DANIEL TROY AMES v THE KING [2023] SASCA 85

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE PEEK) SCCRM-11-59 Applicant: DANIEL TROY AMES Counsel: MR T COX KC WITH DR H TONKIN - Solicitor: MCMAHON & CO BARRISTERS AND SOLICITORS Respondent: THE KING Counsel: MR J PEARCE KC WITH MR W SCOBIE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/08/2022, 19/08/2022, 25/08/2022, 28/09/2022 File No/s: SCCRM-21-368 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. AMES v THE KING [2023] SASCA 85 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 10 August 2023 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - TO CONSIDER FRESH EVIDENCE APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE - WHERE RESULT OF TRIAL NOT AFFECTED CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE This is an application for permission to pursue a second or subsequent appeal against conviction by the applicant, Daniel Troy Ames, pursuant to s 159 of the Criminal Procedure Act 1921 (SA) (‘the CPA’). On 29 November 2011, following a trial by judge alone, the applicant was convicted of the murder of his uncle, Allan Ames (‘the deceased’). The cause of death was a single gunshot wound to the head. The deceased’s body was located at industrial premises in Cavan, which he owned (‘the Cavan premises’). The estimated time of death was approximately midnight on 25 November 2009. There was no dispute at trial that the applicant was in the company of the deceased at the Cavan premises between 9:52pm on 24 November 2009 and 12:14am on 25 November 2009. He was the last known person to have seen or spoken to the deceased. Nor was there any dispute at trial, or on appeal that -- 1 of 67 -- the applicant was in the company of his friend, Mr Peter Lagerwey (‘Lagerwey’), before and after he attended at the Cavan premises. The primary issue in dispute at trial was the identity of the offender. The prosecution case was circumstantial. The applicant did not give evidence at trial, nor call any evidence. In challenging the prosecution case, the applicant submitted that the prosecution had not proven that he was present when the deceased was killed and had not established a motive on his part to kill his uncle. The trial Judge ultimately concluded that the circumstantial evidence excluded all reasonable hypotheses consistent with the applicant’s innocence. On 21 June 2012, the Court of Criminal Appeal dismissed the applicant’s appeal against conviction. On 11 September 2013, the High Court dismissed an application for special leave to appeal against the judgment of the Court of Criminal Appeal. The applicant now seeks permission to pursue a second or subsequent appeal under s 159 of the CPA on the basis of ‘fresh and compelling evidence’ which should, in the interests of justice, be considered on appeal, and which the applicant contends establishes a substantial miscarriage of justice. The applicant submits the fresh evidence is relevant to a reasonable possibility that another person, or persons, committed the murder. The applicant also submits the fairness of the trial was undermined due to a procedural irregularity by reason of a failure by police to disclose information, which denied him the opportunity to explore other lines of inquiry on the issue of identity and therefore resulted in a substantial miscarriage of justice. In support of the application, the applicant relies on four bodies of evidence. First, the evidence of Mr Craig Peterson (‘Peterson’), who purports to have been present when Lagerwey confessed to having killed the deceased shortly before his death on 13 July 2016. Second, the evidence of EC that Lagerwey admitted he was ‘involved’ in the murder and had disposed of the murder weapon. Third, the evidence of M that ‘RC’, prior to his death, told him that his daughter, SC, had attended at the Cavan premises with Lagerwey to carry out a drug deal and had accidently shot the deceased. Fourth, the evidence of Mr Roderick Huppatz (‘Huppatz’), the investigating officer, that Lagerwey told RC of matters associated with the murder which were not fully and properly disclosed to defence counsel at trial. The applicant also relies on aspects of the evidence of SC as to her observations of 'bricks' of methylamphetamine and a pistol at her home, where she lived with Lagerwey, the morning after the deceased’s death. There was no dispute on this application that the first three bodies of evidence are ‘fresh’ in that the evidence could not, even with the exercise of reasonable diligence, have been adduced at the trial. However, in relation to the fourth body of evidence, the respondent contended that there was sufficient police disclosure such that the relevant material could have been obtained with reasonable diligence. On the initial hearing of this appeal, the applicant adduced evidence from Peterson, Mr Eugene McGee and EC. In response, the Director called evidence from Ms Marie Badman (the mother of Lagerwey), SC and Huppatz. At the conclusion of the hearing, M contacted the applicant’s legal representatives with further information having seen media reports of the proceedings. The applicant sought to re-open the appeal hearing and filed two affidavits of M, both sworn on 29 August 2022. In response, the Director filed statements of Mr Simon May dated 19 September 2022 (as to prison movement records) and Ms Zoe Bourne dated 27 September 2022 (as to prison visits). This Court heard further evidence from the applicant, M and SC in a subsequent hearing. Whilst the disposition of the appeal ultimately required a consideration of the evidence sought to be adduced in relation to s 159 of the CPA, it was first necessary to determine whether the fresh evidence was admissible on the application pursuant to s 34KA of the Evidence Act 1929 (SA) (‘the Evidence Act’). Held, per the Court, granting permission to appeal, but dismissing the appeal: -- 2 of 67 -- 1. The fresh evidence adduced on appeal is admissible for the purposes of s 34KA of the Evidence Act. 2. The evidence of Peterson as to Lagerwey’s purported confession to having killed the deceased is not reliable nor substantial and therefore not compelling for the purposes of s 159(6)(b) of the CPA. 3. The evidence of EC as to Lagerwey’s purported admission that he was ‘involved’ in the murder and had disposed of the murder weapon is not reliable nor substantial and therefore not compelling for the purposes of s 159(6)(b) of the CPA. 4. The evidence of M as to RC’s purported statement that his daughter, SC, had accidently shot the deceased whilst attending at the Cavan premises in the company of Lagerwey to carry out a drug deal is not reliable nor substantial and therefore not compelling for the purposes of s 159(6)(b) of the CPA. 5. The evidence of SC as to her observations of 'bricks' of methylamphetamine and a pistol at her home the morning after the deceased’s death is reliable in that she was telling the truth, but it is not substantial in the sense that it merits being accorded weight in undermining the prosecution case as to the identity of the offender. Nor is her evidence on this topic highly probative in the context of the issues in dispute at the trial. It is therefore not compelling for the purposes of s 159(6)(b) of the CPA. 6. The evidence of Huppatz regarding the non-disclosure of parts of his conversation with RC is fresh evidence for the purposes of s 159(6) of the CPA. The evidence is reliable and substantial in that it is of real significance or importance with respect to the matter it is to be adduced to prove, namely that the applicant did not receive a fair trial due to failure by the police to disclose information which denied him the opportunity to explore other lines of inquiry on the issue of identity. Further, the evidence is highly probative in the context of the issues in dispute at the trial, namely in establishing procedural irregularity. The evidence is therefore fresh and compelling. It is in the interests of justice to consider the evidence on this appeal. 7. The applicant’s conviction was inevitable notwithstanding the failure by police to disclose relevant materials to defence counsel. This procedural irregularity did not place the applicant at any significant forensic disadvantage such that it made a difference to the outcome of the trial. It was not a significant possibility that the trial Judge, acting reasonably, would have acquitted the applicant had the fresh evidence of Huppatz been disclosed to defence counsel at the time of the trial. Australian Solicitor's Conduct Rules 2015 r 29.5; Criminal Justice Act 2003 (UK) s 116; Criminal Law Consolidation Act 1935 (SA) s 353A; Criminal Procedure Act 1921 (SA) ss 157, 159, 159(1), 159(2), 159(3), 159(6), 159(6)(a), 159(6)(b), 159(7); Criminal Procedure Act 2009 (Vic) ss 274, 276, 326A, 326D; Director of Public Prosecutions Act 1991 (SA) s 10A(1); Evidence Act 1929 (SA) s 34KA, 34KD, 34KD(1), 34KD(2), referred to. Baini v The Queen (2012) 246 CLR 469; R v Ames [2011] SASC 203; R v Drummond (No 2) [2015] SASCFC 82; R v Haines [2016] SASC 96; R v Keogh (No 2) (2014) 121 SASR 307; R v Keonig (2013) 229 A Crim R 108 ; Roberts v The Queen (2020) 60 VR 431; Roberts v The Queen [2020] VSCA 277; Van Beelen v The Queen (2017) 262 CLR 565, discussed. Ames v The Queen [2013] HCATrans 214; Festa v The Queen (2001) 208 CLR 593; Grey v The Queen (2001) 75 ALJR 1708; Helps v The Queen (No 3) [2021] SASCFC 10; Lee v The Queen (2014) 253 CLR 455; Mallard v The Queen (2005) 225 CLR 125; Mickelberg v The Queen (1989) 167 CLR 259; Quartermaine v The Queen (1980) 143 CLR 595; R v Ames (2012) 281 LSJS 34; R v Forrest (2016) 125 SASR 319; R v Nylander (2003) 228 LSJS 24; R v Ward [1993] 1 WLR 619; Ratten v The Queen (1974) 131 CLR 510; Wood v The Queen (2012) 84 NSWLR 581, considered. -- 3 of 67 -- -- 4 of 67 -- AMES v THE KING [2023] SASCA 85 Court of Appeal – Criminal: Livesey P, Bleby and David JJA 1 THE COURT: This is an application for permission to pursue a second or subsequent appeal by the applicant, Daniel Troy Ames, pursuant to s 159 of the Criminal Procedure Act 1921 (SA) (‘the CPA’). 2 On 29 November 2011, after a ten-day trial without a jury, the applicant was convicted of the murder of his uncle, Allan Ames (‘the deceased’).1 On 21 June 2012, the Court of Criminal Appeal dismissed the applicant’s appeal against conviction.2 On 11 September 2013, the High Court dismissed an application for special leave to appeal against the judgment of the Court of Criminal Appeal.3 Overview 3 The deceased was killed by a single gunshot wound to the head. His body was located at 14 Thomas Street, Cavan, which were industrial premises owned by the deceased (‘the Cavan premises’). There was no dispute that the cause of death was a single gunshot wound to the head. The projectile entered the front of the deceased’s head at an angle of 35 degrees from the horizontal at a point 10cm above, and just to the right of, the bridge of the nose in the right frontal scalp. The projectile came to rest beneath the skin at the rear of the neck. Death would have followed almost immediately after impact. 4 The forensic evidence at trial included a pathologist’s best estimate of the time of death as approximately midnight on 25 November 2009, with a range of error of plus or minus 2.8 hours (roughly 9:15pm to 2:45am) with a 95 per cent certainty of that result being correct.4 5 The applicant was in the company of the deceased at the Cavan premises between about 9:52pm on 24 November 2009 and 12:14am on 25 November 2009. He was the last known person to have seen or spoken to the deceased. The business premises of ‘Cross Cranes’ which are situated at 13 Thomas Street, on the opposite side of the street to the Cavan premises, had a closed circuit television system which recorded movements to and from the premises (‘the Cross Cranes CCTV footage’). It recorded the applicant’s arrival at the Cavan premises at about 9:52pm on 24 November 2009, and his departure from the Cavan premises at about 12:14am on 25 November 2009. 1 R v Ames [2011] SASC 203. 2 R v Ames (2012) 281 LSJS 34. 3 Ames v The Queen [2013] HCA Trans 214. 4 R v Ames [2011] SASC 203 [64]. It is to be noted that the Addendum Autopsy Report tendered at trial estimated the time of death to be 12:30am on 25 November 2009 plus or minus 2.8 hours. -- 5 of 67 -- [2023] SASCA 85 The Court 2 6 In relation to the layout of the Cavan premises, there were three buildings on the property. The most northerly building was a detached office building. Proceeding south, the second building was an industrial shed (‘the smaller shed’). On the eastern boundary, there was a gap between the boundary and the eastern side of the shed, producing a walkway. At the relevant time, however, it was filled with debris. On the western boundary there was a large gap between the western boundary and the western side of the smaller shed, also producing a walkway. In a further southerly direction, the smaller shed abutted a third building which was a larger brick shed (‘the large shed’) which extended east to west across the whole of the block of land. This was the shed in which the deceased’s body was found. 7 The main mode of access to the large shed was from a path which ran from Thomas Street via a large sliding gate. There were no doors, windows, or other points of access on the western, southern or eastern sides of the large shed. At the northern end of the large shed, at the eastern corner, there was additional access by virtue of a small blue wooden door (‘the blue door’). Access to the large shed via the blue door could be gained from the neighbouring property to the east, 12 Thomas Street. The blue door itself was fitted with a simple lock. If a person was inside the large shed, he or she could open the door, turn the lock, exit and close the door, thus locking the door. The lock on the blue door was found in the locked position when police inspected it on 25 November 2009. There was no sign that it had been forced. The soil adjacent to the outside of the blue door appeared undisturbed. 