s evidence but saying, going on in the italicised passage, in the paragraph, beginning “There it is, ladies and gentlemen” at the top of the page.

It was not being put by the prosecutor that the whole of the prosecution case showed that she was dead by 4.30. Indeed, as the court observes in paragraph 142 and particularly in the final paragraph extracted within that paragraph, there was much more reliance placed upon the civilian evidence – the mother of the deceased who said that she got home at 4.40, looked out of the window and saw the dog on its own in the area of the beach.

The court then extracts in paragraph 143 a very strong submission about the fact “Do you not think she was dead by 20 to five?” The prosecutor was not putting that on the whole of the evidence the jury would find that she was dead by 4.30. This was then reinforced, in my submission, by the judge in the summing-up and the court extracts a lengthy passage, beginning at 145 – paragraph 145 of the judgment, but it is particularly over the page, at application book 180 and within 146 where the court says – the judge says:

It may be, on Dr Manock’s evidence alone, you could not be certain that [she] died before 4.30 pm -

refers then to the evidence of the mother:

you may also be satisfied that the attack was before 5 pm and probably before the time that the dog was playing alone –

about 4.40. So the case was not left to the jury on the basis that on the whole of the evidence in the prosecution case they could find with certainty that she was dead by 4.30. That becomes significant, as the joint judgment analyses, through paragraphs 150 to 152 but in particular in 152 that really the most powerful evidence of time of death came from the civilians – came from the mother, in particular, based upon her usual practice and her observations on that day and then, as they say at the end of paragraph 142, that this new evidence, this fresh evidence really only extends this window by 10 or 20 minutes.

They are the reasons that when the court comes later to examine why the evidence is not highly probative in the context of the issues in the case, in paragraphs 163 and 164, that they find that it is not highly probative because we are only talking about an additional 20 minutes of opportunity when the best evidence of time of death arguably was the civilian evidence that at trial extended out the time of death beyond what Dr Manock said in his opinion.

This might be a different case if the circumstantial evidence, outside of the evidence of Professor Horowitz, allowed for a time of death that stretched beyond 4.50 pm. But that is not the unanimous conclusion of the court below. All judges in the court below, including the Chief Justice in dissent, find that they should approach the question of substantial miscarriage of justice, the ultimate question under the section, on the basis that the child was dead by 4.50.

True it is the way the case was conducted, the applicant could not have been the killer much after, if at all, 4.30 pm because there was no challenge to the evidence of his wife that he picked her up very shortly after 5.00 pm from the city. But all we have is a case conducted at trial where the prosecutor and the judge allowed for a time of death of after 4.30 pm, a conviction against that background and now some further confirmation by science that the science does not tell us that she was dead by 4.30. But, the whole of the prosecution case already told the jury that at trial.

In my submission, it is that that underlies the approach of the majority, quite properly, for why the evidence is not substantial – paragraphs 161 and 162 in particular – and why it is not compelling. Unless the majority is wrong about not just one of those things, but both of them, this appeal must fail. Ultimately, in my submission - - -

KIEFEL CJ: It was a circumstantial case, obviously, and there were two main strands, Mr Kimber.

MR KIMBER: That is so. Perhaps three, but - - -

KIEFEL CJ: Yes, the other principal strand was the fibres.

MR KIMBER: Correct, and also the admission by the applicant that he was on the beach until at least 4.30 pm, and evidence that all known witnesses - the prosecutor did not put it as high, he could not – put it as high that all witnesses who might have been on the beach had been called, but all known people on the beach were called and gave evidence about not seeing anyone else and, of course, not being responsible themselves.

So there was the additional strand of “he was on the beach at 4.30”. So, as the prosecutor quite properly put it, we are not talking about a man wearing a black and red jumper with a number of fibres that matched those found on the deceased, that man being in the city at five o’clock, we are talking about that man being on this beach at 4.30 when there is no dispute that she was certainly on the beach from four o’clock with her dog and had been separated from her dog by no later than 4.40 because that was the observation of the mother who then later went across and got the dog, could not see her daughter, and returned to the house, all by about 4.50.

So it was more than the fibres, it was his admitted presence and, of course, related to the fibres, the presence of seaweed within the jumper in circumstances in which she had been buried beneath seaweed and he had described merely walking on the beach, he had not given any account either in his evidence at the first trial which was led, nor in the unsworn statement led at the second trial, nor in his interviews with police that could have explained the presence of seaweed in his jumper on that particular day, although he admitted wearing that jumper quite commonly.