8 Above the blue door was a gap in the iron sufficient to allow a person to enter if he or she was able to manoeuvre into that position. The police inspection on 25 November 2009 found no evidence that there had been access by this route. For example, no ladder was found at this location. 9 There were two sensor lights at the Cavan premises: one operating from the large shed (‘the rear sensor light’); and the other from the small shed (‘the front sensor light’). The sensor lights were activated by persons walking through the front gate, past the small shed and towards the large shed. They were working properly on 24 and 25 November 2009. Neither of the sensor lights was activated after the applicant’s departure from the premises at 12.14am on 25 November 2009. At trial, defence counsel adduced evidence that the sensor lights were not tested until about six months after the murder, by which time the layout of the premises had changed and the rear sensor light was not functioning. 10 The evidence as to the applicant’s movements on the evening of 24 November 2009, and in the early hours of the morning on 25 November 2009, was primarily drawn from the Cross Cranes CCTV footage. The applicant’s home at 30 Malta Drive, Parafield Gardens was fitted with CCTV cameras (‘the Malta -- 6 of 67 -- [2023] SASCA 85 The Court 3 Drive CCTV footage’). Evidence of his movements was also drawn from that CCTV footage.5 11 The applicant left his home at 30 Malta Drive sometime between 9:38pm and 9:40pm on 24 November 2009 in a Nissan Navara dual cab utility (‘the Navara’).6 Prior to leaving his house, the Malta Drive CCTV footage captured him carrying a shopping bag to his car and placing it in the back of the Navara.7 The Navara was recorded travelling south on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park at 9:42pm. The applicant was recorded on CCTV shortly after that, buying fuel at the BP service station on the eastern side of Port Wakefield Road, about 500-600 metres before the junction of Port Wakefield Road and Thomas Street. He is seen on the BP service station CCTV shortly before his arrival at the Cavan premises at 9:52pm.8 It was an agreed fact at trial that the applicant’s Navara was parked directly outside the Cavan premises from 9:52pm on 24 November 2009 until 12:14am on 25 November 2009. The applicant left the Cavan premises at 12:14am on 25 November 2009. Upon leaving the premises, he is depicted in the Cross Cranes CCTV footage walking quickly around the back of the Navara before getting into the front driver’s seat of the vehicle. At the appeal hearing it was put to him, in cross-examination, that when he walked around the rear of the Navara, he placed a quantity of drugs and the murder weapon (a gun) into the tray of the utility. He denied those allegations. 12 The applicant returned to his home at 30 Malta Drive at 12:26am on 25 November 2009. His vehicle was not recorded travelling north on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park (which continuously monitored all north and south bound vehicles). By reason of that evidence, the trial Judge found that the applicant did not travel home by the same route he had initially taken to the Cavan premises. After returning home, the applicant changed his clothes and left the premises about 20 minutes later, at 12:56am. 13 There was no dispute on appeal that the applicant was in the company of Mr Peter Lagerwey (‘Lagerwey’) before and after he was with the deceased at the Cavan premises from 9:52pm on 24 November 2009 until 12:14am on 25 November 2009. The Malta Drive CCTV footage showed the applicant and Lagerwey present at the applicant’s home from 7:21pm until 9:18pm, at which time Lagerwey left. The applicant remained at his home until about 9:38pm, when he left for the Cavan premises in his Navara. 14 After leaving the Cavan premises, the applicant received two missed calls from Lagerwey, and then returned his call. In his record of interview, the applicant told police that after he left home (for a second time), he attended Lagerwey’s 5 Trial Exhibit P70 – Table of Contents 6 It was an agreed fact at trial that the applicant owned a Nissan Navara twin cab utility Reg No SA S064ACM. 7 Trial Exhibit P55 – Bundle of Photographs; Appeal Transcript T59.24-38; T60.1-16; T344.22-38. 8 Trial Exhibit P61 – Photograph taken from CCTV footage at BP Service Station. -- 7 of 67 -- [2023] SASCA 85 The Court 4 home at Valley View to discuss Lagerwey’s ‘relationship problems’, where he stayed until he returned home.9 15 The deceased’s body was found by Mr Paul Martino at about 8:48am on 25 November 2009. Mr Martino worked at ‘Cross Cranes’. At about 6:50am, Mr Martino attended at the front gate of the Cavan premises, after another employee of Cross Cranes had raised concerns that an interior light had been left on overnight in the large shed, which was unusual. Mr Martino found the gate to be unlocked, but the padlock had been turned to give the appearance of being locked although the hasp was not in fact engaged. He did not enter the Cavan premises and returned to his home. However, Mr Martino remained concerned and went back to the Cavan premises at about 8:47am, at which time he entered the premises and found the deceased’s body. 16 The deceased was found lying on his back in a relatively straight position on the floor of the large shed. There was obvious extensive bleeding from the head. A large hacksaw was situated near his extended right arm. Near his feet, was a table on which were located a small set of battery-operated scales, a cutlery knife and a small hacksaw. The blades of both hacksaws were tested and found to have methylamphetamine residue with a minor component of MDMA adhered to them. The cutlery knife was also tested and found to have methylamphetamine residue on it. Methylamphetamine residue was also found on the table top itself. In the top pocket of the deceased’s shirt was $600 in $50 notes. Three further amounts of cash, in denominations of $50 and $100 notes, were found in other locations at the Cavan premises, amounting to a total of $8,000. A large quantity of unused heat-sealed bags were found within the large shed, along with two tubs containing methylamphetamine and a number of hydroponic cannabis plants and clones. 17 On the floor of the large shed was a fired Remington .380 auto pistol cartridge case; however, no firearm was found in the immediate proximity of the body. Numerous firearms were located throughout the Cavan premises and at the deceased’s home, although none was considered capable of firing the cartridge or projectile that caused his death. The murder weapon was not located. The issues at trial 18 The key issue at trial was the identity of the offender. The prosecution case was circumstantial, and was summarised by the trial Judge, in his reasons for verdict, in the following terms: The prosecution case is that a conclusion that the accused murdered the deceased is inevitable on the basis of all of the evidence and inferences including the following: • The accused was the last known person to have seen or spoken to the deceased while he was alive. 9 Trial Exhibit P50 – Record of Interview of 5 December 2009 at pp 33-35. -- 8 of 67 -- [2023] SASCA 85 The Court 5 • The accused was with the deceased from 9.52pm until 12.14am, a period of about 2¼ hours. • The best estimate of Dr Gilbert of the time of death is 12 midnight (although a later time is possible). • The widow of the deceased commenced to telephone the deceased from 1am to 3am. None of the calls were answered, with the inference suggested by the prosecution being that the deceased was dead by 1am. • When the accused arrived at 9.52pm and left at 12.14am, the sensor lights activated on both occasions due to movements on the premises but they did not come on again after the accused had left. This tends to indicate, first, that the deceased was not moving around the premises after the accused had left and, second, no other person attended at the premises until the body was later discovered. • A theory of a killing in the course of a robbery by a stranger with a firearm is fanciful in the light of the fact that $600 was found in the deceased's wallet which was on his person and would have been located by the most superficial search. Other cash to the total of $8,000 was found in various parts of the premises and there was no indication on the deceased's body of the kind of assault or torture that one might expect to have been applied by a criminal prepared to kill to persuade the deceased to produce money if he were suspected to have it. A number of firearms were found at the premises and some were quite easily seen in the in situ photographs but were not taken. • There was an inference of an association between the deceased and the accused to be drawn from the facts in that the deceased was in possession of methyl-amphetamine (mixed with a very small amount of MDMA) at the time of his death and a substantial amount of methyl-amphetamine (mixed with a very small amount of MDMA) was found hidden at the home of the accused ten days after the death. • CCTV footage recorded at the home of the accused during 24 and 25 November 2009 shows that between 9.19pm and 9.35pm the accused changed from the clothes that he was wearing (“outfit 1”) to different clothes (“outfit 2”) prior to his departure at about 9.40pm for 14 Thomas Street where he arrived at 9.52pm. After leaving 14 Thomas Street at 12.14am and returning home, he again changed into still different clothes (“outfit 3”) prior to again departing the premises at 12.56am and later returning again at 2.56am. • When interviewed by police on 5 December 2009, the accused clearly lied in stating that he had only been in the company of the deceased for 20 to 25 minutes on 24 November 2009. The prosecution submit that his lies on this topic evinced a consciousness of guilt. • The accused also stated that he returned home by the same route that he came, namely via Port Wakefield Road. This is shown to be false by the records of a Safe-T-Cam situated on Port Wakefield Road which recorded the south bound travel of the accused's vehicle but did not record the claimed north bound travel. The time taken by the accused to return from 14 Thomas Street to his home (about twelve minutes) was significantly greater than the usual time for travel between those two points (about five minutes) and is consistent with an immediate disposal of the firearm by the accused. -- 9 of 67 -- [2023] SASCA 85 The Court 6 • When requested by police on 5 December 2009 to produce the clothes he was wearing at the time of his visit to 14 Thomas Street, the accused stated that the top he had been wearing was a black long sleeve tee shirt (which corresponded to “outfit 2” referred to above) but claimed to be unable to find it. • On 5 December 2009, samples were taken from a number of locations in the accused's Navara vehicle and were tested for gunshot residue. It was said that two of the samples were found to be consistent with gunshot residue. (The admissibility of this evidence was challenged by Mr Boucaut and I will consider this matter below). 19 The applicant did not give evidence at trial nor call any evidence. In challenging the prosecution case, the applicant submitted that the prosecution had not proven that he was present when the deceased was killed and had not established a motive on his part to kill his uncle. Further, it was submitted that the evidence of the deceased’s involvement in the drug trade suggested that he was associating with persons who may wish to do him harm, and the fact that the deceased was security conscious, and that a knife and machete were located in the back of his vehicle, indicated that he was expecting trouble. 20 Defence counsel submitted that Dr Gilbert’s evidence as to the time of death was ‘rubbery in the extreme’ and a ‘guesstimate’ and there was opportunity for another person to have killed the deceased after the applicant left the premises. 21 In relation to the sensor lights not having been activated after the applicant left the premises at 12:14am, defence counsel submitted that there was no evidence as to what activity may or may not trigger the sensor lights, and the prosecution had not excluded, as a reasonable possibility, that another person subsequently entered the premises, killed the deceased, and left the premises without activating the sensor lights. 22 In his reasons for verdict, the trial Judge ultimately concluded that the circumstantial evidence excluded all reasonable hypotheses consistent with innocence and the prosecution case was ‘cohesive and overwhelming.’ His Honour said: I have carefully considered all of the above matters and all of the evidence and submissions by both counsel. I have also considered whether there are other matters that can be put in favour of the accused. I have come to the conclusion that, taken as a whole, the prosecution case is cohesive and overwhelming. Any hypothesis of innocence of the accused requires such an unlikely combination of events and circumstances that it is to be dismissed as fanciful with the result that there is no rational hypothesis or reasonable hypothesis consistent with the innocence of the accused. 23 The trial Judge found the deceased was alive shortly before the applicant arrived at the Cavan premises at 9:52pm on the basis of the Cross Cranes CCTV footage and the evidence of a civilian witness, Mr Birch, whose home the deceased briefly attended shortly after 9:00pm. -- 10 of 67 -- [2023] SASCA 85 The Court 7 24 As outlined above, there was no dispute at trial, and the trial Judge found proven, that the applicant was with the deceased at the Cavan premises from 9:52pm on 24 November 2009 until 12:14am on 25 November 2009. 25 In relation to the time of death, the trial Judge accepted the evidence of Dr Gilbert that the approximate time of death was at around midnight, with a range of error of plus or minus 2.8 hours (roughly 9:15pm to 2:45am) with a 95 per cent certainty of that result being correct; a bell curve statistical distribution with the greatest probabilities being at the middle area of the curve. It is to be immediately noted that this finding is not inconsistent with the addendum autopsy report prepared by Dr Jonathon Herbst,10 who estimated the time of death to be 12:30am on 25 November 2009, plus or minus 2.8 hours (which would place the time of death between 9:45pm to 3:15am). 26 In relation to the sensor lights at the Cavan premises, the trial Judge found the sensor lights came on when the deceased went to the front gate to allow the applicant to enter at 9:56pm; and they continued to turn on and off at various times while the applicant was on the premises.11 The trial Judge found that at 11:04pm both sensor lights were off and remained off for a full hour until 12:04am, when the rear sensor light came on, with the front sensor light being activated at 12:13am, when the applicant was leaving the premises. After the applicant’s departure, neither of the sensor lights came on again. 27 In relation to the applicant’s record of interview with police on 5 December 2009, the trial Judge found that he told deliberate lies on three topics. • First, the applicant said that his visit with the deceased at the Cavan premises on the evening of 24 November 2009 lasted ‘maybe 20 to 25 minutes’ and that he was home after leaving the Cavan premises by ‘say quarter to ten I spose’. The trial Judge found that the visit in fact lasted for at least two and a quarter hours and that the applicant left the Cavan premises at 12:14am on 25 November 2009. His Honour rejected any suggestion that this falsity was due to a mere mistake or faulty memory. • Second, the trial Judge found the applicant told a deliberate lie when he said that he returned home from the Cavan premises by the same route that he had arrived there. • Third, the trial Judge found that the applicant lied when he told police that the deceased accompanied him to the front gate as he left the Cavan premises for the final time. His Honour concluded that, had this occurred, both sensor lights would have been activated upon the 10 Autopsy Report prepared by Dr Jonathon Herbst dated 23 February 2011. 11 See Trial Exhibit P70 – Table of Contents. -- 11 of 67 -- [2023] SASCA 85 The Court 8 deceased’s return to the shed. The sensor lights were not triggered again after the applicant left the premises. 28 However, the trial Judge rejected the prosecution contention that the accused lied during his police interview out of a consciousness of guilt. The trial Judge was not prepared to use the deliberate lies told by the applicant as evidence of guilt or an implied admission of guilt. Rather, his Honour found the applicant’s deliberate lies damaged his credibility to an extent that he placed little weight on his exculpatory statements in his police interview. 29 In relation to the evidence of gunshot residue found in the applicant’s Navara, the trial Judge placed no weight on this evidence, and indicated that had the trial been held before a jury, he would have acceded to defence counsel’s application to exclude the evidence. 30 The trial Judge found that the evidence was incapable of establishing that the applicant had a motive to commit the offence. However, his Honour considered that the absence of evidence of motive did not equate to positive evidence that there was no motive; nor was it a ‘positive and significant bar’ to the prosecution case. His Honour explained: In the present case, the accused and the deceased were not complete strangers such that one could reasonably postulate that there could be no possible motive for the accused to kill the deceased. The accused was at the deceased's premises for a period of about 2¼ hours on the night of his death. There was significant evidence that the deceased had been trading in methyl-amphetamine and methyl-amphetamine (mixed with a very small amount of MDMA) was found at 14 Thomas Street and near his body. There was also found on the premises of the accused at Malta Drive, ten days after the death, a substantial quantity of methyl-amphetamine (also mixed with a very small amount of MDMA). In such circumstances, it cannot be said that the absence of a known motive is a positive and significant bar to the prosecution case that the accused killed the deceased. In such circumstances, the Crown rightly submits that one simply does not know the precise relationship between the accused and the deceased. One simply cannot know whether or not the accused did have a motive to kill the deceased. 31 The trial Judge expressly considered the defence submission that the prosecution had not excluded as a reasonable possibility that either: a friend or acquaintance of the deceased may have arrived at the premises by the front gate and been let into the property by the deceased before killing him and leaving the premises; or a random thief entered the property without the deceased’s knowledge and killed him. His Honour rejected each scenario as a reasonable possibility given his finding that the sensor lights were not activated after the applicant left the premises. His Honour also considered that the fact the deceased was found with $600 in his pocket, and that there was a total of $8000 found in other locations at the Cavan premises, militated against the latter submission. 32 The trial Judge also considered defence counsel’s submission that the prosecution had not excluded as a reasonable possibility that another person (the real offender) entered the large shed via the blue door (which may have been -- 12 of 67 -- [2023] SASCA 85 The Court 9 left unlocked), or via the gap in the iron above the blue door, without triggering the sensor lights. His Honour rejected either scenario as a reasonable possibility and said: [W]hile I am prepared to accept that entry by these routes was not impossible, it is highly unlikely. It would have taken someone having great familiarity with both the layout of the property and the workings of the sensor lights, and also a good deal of agility in the dark, to achieve entry and avoid tripping either a sensor light or alerting the deceased by noise or by using a light source. 33 The trial Judge, in reaching a conclusion that there was no rational hypothesis consistent with the applicant’s innocence, emphasised: the applicant’s opportunity to commit the offence as he was the last known person to see the deceased alive; the approximate time of death was at around midnight with a range of error of plus or minus 2.8 hours (roughly 9:15pm to 2:45am) with a 95 per cent certainty of that result being correct; and the improbability that anyone else had accessed the premises without triggering the two sensor lights at the Cavan premises, which were not activated again after the applicant left the premises at 12:14am. His Honour concluded that any hypothesis of innocence of the applicant required such an unlikely combination of events and circumstances that it was ‘fanciful’ and there was no reasonable hypothesis consistent with the innocence of the applicant. 34 The trial Judge found the charge of murder proven beyond reasonable doubt. The application 35 The applicant seeks permission to appeal under s 159 of the CPA on the basis that there is ‘fresh and compelling’ evidence which should, in the interests of justice, be considered on appeal, and which the applicant contends establishes a substantial miscarriage of justice. The applicant contends that the ‘fresh and compelling evidence’ is relevant to: (i) a reasonable possibility that another person, or persons (Lagerwey or SC or both), committed the offence; and (ii) the unfairness of the trial by reason of police non-disclosure. 36 In support of the application, the applicant relies on four bodies of evidence. First, the evidence of Mr Craig Peterson (‘Peterson’) who purports to have been present when Lagerwey, shortly before his death on 13 July 2016, confessed to having killed the deceased. Second, the evidence of EC that Lagerwey said words to the effect that he was ‘involved’ in a murder and that he had disposed of the murder weapon. Third, the evidence of M that prior to his death, and whilst they were both in custody at Yatala Labour Prison, ‘RC’ told him that his daughter, SC, had been at the Cavan premises with Lagerwey to carry out a drug deal, and had shot the deceased when a firearm she was pointing at him accidentally discharged. SC gave evidence, in response, denying the assertion that she had been present or shot the deceased. The applicant also relies on aspects of the evidence of SC as to her observations of ‘bricks’ of methylamphetamine and a pistol at her home in the morning after the deceased’s death. Fourth, the evidence of Mr Roderick Huppatz -- 13 of 67 -- [2023] SASCA 85 The Court 10 (‘Huppatz’), a former Detective and the investigating officer, that Lagerwey told RC that he was involved in the murder (and of other matters associated with the murder) which were not fully and properly disclosed to defence counsel at trial. 37 More specifically, the applicant tendered the following material in support of the application: • Affidavits of Peterson sworn on 23 September 2021, 12 May 2022, and 4 July 2022. • Affidavits of EC sworn on 9 August 2021 and 19 October 2021. • Affidavits of Huppatz dated 25 November 2021 (excluding paragraphs [7], [8], [42] and [43]) and attached notes; and 9 June 2022. 38 In addition to the evidence said to be ‘fresh and compelling’, the applicant also relies on the following evidence: • The transcript of the trial before Justice Peek. • Affidavits of the applicant sworn on 12 May 2022 (excluding those parts of his affidavit referring to Lagerwey and Lagerwey’s statements). • Affidavits of Mr Eugene McGee dated 23 March 2022 and 15 July 2022. • Affidavit of Ms Chloe Kourakis affirmed on 31 March 2022. • Affidavit of Dr Anthony Thomas sworn on 5 April 2022. • Affidavit of Ms Yasmin Jade Alicia McMahon (with annexures) dated 13 May 2022. 39 The applicant submits the additional evidence which is not fresh and compelling is relevant for the following reasons: • for the applicant to deny the truth of various statements purportedly made by Lagerwey to RC as recorded by Huppatz; • to explain the lapse of time between the purported confession by Lagerwey in 2016 and instituting a second appeal in 2021; • to offer a response to the assertions made in the affidavit of SC (affirmed on 30 May 2022) and to corroborate the affidavits of Peterson; • to explain the availability, or otherwise, of trial exhibits; -- 14 of 67 -- [2023] SASCA 85 The Court 11 • to identify the issues in dispute at the trial; and • as relevant to an assessment of both whether it is in the ‘interests of justice’ for the fresh evidence to be considered on appeal pursuant to s 159(1) and the question of whether there has been a substantial miscarriage of justice under s 159(3). 40 In response, the Director of Public Prosecutions (SA) (‘the Director’) relies on the following tendered materials: • Affidavit of Ms Marie Badman (Lagerwey’s mother) dated 13 February 2022. • Affidavits of SC dated 30 May 2022 and 20 September 2022. • Affidavit of Professor Jason White dated 7 May 2022. • Affidavit relating to medical records of Lagerwey from the Queen Elizabeth Hospital dated 17 May 2022. • The trial statements of: Lagerwey dated 5 December 2009 and 25 June 2011; SC dated 27 February 2010; Detective Paul Ward dated 28 July 2010 (annexing a transcript of a police interview conducted with Lagerwey); Huppatz dated 29 July 2010 (with annexed exhibits); and Mr Christopher Hackett dated 2 July 2010 (with annexed materials). • Affidavit of Ms Lisa Duong dated 14 June 2022 (as to trial exhibits). 41 On the initial hearing of this appeal, the applicant adduced evidence from Peterson, Mr Eugene McGee, and EC. In response, the Director called evidence from Ms Marie Badman, SC and Huppatz. 42 At the conclusion of the hearing, M, having seen media reports of the proceedings contacted the applicant’s legal representatives with further information. The applicant sought to re-open the appeal hearing and filed two affidavits of M, both sworn on 29 August 2022. In response, the Director filed statements of Mr Simon May dated 19 September 2022 (as to prison movement records) and Ms Zoe Bourne dated 27 September 2022 (as to prison visits). 43 This Court heard further evidence from the applicant, M and SC in a subsequent hearing. 