So, in my respectful submission, what this case is ultimately about is no more than a difference of opinion about the significance of an agreed fact; that is, that agreed fact being that she was dead by 4.50 when Manock had said at trial that she was dead by 4.30 applied to an agreed test, the Mickelberg test, which is not challenged by Mr Borick, as to a substantial miscarriage of justice. It is a difference of opinion on a factual matter applied to a known and agreed set of facts and, in my respectful submission, that is not enough for a grant of special leave.

Can I turn to the issue of the interest of justice which is also raised by Mr Borick. We see that in the joint judgment at application book 186 at paragraph 165. In my submission, this is not an appropriate case for this Court to consider the meaning of that phrase, for a number of reasons. The first is it must be dependent upon the particular facts of a case. It is a phrase of wide import.

Secondly, the approach of the court below to the interests of justice is not part of the ratio of their decision. They had already determined, as your Honour the Chief Justice points out, that not only was the evidence not substantial, it was not compelling. But they went on to consider that question as a matter of completeness and they do not purport to state any principle of law about what amounts to the interests of justice. It is an application by them of the particular facts of this case to that phrase without seeking to define it.

It is the case that in the – I think it is the third-last sentence of that paragraph, they mention the issue of finality, but that is an afterthought, an afterword by them, after they have already determined that the evidence is not compelling, after they have already determined earlier in the paragraph for other reasons that it is not in the interests of justice to consider it. It is, without being flippant, obiter within obiter, the reference to finality in that paragraph. So this case, in my submission, does not provide an appropriate vehicle to consider the significance or insignificance of finality to the question of the interests of justice if there is fresh and compelling evidence.

There is yet a further feature of this case, and that is that the joint judgment went even further and they determined that even if the evidence was fresh and was compelling, and even if it was in the interests of justice to consider it in the appeal, they would not have found there was a substantial miscarriage of justice, applying the very same legal test as was applied by the Chief Justice.

It comes back to this difference of opinion about the significance or insignificance of an agreed fact, that is, that this girl was dead, on the whole of the evidence now available, by 4.50 that afternoon. I say again, given the way the case was conducted, that was not wholly different to what confronted the jury at trial.

Mr Borick takes up the issue of the evidence as to such - as it is claimed to be with respect to Dr Manock in the court below. In my respectful submission, the court below are unanimous that there was no evidence that was admissible other than that of Professor Horowitz. More importantly, perhaps, there is no reason at all to doubt that conclusion.

If one looks at the analysis in the joint judgment, in particular, one can see that it is no more than a set of transcript, arguably unknown, that the applicant conceded in the court below was not admissible, and there is an inadequate reason to doubt, in my submission, that the court below’s analysis of the fact that what is said in other judgments involving different parties is not evidence of those facts that can be brought to bear, it is rank hearsay.

But even more than that in this case there would have to be a challenge, and a successful challenge, to the conclusion of the court below at about paragraphs 110 and 111 that, even if this material was admissible, it did not rise to the level that the applicant needed it to rise to. So, if the Court pleases, for those reasons, and against the background of what Mr Borick has identified as the key issues today, they are my submissions.

KIEFEL CJ: Yes, thank you, Mr Kimber. Any reply, Mr Borick?

MR BORICK: Your Honour, just briefly, Mr Kimber referred to the passage at the top of page 178 of the book, starting:

There it is, ladies and gentlemen, accept his opinion, if you feel you can. If you feel you ought to, reject it –

and it goes on. But he did not read the bit at the end:

but don’t let us entertain this story about him being irresponsible and having no basis in the authoritative scientific work, because I submit to you on the basis of what I have just put to you this is just not true.

The prosecution at the trial clearly relied very heavily on Dr Manock’s scientific evidence, so-called, to remove from the jury any chance of considering a time of death when Van Beelen was not on the beach. Once they accepted Dr Manock’s evidence they were prevented from considering what could have happened at a subsequent time. That has to be considered against the background of the fact that after the trial was over the defence learned for the first time another man by the name of.....had confessed to the murder of Debbie Leach. Manock’s evidence qualified that confession.

KIEFEL CJ: The Court will adjourn for a short time to consider the course it will take.

AT 10.41 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

KIEFEL CJ: There will be a grant of special leave in this matter confined, however, to the question of the fresh evidence. That is to say, proposed grounds of appeal 2.1 will form no part of the grant of special leave, nor will any matter which is put forward with respect to the qualifications of Dr Manock or his good faith. Would the matter be completed within a day, Mr Borick?

MR BORICK: Given the limitation upon the case, yes.

KIEFEL CJ: Would you agree with that, Mr Kimber?

MR KIMBER: Yes, I would, your Honour.

KIEFEL CJ: Thank you, gentlemen. The Court will now adjourn to reconstitute.

AT 10.45 AM THE MATTER WAS CONCLUDED