44 Before proceeding to consider the evidence adduced on the hearing of the appeal, it is necessary to consider the relevant legislative provisions. The statutory scheme 45 Section 159 of the CPA governs this application, and provides: -- 15 of 67 -- [2023] SASCA 85 The Court 12 159—Second or subsequent appeals (1) The Court of Appeal may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. (2) A convicted person may only appeal under this section with the permission of the Court of Appeal. (3) The Court of Appeal may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice. (4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial. (5) If the Court of Appeal orders a new trial under subsection (4), the Court— (a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but (b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person. (6) For the purposes of subsection (1), evidence relating to an offence is— (a) fresh if— (i) it was not adduced at the trial of the offence; and (ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and (b) compelling if— (i) it is reliable; and (ii) it is substantial; and (iii) it is highly probative in the context of the issues in dispute at the trial of the offence. (7) Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction. 46 Section 159 provides the Court of Appeal with jurisdiction and power to hear and determine a second or subsequent appeal against conviction if satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal, where the applicant has been granted permission to appeal under s 159(2). Accordingly, the requirements of s 159(1) are pre-conditions to the conferral of jurisdiction. The appeal may only be allowed if this Court is satisfied there was a substantial miscarriage of justice. -- 16 of 67 -- [2023] SASCA 85 The Court 13 47 Pursuant to s 159(1), the three jurisdictional pre-conditions that must be satisfied are: first, there is evidence that is fresh; second, the evidence is compelling; and third, the evidence should, in the interests of justice, be considered on appeal. The onus lies on the applicant to establish that the pre-conditions to the exercise of the Court’s power to grant permission have been satisfied.12 48 It is evident that s 159 manifests an intention that considerations of finality yield where ‘fresh and compelling evidence’, when considered with the evidence at trial, satisfies the Court of Appeal that there has been a substantial miscarriage of justice. If, following an unsuccessful appeal, fresh and compelling evidence is discovered, the evident intention is that this Court has jurisdiction to remedy any substantial miscarriage of justice.13 The permission requirement is intended to prevent successive meritless applications.14 49 The power to grant permission to appeal a second or subsequent time is contingent upon satisfaction that any one piece of evidence put forward by the applicant to found jurisdiction is fresh and compelling, and it is in the interest of justice to consider it. Thus, jurisdiction under s 159 is further conditioned upon the Court’s satisfaction that it is in the interests of justice that the fresh and compelling evidence be considered on appeal.15 Evidence other than the fresh evidence relied on by the applicant, coming to light independently of the trial, may bear on the question of the interests of justice.16 Moreover, whether it is in the interests of justice to consider the fresh evidence is informed by the notion of a substantial miscarriage of justice.17 50 There are three stages that must be addressed and established by an applicant before a second or subsequent appeal will be allowed under s 159 of the CPA: 1. The Court of Appeal must find that the jurisdictional pre-conditions in s 159(1) have all been satisfied: namely that there is ‘fresh and compelling evidence’ that should, in the ‘interests of justice’, be considered on the second or subsequent appeal. 2. Under s 159(2), the Court of Appeal must grant permission to appeal. 3. Under s 159(3), the Court of Appeal may allow the appeal where there was a ‘substantial miscarriage of justice’ resulting from the conviction. 12 Roberts v The Queen (2020) 60 VR 431 at [45] per Osborn and T Forrest JJA and Taylor AJA. 13 Van Beelen v The Queen (2017) 262 CLR 565 at [27] per Bell, Gageler, Keane, Nettle and Edelman JJ. 14 Van Beelen v The Queen (2017) 262 CLR 565 at [27] per Bell, Gageler, Keane, Nettle and Edelman JJ; Roberts v The Queen (2020) 60 VR 431 at [41] per Osborn and T Forrest K JJA and Taylor AJA. 15 Van Beelen v The Queen (2017) 262 CLR 565 at [30] per Bell, Gageler, Keane, Nettle and Edelman JJ. 16 Roberts v The Queen (2020) 60 VR 431 at [49] per Osborn and T Forrest JJA and Taylor AJA. 17 Roberts v The Queen (2020) 60 VR 431 at [50] per Osborn and T Forrest JJA and Taylor AJA, citing Baini v The Queen (2012) 246 CLR 469 at [25]-[26] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. -- 17 of 67 -- [2023] SASCA 85 The Court 14 51 In the present case, this Court proceeded on the basis that these three stages were to be heard and determined concurrently. The weight of authority does not support the view that it is relevant to consider whether any issue is “reasonably arguable”. 18 Pre-conditions under s 159(1) 52 The term ‘fresh’ is defined by s 159(6)(a) of the CPA. The applicant bears the onus of establishing that: first, the evidence was not adduced at the trial; and second, the evidence could not, even with the exercise of reasonable diligence, have been adduced at the trial. There was no dispute on this application that each of the first three bodies of evidence relating to confessional material was ‘fresh’ in that the evidence was not adduced at the trial of the offence and it could not, even with the exercise of reasonable diligence, have been adduced at the trial. However, in relation to the fourth body of evidence, whilst the respondent conceded that the police did not disclose relevant material to the applicant, the respondent contended that there was sufficient police disclosure such that the relevant material could have been obtained with reasonable diligence. 53 Pursuant to s 159(6), evidence is ‘compelling’ if it is reliable, substantial, and highly probative in the context of the issues in dispute at the trial of the offence. The terms ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen v The Queen19 (‘Van Beelen’) the High Court explained:20 Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words “reliable”, “substantial” and “highly probative” in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly “substantial”. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. 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. (Citations omitted.) 18 See R v Keogh (No 2) (2014) 121 SASR 307 at [86]-[88] per Gray, Sulan and Nicholson JJ where their Honours described the existence of three stages but included the notion of a ‘reasonably arguable’ basis; c.f. R v Drummond (No 2) [2015] SASCFC 82 at [246] per Blue J; Helps v The Queen (No 3) [2021] SASCFC 10 at [34] per Peek J. 19 (2017) 262 CLR 565. 20 Van Beelen v The Queen (2017) 262 CLR 565 at [28] per Bell, Gageler, Keane, Nettle and Edelman JJ. -- 18 of 67 -- [2023] SASCA 85 The Court 15 54 The concept of ‘issues in dispute at trial’ extends to whether the applicant received a fair trial according to law. It is not limited to specific forensic issues.21 55 If this Court is satisfied that there is fresh and compelling evidence, it will proceed to consider whether it is in the interests of justice to consider the fresh and compelling evidence on the second or subsequent appeal. The High Court in Van Beelen recognised that evidence other than fresh evidence relied on by the applicant and coming to light independently of the trial, may be relevant and considered on the question of the interests of justice.22 56 In R v Drummond (No 2),23 Blue J observed that the ‘interests of justice’ criterion may be seen as a ‘filter’ which allows the Court ‘to decline to consider the evidence in special circumstances such as when the application is vexatious or repetitive of a previous application [for a second or subsequent appeal].’24 Substantial miscarriage of justice 57 If the Court is satisfied that the jurisdictional pre-conditions under s 159(1) are satisfied, and permission to appeal is granted under s 159(2), the Court may allow the appeal where it determines that there was a substantial miscarriage of justice. At this stage of the proceedings, evidence that does not qualify as ‘fresh’ evidence within the meaning of s 159 may be considered.25 The parties are entitled to rely on evidence which has come to light since the applicant’s trial, for example, to reinforce or rebut inferences to be drawn from the fresh evidence.26 58 Further, s 159(7) of the CPA provides that evidence is not precluded from being admissible on a second appeal because it would not have been admissible at trial. 59 The High Court in Van Beelen held that the test to be applied when determining whether there has been a substantial miscarriage of justice pursuant to s 159(3) is as enunciated in Mickelberg v The Queen.27 That test requires the Court to consider whether the applicant has established on the balance of probabilities that in light of the fresh and compelling evidence, taken with the evidence adduced at trial, there is a significant possibility that a jury or trier of fact, acting reasonably, 21 Roberts v The Queen (2020) 60 VR 431 at [91] per Osborn and T Forrest JJA and Taylor AJA. 22 Van Beelen v The Queen (2017) 262 CLR 565 at [30] per Bell, Gageler, Keane, Nettle and Edelman JJ; see also Roberts v The Queen (2020) 60 VR 431 at [49] per Osborn and T Forrest JJA and Taylor AJA. 23 [2015] SASCFC 82. 24 R v Drummond (No 2) [2015] SASCFC 82 at [361] per Blue J. 25 R v Keogh (No 2) (2014) 121 SASR 307 at [116], [132], [139], [143] per Gray, Sulan and Nicholson JJ, referring to Ratten v The Queen (1974) 131 CLR 510. 26 Roberts v The Queen [2020] VSCA 277 at [76] per Osborn and T Forrest JJA and Taylor AJA, citing Ratten v The Queen (1974) 131 CLR 510 at 518 per Barwick CJ. 27 Van Beelen v The Queen (2017) 262 CLR 565 at [22] per Bell, Gageler, Keane, Nettle and Edelman JJ, citing Mickelberg v The Queen (1989) 167 CLR 259. -- 19 of 67 -- [2023] SASCA 85 The Court 16 would have acquitted the applicant.28 If a conviction was inevitable, then it is likely that a substantial miscarriage of justice will not have been established.29 60 To overcome a submission that a conviction was inevitable, an applicant need do no more than show that, had the fresh and compelling evidence been before the jury or trier of fact, they may have entertained a doubt as to his or her guilt.30 It follows that there may be a substantial miscarriage of justice even where the totality of the evidence is capable of proving the appellant’s guilt beyond reasonable doubt. Where that is the case, the appropriate course is for the conviction to be quashed and a re-trial ordered. 61 Importantly, a substantial miscarriage of justice is not confined to a question of the applicant’s guilt. In R v Keogh (No 2)31 the Full Court followed the approach articulated by the High Court in Baini v The Queen32 (‘Baini’) as to the meaning of a substantial miscarriage of justice. 62 In Baini the High Court considered the meaning of a substantial miscarriage of justice under ss 274 and 276 of the Criminal Procedure Act 2009 (Vic). The plurality construed the phrase ‘substantial miscarriage of justice’ in the following terms:33 Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms. … The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a “substantial miscarriage of justice” ultimately requires a judgment to be made. (Citations omitted.) 63 The plurality considered that the strength of the prosecution case at trial was relevant to the question of whether there had been a ‘substantial miscarriage of justice’ and said that in some cases:34 28 Van Beelen v The Queen (2017) 262 CLR 565 at [22] per Bell, Gageler, Keane, Nettle and Edelman JJ. 29 R v Keogh (No 2) (2014) 121 SASR 307 at [128] per Gray, Sulan and Nicholson JJ. 30 Baini v The Queen (2012) 246 CLR 469 at [31] per French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ; see also R v Keogh (No 2) (2014) 121 SASR 307 at [127] per Gray, Sulan and Nicholson JJ. 31 (2014) 121 SASR 307. 32 (2012) 246 CLR 469. 33 Baini v The Queen (2012) 246 CLR 469 at [25]-[26] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. 34 Baini v The Queen (2012) 246 CLR 469 at [28] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. -- 20 of 67 -- [2023] SASCA 85 The Court 17 … it may be possible for an appellate court to conclude that there has not been a “substantial miscarriage of justice” because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged. 64 The plurality in Baini made three points about this possibility. 65 First, in many cases an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. That is because the nature of the error or irregularity will prevent that conclusion from being reached by an appellate court on the record of the trial, given the natural limitations that attend the appellate task. 66 Second, the appellate court’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been a substantial miscarriage of justice; while it will not, in every case, be determinative of whether there has been a substantial miscarriage of justice, it is a matter to be taken into account. 67 Third, the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. At least in cases where evidence has wrongly been admitted at trial or where evidence has wrongly been excluded, an appellate court could only be satisfied, on the record of the trial, that an error did not amount to a ‘substantial miscarriage of justice’ if the appellate court concludes from its review of the record that conviction was inevitable. 68 Relevantly to this appeal, the plurality in Baini also considered that the expression ‘substantial miscarriage of justice’ encompasses not only an error which possibly affected the result of the trial but also some departures from trial processes described as ‘serious departures’, whether or not the impact of the departure in issue can be determined.35 69 In relation to the evidence to which an appellate court may have regard on the hearing of a second appeal, in Keogh (No 2) the Full Court said:36 An applicant must first demonstrate that there is jurisdiction to hear a second appeal in accordance with the requirements of s 353A. An applicant will need to demonstrate the existence of evidence that is, inter alia, fresh within the statutory definition strictly applied. However, once jurisdiction is established and provided permission is granted, the appeal is to proceed as a normal appeal against conviction and according to the procedure usually employed to determine appeals from this Court. As such, it will then be open to the Court hearing the second appeal to receive fresh evidence subject to the flexibility, in this respect, available to an appeal court according to and in the manner provided for in Ratten. (Citations omitted.) 35 Baini v The Queen (2012) 246 CLR 469 at [26]-[27] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. 36 R v Keogh (No 2) (2014) 121 SASR 307 at [143] per Gray, Sulan and Nicholson JJ. -- 21 of 67 -- [2023] SASCA 85 The Court 18 70 In Keogh (No 2) the Full Court concluded:37 In summary, it is not possible to succinctly define a substantial miscarriage of justice. However, before a court will conclude that a substantial miscarriage of justice has occurred, it will consider whether, despite the irregularity, be it procedural or substantive, the conviction was inevitable. If a conviction is inevitable, then it is likely that a substantial miscarriage of justice has not been established. The categories of when and how a miscarriage of justice can occur are too numerous to attempt to define. However, they include wrongful admission of evidence, evidence which is flawed in some respect, comments by counsel or the judge which are prejudicial, and statements made which cannot be supported by the evidence. 71 Accordingly, the circumstances in which a substantial miscarriage of justice may be demonstrated include (but are not limited to) cases where fresh evidence establishes that an accused did not receive a fair trial due to a material error or irregularity in the prescribed processes for trial, and where fresh evidence establishes that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial.38 Thus, evidence of a material error or irregularity which constitutes a serious departure from prescribed processes for trial may, of itself, justify a conclusion that there has been a substantial miscarriage of justice. 39 Alternatively, a substantial miscarriage of justice may be established where the court cannot be satisfied that the material irregularity did not make a difference to the outcome of the trial. 72 In Roberts v The Queen,40 the Victorian Court of Appeal considered largely analogous legislative provisions relating to a second or subsequent appeal.41 The case concerned the murder of two police officers and, in particular, whether there were two assailants. In that matter, the fresh and compelling evidence was twofold: first, the non-disclosure of statements made by a police officer, said to have been made only hours after the shooting, as to the dying remarks of one of the murdered police officers, which were in fact materially amended ten months after the shooting; and second, fresh evidence of the broad-ranging manipulation of statements given about the police officer’s dying declarations. 73 In granting leave to appeal, the Victorian Court of Appeal held that the fresh evidence of non-disclosure and manipulation of police statements was compelling; and the concept of ‘issues in dispute at trial’ extended to the underlying question of whether the applicant received a fair trial according to law, rather than being limited to specific forensic issues.42 The Court held that the non-disclosure of relevant material resulted in defence counsel being deprived of significant forensic 37 R v Keough (No 2) (2014) 121 SASR 307 at [128]. 38 Festa v The Queen (2001) 208 CLR 593 at [226] per Hayne J; R v Nylander (2003) 228 LSJS 24 at [46] per Prior, Bleby and Sulan JJ; Roberts v The Queen [2020] VSCA 277 at [19] per Osborn and T Forrest JJA and Taylor AJA. 39 Roberts v The Queen (2020) 60 VR 431 at [53] per Osborn and T Forrest JJA and Taylor AJA, citing Baini v The Queen (2012) 246 CLR 469 at [26] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. 40 (2020) 69 VR 431. 41 Criminal Procedures Act 2009 (Vic) ss 326A, 326D. 42 Roberts v The Queen (2020) 60 VR 431 at [91] per Osborn and T Forrest JJA and Taylor AJA. -- 22 of 67 -- [2023] SASCA 85 The Court 19 choices and at a significant forensic disadvantage at trial.43 In reaching this conclusion, the Court emphasised the observations made in R v Ward44 that it will often be difficult to say whether an undisclosed item of evidence might have shifted the balance of a case or opened up a new line of defence.45 74 Following a subsequent hearing, the Victorian Court of Appeal in Roberts v The Queen46 went on to determine whether there had been a substantial miscarriage of justice. In considering that issue, the Court addressed the question of what it is the appellant must establish to demonstrate a substantial miscarriage of justice. The Court held that irregularity in the appellant’s trial, resulting from the non-disclosure of material evidence to the defence, gave rise to a serious departure from proper processes affecting the fundamental fairness of the trial or, alternatively, it could not be satisfied that the non-disclosure of material evidence did not make a difference to the outcome of the trial.47 75 In reaching this conclusion the Victorian Court of Appeal held that for a procedural irregularity, of itself, to amount to a substantial miscarriage of justice, the departure from the prescribed processes for trial must be fundamental to that trial; it must go to the essence or root of a fair trial according to law. It cannot be a departure of a lesser nature – if it is, it may attract the other relevant test contemplated in Baini which was whether, despite the error or irregularities, the evidence properly admissible required the conclusion that the appellant was guilty. If an error or irregularity occurred and the appellate court cannot be satisfied that the irregularity did not make a difference to the outcome, this will amount to a substantial miscarriage of justice.48 The appeal was allowed and an order was made for a new trial. Section 34KA of the Evidence Act 1929 (SA) and the admissibility of the evidence sought to be relied on by the applicant 76 Before turning to consider the application of s 159 of the CPA, it is necessary to first determine the admissibility of some of the fresh evidence. A central part of the evidence sought to be relied upon by the applicant are statements made by Lagerwey (who is now deceased) to Peterson and EC. They are each purportedly admissions against penal interest, amounting to a confession to the murder of which the applicant was convicted. The applicant also relies on the statement of RC (who is also now deceased) to Huppatz that Lagerwey made several assertions in relation to in the murder of the deceased and about his purported association with the deceased. The hearsay statements of Lagerwey and, in part, RC are sought 43 Roberts v The Queen (2020) 60 VR 431 at [86] per Osborn and T Forrest JJA and Taylor AJA. 44 [1993] 1 WLR 619. 45 Roberts v The Queen (2020) 60 VR 431 at [63] per Osborn and T Forrest JJA and Taylor AJA, citing R v Ward [1993] 1 WLR 619 at 642 per Glidewell, Nolan and Steyn JJ. 46 [2020] VSCA 277. 47 Roberts v The Queen [2020] VSCA 277 at [19] per Osborn and T Forrest JJA and Taylor AJA. 48 Roberts v The Queen [2020] VSCA 277 at [257] per Osborn and T Forrest JJA and Taylor AJA, citing Baini (2012) 246 CLR 469 at [25] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. -- 23 of 67 -- [2023] SASCA 85 The Court 20 to be adduced by the applicant for a testimonial purpose pursuant to s 34KA of the Evidence Act 1929 (SA) (‘the Evidence Act’). 77 While the disposition of the appeal ultimately requires a consideration of how the evidence sought to be adduced applies in relation to s 159 of the CPA, it is first necessary to determine whether this fresh evidence is admissible on the application. 78 Section 34KA provides: 34KA—Admissibility of evidence of out of court statements by unavailable witnesses (1) Subject to this section, in prescribed proceedings, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and (b) the person who made the out of court statement (the relevant person) is identified to the court's satisfaction; and (c) any 1 of the conditions specified in subsection (2) is satisfied. (2) The conditions are as follows: (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of a bodily or mental condition; (c) that the relevant person is outside of the State and it is not reasonably practicable to secure his or her attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the out of court statement, and the court gives leave for the out of court statement to be given in evidence. (3) For the purposes of subsection (2)(e) fear is to be widely construed and includes, for example, fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the out of court statement ought to be admitted in the interests of justice, having regard to— (a) any information (whether or not given in evidence, or of a kind that could be given in evidence) suggesting threats have been made to the witness, whether directly or indirectly; and (b) the statement’s contents; and -- 24 of 67 -- [2023] SASCA 85 The Court 21 (c) any risk that its admission or exclusion will result in unfairness to a defendant in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence and the defendant is not able to cross-examine the person); and (d) any other measures that could be taken by the court in relation to the relevant person; and (e) any other relevant circumstances. (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— (a) by the person in support of whose case it is sought to give the out of court statement in evidence; or (b) by a person acting on his or her behalf, in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the out of court statement). (6) Nothing in this section makes an out of court statement admissible as evidence if it was made by a person who was not competent at the time when he or she made the statement. (7) This section is in addition to, and does not derogate from, any other power of a court to admit an out of court statement into evidence. (8) In this section— prescribed proceedings means— (a) proceedings for a criminal offence; or (b) proceedings under the Serious and Organised Crime (Control) Act 2008 79 Section 34KA renders otherwise inadmissible hearsay evidence admissible ‘as evidence of any matter stated’ subject to three conditions being satisfied. First, that the oral evidence of the out of court statement, if given in the proceedings by the maker of the statement, would be admissible as evidence of that matter. Second, the maker of the statement must be identified. Third, one of the conditions in subsection (2) must be satisfied. 80 Sections 34KA to 34KD came into operation on 17 June 2012. Those legislative provisions apply to ‘prescribed proceedings’ commencing after that date. Relevantly, ‘prescribed proceedings’ include proceedings for a criminal offence. It is accepted by the Director that, in this matter, s 34KA could apply to statements of deceased persons on an application brought under s 159 of the CPA after these provisions commenced operation. 81 The effect of section 34KA in rendering an out of court statement admissible is not unqualified but subject to the statutory discretion to exclude evidence -- 25 of 67 -- [2023] SASCA 85 The Court 22 conferred by s 34KD(1) and the common law discretions to exclude evidence preserved by s 34KD(2). Section 34KD provides: 34KD—Court’s general discretion to exclude evidence (1) In prescribed proceedings the court may refuse to admit a statement as evidence of a matter stated if— (a) the statement was made otherwise than in oral evidence in the proceedings; and (b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. (2) Nothing in this section derogates from any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise). (3) In this section— prescribed proceedings means— (a) proceedings for a criminal offence; or (b) proceedings under the Serious and Organised Crime (Control) Act 2008. 82 As Kourakis CJ explained in R v Haines:49 My initial view was that the statutory discretion conferred by s 34KD is a wide one which encompasses considerations relevant to the common law discretions. However, s 34KD of the Evidence Act mirrors clause 15 of the Criminal Evidence Bill recommended by the English Law Commission Report “Evidence in Criminal Proceedings: Hearsay and Related Topics”. It is apparent from that report that the statutory discretion is designed to prevent the waste of time which was feared might result from the tender of a multitude of written statements of little value. The particular considerations mentioned by s 34KD, waste of time and the value of the evidence, are specific to the admission of statements pursuant to s 34K and s 34KA. However, s 34KD of the Evidence Act preserves the general unfairness discretion and the Christie discretion (prejudicial value exceeds probative value), which are also important. It is the former which is determinative on this application. Plainly enough, the rendering of admissible statements which at common law are inadmissible as rank hearsay, is a fundamental departure from the common law of evidence. It is also a fundamental departure from the common law principle that an accused should be able to test by cross-examination the evidence of witnesses against him or her in open court. The abrogation of those important common law protections by s 34KA of the Evidence Act is not unqualified but is subject to the discretions conferred and preserved by s 34KD of the Evidence Act. The forensic unfairness resulting from the loss of those protections in all of the circumstances of the particular case must be evaluated. The considerations relevant to that exercise include: • The value of the evidence. 49 [2016] SASC 96 at [39]-[40] per Kourakis CJ. -- 26 of 67 -- [2023] SASCA 85 The Court 23 • The significance of the statement to the prosecution case overall. • Whether the statement is supported in material respects by other prosecution evidence. • Whether the statement constitutes a major part of the prosecution case. • The reliability of the evidence that the statement was made. • The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken. • The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement. • Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify. (Citations omitted.) 83 Section 34KA is largely an adoption of s 116 of the Criminal Justice Act 2003 (UK) (‘the Criminal Justice Act’); the Criminal Justice Act is based on the recommendations of the United Kingdom Law Reform Commission Report ‘Evidence in Criminal Proceedings: Hearsay and Related Topics’50 (‘the Law Reform Commission Report and Recommendations’). Thus, in applying s 34KA it is appropriate to have regard to the Law Reform Commission Report and Recommendations, as they are extrinsic materials relevant to the interpretation of the provisions and capable of assisting the Court in ascertaining the meaning of the provision. As White J said in R v Koenig,51 the Law Reform Commission Report and Recommendations ‘form part of the context in which it is to be construed.’52 84 The Director contends that a particular risk that the now abrogated common law principles guarded against was the potential for fabricated confessions. The Director referred to discussion of the potential for fabricated or manufactured confessions in the Law Reform Commission Report and Recommendations.53 Ultimately, the Law Reform Commission took a provisional view that automatic exclusion should be saved for multiple hearsay and hearsay evidence of unidentified witnesses.54 In its final report, the Law Reform Commission again outlined the risks of manufactured confessions and its provisional view. The 50 United Kingdom, Law Commission Consultation Paper No 138, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997). 51 (2013) 229 A Crim R 108. 52 R v Koenig (2013) 229 A Crim R 108 at [202] per White J. 53 United Kingdom, Law Commission Consultation Paper No 138, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997) at [6.11]. 54 United Kingdom, Law Commission Consultation Paper No 138, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997) at [6.15]. -- 27 of 67 -- [2023] SASCA 85 The Court 24 Director contends that, while Parliament intended to modify the rules surrounding the admissibility of unavailable witnesses, s 34KA should not be construed as providing no mechanism to protect against unreliability; the policy underlying the common law protections against manufactured confessions should be recognised as informing the ability of a court to exercise its discretions under s 34KD. 85 There is an overlap in this Court’s consideration of whether to admit the statements of Lagerwey and RC under s 34KA, and the question of whether the evidence is compelling under s 159 of the CPA. At this stage, in considering whether to admit the evidence under s 34KA, it is sufficient to note that the evidence of Peterson and EC as to purported admissions by Lagerwey, and the evidence of Huppatz regarding his conversation with RC as to statements made by Lagerwey are, individually and cumulatively, essential to the applicant’s second appeal. It is also the applicant’s contention that the cogency of the statements of Peterson, EC and RC each draw support from the other. 86 There are, however, several aspects surrounding the circumstances in which each statement was purportedly made by Lagerwey which significantly undermine the reliability of each statement. That is discussed in detail in relation to whether the evidence is compelling under s 159 of the CPA. Briefly, the evidence of Peterson as to Lagerwey’s purported confession is directly contradicted by the evidence of SC and potentially undermined by the circumstances in which it was made and the conduct of Peterson after the statement was allegedly made. The evidence of EC is vague in its detail and imprecise as to the words purportedly used by Lagerwey regarding his involvement in the murder. The evidence of Huppatz as to the statements made by RC as to Lagerwey’s statements concerning the murder involves multiple layers of hearsay. 87 Notwithstanding those matters which undermine the reliability of the evidence, considered in more detail later in the context of the jurisdictional pre-conditions of s 159 of the CPA, we have determined to allow the evidence of Peterson, EC and RC under s 34KA of the Evidence Act for the purpose of this application. Application of statutory criteria to the fresh evidence 88 It is convenient to consider whether the evidence relied on by the applicant is fresh and compelling under the four general categories relating to: (i) Peterson’s evidence as to Lagerwey’s purported confession; (ii) EC’s evidence as to Lagerwey’s purported admission as to his involvement in the murder; (iii) M’s evidence as to his conversation with RC regarding SC’s purported admissions as to the involvement of herself and Lagerwey in the murder; and (iv) the evidence of Huppatz of his conversation with RC, and the failure by police to disclose relevant materials to defence counsel. 89 Whilst each body of evidence fell to be considered as a discrete matter, it is also the case that the reliability of any one body of evidence is potentially capable of drawing strength from the other(s). It would be artificial to view each of the -- 28 of 67 -- [2023] SASCA 85 The Court 25 discrete bodies of evidence in isolation, without having regard to the aggregate effect of the fresh evidence relied upon by the applicant. 90 The respondent contends that none of the first three bodies of evidence is compelling in that the evidence is neither reliable nor substantial. As to the fourth body of evidence, and police non-disclosure, the respondent contends that the relevant material was not fresh, nor of significant forensic value and therefore not substantial, nor highly probative of the issues in dispute at trial. More specifically, the respondent submits that the undisclosed information did not exonerate the applicant; rather, it was consistent with the applicant being the principal offender and Lagerwey having assisted him by disposing of the weapon. Moreover, the respondent contends there has been no substantial miscarriage of justice by reason of police non-disclosure. 91 The first three bodies of material relied upon by the applicant raise the following issues: • whether the evidence is ‘fresh and compelling evidence’ (with an emphasis on whether the evidence is reliable and substantial) and whether it is in the interests of justice to admit the evidence; and if so, • whether, having regard to the fresh evidence considered in the context of the evidence as a whole, the Court considers that there is a significant possibility that the trial Judge, acting reasonably, would have acquitted the applicant had the fresh evidence been before him at trial. 92 The fourth body of evidence raises the following issues: • whether the evidence is ‘fresh and compelling evidence’ and whether it is in the interests of justice to admit the evidence (with a different emphasis on whether the evidence is substantial and highly probative in the context of the issues in dispute at the trial of the offence); and if so, • whether, having regard to the fresh evidence considered in the context of the evidence as a whole, the Court considers that there is a significant possibility that the trial Judge, acting reasonably, would have acquitted the applicant had the fresh evidence been before him at trial, or alternatively, whether the Court can be satisfied that the non-disclosure did not make a difference to the outcome of the trial; and • whether the non-disclosure means that the trial was tainted by such serious irregularity that this, of itself, constitutes a substantial miscarriage of justice. -- 29 of 67 -- [2023] SASCA 85 The Court 26 93 Before considering those issues, it is necessary to outline and address the fresh evidence upon which the applicant relies for the purpose of this application in further detail. Evidence of Peterson as to Lagerwey’s purported deathbed confession Evidence of Peterson 94 In an affidavit sworn on 23 September 2021, Peterson said that he met Lagerwey in 2006 through mutual friends. Peterson was also friendly with the applicant, who he met through Lagerwey at the beginning of 2010. Peterson said that he lost contact with Lagerwey for a period of three or four years from 2011 to 2014; however, his friendship with the applicant continued during that time. In about 2014, Peterson and Lagerwey reconnected and began to meet socially. Peterson said in the first half of 2016, Lagerwey told him that he had been diagnosed with kidney cancer; Lagerwey underwent surgery and was discharged, but was subsequently readmitted to hospital with terminal cancer in late May or early June 2016. 95 In his affidavit, Peterson said that he visited Lagerwey in hospital on 11 July 2016. He said on this occasion Lagerwey’s wife, SC, was present in the room, as well as other persons. Peterson said that Lagerwey asked if he could talk to he and SC alone and, upon doing so, the other people who were present left the room. Peterson said the following conversation between himself and Lagerwey ensued: Lagerwey: I was the one who shot Danny’s uncle. Peterson: are you fucking serious? Lagerwey: yeah, I am the one who murdered his uncle. 96 Peterson said that SC was present for the whole conversation. 97 On the following day, 12 July 2016, Peterson told SC that they needed to do something about the purported confession; he said he insisted, ‘we tell someone’ and that ‘something needs to be done’ to clear the applicant’s name. He said he recalled they had discussions about whether they should see a lawyer or contact police but SC ‘flip-flopped’ between doing the ‘right thing’ and not wanting to have anything to do with it. Peterson said that later that evening, Lagerwey was placed into comfort care and induced into a medical coma. He died shortly after, on 13 July 2016. 98 In his affidavit, Peterson said that soon after Lagerwey died, he contacted the applicant in custody and told him that Lagerwey had passed away and that he had important news to tell him. He said he visited the applicant in prison two or three months later and told him that Lagerwey had confessed to the murder. Peterson said the applicant told him to see his solicitor, Stacey Carter. He attended upon Ms Carter at her office and provided her with the same information. Peterson said -- 30 of 67 -- [2023] SASCA 85 The Court 27 that sometime in 2018, the applicant’s legal representation changed, and he provided a further statement to a new solicitor, Chloe Kourakis, on 26 March 2018. 99 In a further affidavit sworn on 12 May 2022, Peterson explained that he met the applicant through Lagerwey but stopped having any contact with Lagerwey because of his drug addiction and erratic behaviour. He said he remained close to the applicant and, indeed, was present at court when the trial Judge delivered the guilty verdict. Peterson said that after the applicant was remanded in custody and serving a sentence in Port Augusta Prison, they spoke regularly by telephone, and he would travel to visit him. 100 In relation to the purported confession, Peterson said that at the time Lagerwey made his confession, he was very unwell but coherent. Peterson clarified that Lagerwey confessed to having committed the murder about two or three days before he died. Peterson said that after doing so, Lagerwey deteriorated very quickly; he had not expected him to die so suddenly and thought he had more time to work out what to do. 101 Peterson said he spoke to his former solicitor, Eugene McGee, ‘pretty soon’ after Lagerwey died. He said, ‘I think it would have been within weeks of Peter’s death’. He said he went to see Mr McGee (with SC) before he saw the applicant in prison to inform him of the confession. Peterson said that after he went to see Mr McGee, SC did not want to do anything about the purported confession and had become difficult to contact. Peterson said the applicant then told him to go and see his solicitor, Ms Carter. He said he gave Ms Carter a statement about what had happened, but nothing eventuated. He then went to visit the applicant a few more times in prison, and eventually the applicant told him to go and see Ms Kourakis, which he did. Peterson said the applicant then told him to go and see his new legal representative, Yasmin McMahon, which he did. 102 In a third affidavit sworn on 4 July 2022, the applicant confirmed that he had been shown the affidavit of Ms Marie Badman dated 13 February 2022; the affidavit of SC dated 30 May 2022; the statement of Professor Jason White dated 7 May 2022; and a diary entry of Mr McGee dated 10 November 2016. 103 Peterson said that Lagerwey did not, on any occasion at the hospital, say that he could make up a story that it was he who killed the deceased. Peterson said the only time Lagerwey spoke of the murder of the deceased in his presence was when he confessed to having committed it. Peterson confirmed that there was no one else in the room at the time of the purported confession except SC and himself. He denied that he tried to video record Lagerwey saying he murdered the deceased. 104 Peterson said there was nothing about Lagerwey’s demeanour, at the time of his purported confession, which made him think he was hallucinating or making things up. -- 31 of 67 -- [2023] SASCA 85 The Court 28 105 The applicant called Peterson to give evidence at the appeal hearing. Peterson confirmed that the first action he took after the purported confession was to see Mr McGee in November 2016. He agreed that must have occurred some four months after Lagerwey’s death by reference to the diary entry of Mr McGee. Peterson accepted that he did not tell the applicant about the purported confession, in the period between Lagerwey’s death and speaking to Mr McGee, despite being in contact with him. Peterson claimed that he delayed telling the applicant about Lagerwey’s confession because he wanted to seek legal advice and, to some extent, because he was in shock. He could not articulate what legal advice he was seeking about the confession, other than whether it was going to be of any use to the applicant. 106 In relation to the fact that he took SC with him to see Mr McGee and did not approach anyone, including his lawyer, about the issue on his own, he was unable to explain why this was so except that in his view ‘they would take her statement more importantly than mine’, because SC was Lagerwey’s wife. 107 In relation to Lagerwey’s health, Peterson accepted that he deteriorated in the last day or two. In evidence, Peterson said that Lagerwey made the purported confession about ‘three, maybe four days’ before his death. This was inconsistent with his earlier affidavits, and inconsistent with his statement to Ms Kourakis, which was unsigned, but which he accepted he made on 26 March 2018. Evidence of Mr Eugene McGee 108 In an affidavit sworn on 23 March 2022, Mr McGee said that he had been unable to find a file note regarding any contact with Peterson. He was able to say that he acted for Peterson several times on unrelated matters. He said that at some time after the deceased was murdered, Peterson attended at his office with a female. Mr McGee said Peterson told him he was seeking advice connected to the murder of the deceased and mentioned that Lagerwey was connected to the murder. Mr McGee said that he told Peterson that he was unable to assist him as he had previously acted for both the deceased and Lagerwey and therefore had a conflict. 109 In a subsequent affidavit sworn on 15 July 2022, Mr McGee said that having checked his appointment diary for 2016, the only appointment in the name of Peterson was on Thursday, 10 November 2016. He had no other miscellaneous notes. 110 Mr McGee believed his conversation with Peterson occurred either in his office or in his conference room, and a female was present when he spoke to him. He said he has no recollection of providing any separate advice to the female or being alone with her. 111 In evidence, Mr McGee agreed that he had ‘sketchy’ memories of his interaction with Peterson and a female in November 2016. He accepted that as soon as the deceased’s name was mentioned he knew he was unable to give any -- 32 of 67 -- [2023] SASCA 85 The Court 29 legal advice to Peterson. He said, however, that if the female had told him of a ‘plot’ being formed to exonerate the applicant, he expected he would recall it and he did not recall any such conversation. 112 In response, the Director called evidence from Marie Badman (Lagerwey’s mother). In cross-examination, Ms Badman outlined that she had experienced a lot of trauma since losing her son, including what she described as a nervous breakdown. She said that her son never told her he was involved in the murder of the deceased, but she recalled an occasion when he told her that his friend, Danny, had done something ‘really, really bad’ and ‘was in a lot of trouble.’ She denied that her son was ‘confessing things’ in hospital during the days before he died; and denied he was ‘praying a lot the last week of his life’ but accepted there was one occasion when they prayed together. 113 Ms Badman said that her son was basically unconscious and very heavily medicated during the last few days of his life. Evidence of SC 114 The respondent also called evidence from SC, the wife of Lagerwey. 115 In an affidavit sworn on 30 May 2022, SC said Lagerwey was diagnosed with cancer on 11 March 2016. There was no dispute that he died on 13 July 2016. SC said that on Tuesday, 12 July 2016, Lagerwey was sitting on his bed in hospital with a number of other people present in the room, including Peterson. She said Lagerwey randomly said, ‘[o]h my god. I could say I did the murder. I’m dying now. I could get Danny out of prison.’ She said that a short time later, Lagerwey was ‘freaking out because he couldn’t breathe.’ The other people left the room and doctors came and spoke to her in the hallway. She asked the doctors to sedate Lagerwey because he was really upset and punching himself in the head. From that point, he was sedated and there was no further conversation with him about the murder. 116 SC said that Peterson came back to the hospital later on Tuesday night and found Lagerwey sedated; he was upset as he wanted Lagerwey to video record a statement that he had murdered the deceased so the applicant could be released from prison. SC said she told Peterson his behaviour was inappropriate. 117 SC said that on several occasions after Lagerwey died, Peterson raised the topic of Lagerwey’s comments that he could say he ‘did the murder’. She said she responded by saying she was not comfortable having anything to do with it because ‘it was not right.’ 118 SC said that she did not want any contact with police over something that was not true. 119 SC said that a couple of months after Lagerwey died, and due to Peterson’s persistence, she agreed to go and see a lawyer. She said she did so as she wanted -- 33 of 67 -- [2023] SASCA 85 The Court 30 the lawyer to tell Peterson that his plan was irrational in the hope that he would ‘drop it’. She said they saw Mr McGee. She said Peterson spoke with Mr McGee first, and then she separately told Mr McGee her version when Peterson was not in the room. SC said Mr McGee told her Peterson’s plan was ‘just crazy’ and that he did not think anything would come of it but, if it did, she could just say nothing and contact a lawyer. SC said that Mr McGee told her that he could not act for her because he had a conflict of interest. She said they were not charged a fee for the consultation. 120 SC said Peterson later asked her to speak to the applicant’s lawyer about Lagerwey’s comments and, whilst she initially agreed, she later changed her mind and declined to do so. 121 SC gave evidence at the appeal hearing. In relation to the purported hospital confession, she said that Lagerwey did not confess to the murder of the deceased in the days before he died. She accepted that Peterson visited Lagerwey in hospital during that time, and that they had been good friends for many years and would see each other socially. However, SC said that if Lagerwey had confessed to having murdered the deceased, she would ‘speak up.’ Evidence of Professor Jason White 122 The Director also relies on the statement of Professor Jason White dated 7 May 2022 as to the medications administered to Lagerwey in hospital from 3 July to 13 July 2016, and their potential effect on his cognitive functioning and health. The purpose of adducing this evidence was to challenge the assertion that Lagerwey made a purported confession, and the reliability of any such utterance. 123 For the purpose of his opinion, Professor White was provided with the medical notes and records of Lagerwey’s final hospital admission. The records indicated that Lagerwey was administered a combination of medications which, according to Professor White, had the potential to adversely affect his mental state and behaviour. 124 The medical records indicated that from 3 July to 11 July 2016, Lagerwey was administered oxycodone in doses ranging from 60 milligrams to 120 milligrams per day. He was administered slow release oxycodone, in combination with naloxone. The addition of naloxone is designed to reduce the constipation commonly induced by opioid drugs. Professor White explained that for a person not accustomed to taking opioids, the effects of the drug are sedative in nature and include drowsiness, difficulty concentrating and reduced sensitivity to pain. Oxycodone can also produce impaired movement and cognitive functioning, similar to the effects often observed in a person with a very high level of fatigue. 125 Diazepam was administered to Lagerwey on most days from 3 July to 11 July 2016 in doses ranging from five milligrams to 20 milligrams. Professor White said that low doses of benzodiazepines commonly produce a mild degree of -- 34 of 67 -- [2023] SASCA 85 The Court 31 cognitive impairment such that a person may experience difficulties thinking clearly and have greater difficulty with memory recall. A person may also be slow to react to events as they occur. He said that higher doses of benzodiazepine consumption may produce sedation ranging from sleepiness to a drunken-like state with slurred speech and staggered gait, to ultimately inducing a coma. An affected person may have little concern for what is happening to him or her or what is happening in his or her immediate environment and experience confused, sometimes irrational thinking and disinhibition. 126 The medical records showed that Lagerwey was also administered phenobarbitone on 12 and 13 July 2016, which Professor White said has similar effects on a person as benzodiazepines. 127 The medical records indicated that Lagerwey was administered one milligram of haloperidol on 11 July 2016 and two, one milligram doses the next day, followed by an infusion of the drug. Professor White indicated that haloperidol is an antipsychotic drug used for the treatment of psychotic disorders such as schizophrenia, and for the treatment of mania and persistent nausea associated with cancer chemotherapy or radiotherapy. It can also be used, short term, as a general calming agent for people who are severely anxious or agitated. 128 The medical records showed that Lagerwey was administered levomepromazine on 12 and 13 July 2016. Professor White said that levomepromazine is an antipsychotic drug used mainly in palliative care for its calming and sedative effects. He said it can cause drowsiness but does not necessarily induce sleep. An affected person may appear unresponsive to events occurring to him or her, or to events occurring in his or her environment. 129 The focus of the parties’ submissions in relation to the evidence of Professor White related to the three or four days immediately preceding Lagerwey’s death, when Peterson said Lagerwey made his purported confession to the murder of the deceased. 130 Relevantly, Professor White noted that on 9 July 2016, Lagerwey was administered three, 20 milligram doses of oxycodone between 12:30am and 9:17pm. This was a decrease in the dose of oxycodone administered on previous days. Professor White considered that the sedative effect of the drug would have been relatively mild. If he was experiencing a mild degree of opioid withdrawal, his symptoms could have included insomnia, nausea, diarrhoea, increased pain, and depressed mood. Professor White noted that clonazepam was administered once, at 3:47am, at a dose of 0.4 milligrams, which he considered was almost certainly given to induce sleep. 131 On 10 July 2016, Lagerwey was administered three, 20 milligram doses of oxycodone at 1:24am, 6:08am, and 11:31pm. Professor White said that this would have had a mild sedative effect. A relatively small five milligram dose of diazepam was administered at 1:23am and a 0.4 milligram dose of clonazepam was -- 35 of 67 -- [2023] SASCA 85 The Court 32 administered twice at 2:16am and 11:32pm. Professor White considered that the diazepam and clonazepam doses were given to induce sleep. 132 On 11 July 2016, Lagerwey was administered a total of 100 milligrams of oxycodone over the day, comprising five, 20 milligram doses between 6:43am and 6:13pm. Professor White explained that the effect of the oxycodone would have increased over the course of the day and into the evening; by this stage, if Lagerwey had experienced any withdrawal symptoms, they would have ceased, and some degree of sedation could be expected. Again, clonazepam was administered in two, 0.4 milligram doses at 1:06pm and 6:12pm, which would have produced an additional sedative effect, likely inducing drowsiness and possibly sleep. Professor White noted that haloperidol was administered as a one milligram dose at 9:44pm and, by itself, this dose would have produced only mild sedative effects. However, Professor White considered that in the context of the effects of oxycodone and clonazepam, it would have had a further sedative effect. 133 On 12 July 2016, the doses of the various drugs previously administered to Lagerwey were increased, particularly in the afternoon and evening when infusions of several drugs were commenced. A phenobarbitone infusion was commenced at 3:16pm and infusions of haloperidol, midazolam and oxycodone were commenced at 5:08pm, 5:09pm and 5:11pm, respectively. 134 Prior to the infusions, the deceased was administered oxycodone in the form of four, 20 milligram oral doses and one, 10 milligram subcutaneous dose; two, five milligram doses of diazepam; eight doses of clonazepam; two, one milligram doses of haloperidol; and two, 200 milligram doses of phenobarbitones. At 7:56pm, a single levomepromazine dose of 50 milligrams was administered subcutaneously. This is a relatively high dose and would be expected to produce strong sedative effects. 135 Professor White said that he expected Lagerwey would have become progressively drowsy over the day and likely unconscious late in the day on 12 July 2016. 136 On 13 July 2016, an anaesthetic and analgesic agent, ketamine, was given by injection. Professor White expected that Lagerwey would have been unconscious for much, if not all, of the day, up to the time of his death at 9:15pm. Was the evidence of Peterson fresh and compelling? 137 In relation to Peterson’s evidence as to Lagerwey’s purported hospital confession, it is common ground that the evidence is fresh in that it concerned events which occurred after the applicant’s trial, conviction and first appeal. There is no dispute that the evidence was not adduced at the trial of the offence; and that it could not, even with the exercise of reasonable diligence, have been adduced at the trial, given the purported confession took place in July 2016. -- 36 of 67 -- [2023] SASCA 85 The Court 33 138 As discussed earlier, for fresh evidence to be compelling, the Court must be satisfied that the evidence is reliable, substantial, and highly probative in the context of the issues in dispute at the trial of the offence. The jurisdiction of this Court to hear a second appeal is also predicated on the applicant establishing that it is in the interests of justice to consider the fresh and compelling evidence on appeal. 139 In relation to the requirement that evidence be reliable, the Full Court in Keogh (No 2), said:55 The requirement of reliability directs attention to the quality of the evidence itself and the person or means, documentary or otherwise, through or by which the evidence is adduced. It calls for a judgment of the type that judicial officers confront on an almost daily basis, that is, whether the evidence is sufficiently trustworthy or accurate such that it provides the Court with a sound basis, when considered together with other evidence as necessary, for drawing conclusions. 140 The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact-finding.56 141 The applicant submits that the evidence is reliable by reason of the circumstances in which Lagerwey confessed to the murder. According to Peterson, Lagerwey was Catholic and praying every night before he died such that it may be inferred that his confession was ‘an attempt to atone for his sins.’ Further, the applicant submits that it is unlikely SC would have accompanied Peterson to see Mr McGee if the confession was fabricated. 142 The applicant also submits that the cogency of Peterson’s evidence draws support from all of the fresh evidence, and the evidence adduced at trial, which bolsters the reliability of Peterson’s evidence of Lagerwey’s purported confession. The applicant submits that the fresh evidence adduced on this appeal (and the evidence adduced as part of the trial) establishes that Lagerwey: • made admissions to EC and RC as to his involvement in the murder; • had a drug-related association with the deceased and was in possession of a large quantity of methylamphetamine taken from the Cavan premises when he was killed; • had the opportunity to commit the offence between 12:14am (when the applicant left the Cavan premises) and around 12:56am; or sometime after 2:40am. • lied during his interview with police when he said that he lost his second phone (from which he contacted SC at a time when Lagerwey said he was home with her); and when he said the applicant attended at his 55 R v Keogh (No 2) (2014) 121 SASR 307 at [105] per Gray, Sulan and Nicholson JJ. 56 Van Beelen v The Queen (2017) 262 CLR 565 at [28] per Bell, Gageler, Keane, Nettle and Edelman JJ. -- 37 of 67 -- [2023] SASCA 85 The Court 34 house at about 11pm, which was in fact two hours earlier than he actually did; and • had a criminal history including a prior conviction for drug trafficking. 143 In relation to the contradictory evidence of SC, the applicant submits that material aspects of her evidence are undermined by Mr McGee’s evidence that he has no recollection of speaking with a female separately, or being alone with her, or the female saying the confession was a lie which, had that been said, he expected he would remember because of the nature of what was being said (namely, that a ‘plot’ was being formed). The applicant also submits that Peterson would not have continued to try to convince SC to provide a statement to the applicant’s lawyers if she had told him, or Mr McGee, that she was not going to go along with it, or if Mr McGee had in fact told SC the plan was ‘just crazy’. 144 Finally, the applicant emphasises that SC did not tell the Court the complete truth during her initial testimony as to her observations of methylamphetamine and a pistol in her kitchen on the morning of 25 November 2009. 145 For the reasons that follow, we are not satisfied that Peterson’s evidence that Lagerwey confessed to the murder is reliable. 146 First, the evidence is in direct conflict with the evidence of SC who, on Peterson’s account, was the only other person in the room when the purported confession was made. Indeed, SC gave evidence that Lagerwey’s utterance was in fact to the effect that he could falsely confess to the murder given he was about to die. Whilst SC was not initially completely frank with police, or with the Court, as to her observations as to methylamphetamine and a pistol in her kitchen, we consider that her reluctance to provide that information is explained by her distrust of police by reason of her family history, and that initially she did not need to provide that information to give her evidence as to what took place in the hospital room, or in relation to her subsequent dealings with Peterson. 147 Second, Peterson’s account was not consistent as to the timing of the purported confession and it is likely that the physical and mental condition of Lagerwey was poor at the time of his purported confession. In evidence, Peterson said that Lagerwey made his purported confession three or four days before his death, that being on 9 or 10 July 2016. Yet, in an earlier statement to Ms Kourakis, he said it took place on 11 July 2016, that being two days before Lagerwey’s death. Further, Peterson, in his original affidavit sworn on 23 September 2021, said the purported confession took place on 11 July 2016. He conceded in evidence that he had seen the declaration of Professor White before giving evidence. Whilst it was not directly put to Peterson that he changed his version because of Professor White’s statement, the fact remained that his evidence changed on the topic of when Lagerwey made his purported confession. -- 38 of 67 -- [2023] SASCA 85 The Court 35 148 It is relevant that during the days preceding his death on 13 July 2016, Lagerwey was progressively administered an increasing combination of therapeutic drugs with the capacity to have a sedative effect on him and adversely affect his cognitive abilities. Ms Badman gave evidence that in the last few days of his life, her son was largely unconscious and heavily medicated, and he could hardly string two words together because he could not breathe. Lagerwey’s deteriorating health in the days preceding his death, combined with the adverse effects of the drugs administered to him, undermines the reliability of any utterances he may have made. 149 Third, there was no detail in the purported confession from which the Court may draw some confidence as to its cogency. According to Peterson, Lagerwey’s statement consisted of the bald assertion that he had committed the murder with nothing more said as to the circumstances or mechanism by which he allegedly carried out the murder from which the reliability of his purported confession could be measured or evaluated. 150 Fourth, the reliability of Peterson’s evidence as to the purported confession is undermined by his conduct after Lagerwey’s death. After allegedly being told of the purported confession he did not contact police, nor did he immediately contact a solicitor or the applicant. Rather, he waited for about four months before speaking with anyone (other than SC) about it. Furthermore, Peterson provided no cogent explanation for his delay. 151 Fifth, we have considered the applicant’s submissions that the reliability of Peterson’s evidence must be considered by reference to all of the fresh evidence. However, for reasons discussed later, we consider the evidence of both EC and M unreliable, and we do not consider that the ‘coincidence’ of their deposing to Lagerwey’s involvement in the murder in any way adds to the reliability of Peterson’s evidence. There is no cohesion or consistency in the accounts of Peterson, EC and M from which the ‘coincidence’ of the three purported conversations having occurred could be used to support a conclusion that each conversation occurred. 152 Nor do we consider that the other fresh evidence generally bolsters the reliability of Peterson’s evidence as to the purported confession. In relation to EC, the effect of her evidence was that Lagerwey said he was ‘involved’ in a murder by disposing of the weapon. Her evidence as to Lagerwey having said he committed the murder was vague and rested on her impression of what he said, rather than any account as to the actual words he used. M’s evidence was to the effect that RC said that SC said that both Lagerwey and SC were present when the deceased was killed, and it was SC who accidentally discharged the firearm. Huppatz’s notes of his conversation with RC were to the effect that RC said Lagerwey told him the applicant was the person who shot the deceased. It is evident that the fresh evidence from M and Huppatz involve multiple layers of hearsay and does not directly inculpate Lagerwey as the principal offender or the -- 39 of 67 -- [2023] SASCA 85 The Court 36 person who shot the deceased. The reliability of Peterson’s evidence draws no support from the other fresh evidence. 153 As to the criterion of substantiality, it requires that the fresh evidence ‘is of real significance or importance with respect to the matter it is tendered to prove.’57 As the Full Court said in Keogh (No 2):58 The word “substantial” should be given its ordinary meaning. It denotes being of sufficient importance, worth or value. Substantial is a qualitative, not quantitative, notion for the purpose of s 353A(6)(b). Evidence will be substantial, that is, of substance, if it merits being accorded weight as part of the consideration of the issue to which it relates. It may be that, in many cases, the requirement of substantial will add little. If evidence is seen to be reliable and highly probative in the context of the issues in dispute at trial, it is unlikely that it would be characterised as not substantial. 154 It is to be accepted that Peterson’s evidence of Lagerwey’s purported confession to the murder is directly relevant to the issue of identity. However, the evidence does not provide any detail as to the manner in which Lagerwey purportedly murdered the deceased which would explain, or contradict, the inculpatory evidence relating to the applicant’s movements at the time of the deceased’s murder, his lies (relevant to his credibility), or the evidence as to the sensor lights not being activated after the applicant left the premises. To that extent, even if we were satisfied that Peterson’s evidence was reliable, we would not be satisfied that the evidence is substantial given its vague content in that it is not of real significance or importance with respect to the matter it is tendered to prove, namely that there was a reasonable possibility that another person (Lagerwey) committed the murder. 155 In relation to the requirement that the evidence be highly probative in the context of the issues in dispute at trial, the Full Court in Keogh (No 2) said that it:59 … directs attention to the relationship between the evidence adduced on the application for permission and the issues in dispute at trial. Whether evidence is probative will depend on what is to be proved and whether the evidence in question has the ability to affect rational persuasion about what is to be proved. … … evidence will be highly probative within the meaning of s 353A(6)(b)(iii) if it has a real or material bearing on the determination of a fact in issue which, in turn, may rationally affect the ultimate issue in a case. … … para (iii) does not require the evidence in question to be highly probative of, or with respect to, the issues in dispute at trial but, rather, to be highly probative “in the context of” those issues. This allows for a more expansive understanding of the qualification, but one 57 Van Beelen v The Queen (2017) 262 CLR 565 at [28] per Bell, Gageler, Keane, Nettle and Edelman JJ. 58 R v Keogh (No 2) (2014) 121 SASR 307 at [106] per Gray, Sulan and Nicholson JJ. 59 R v Keogh (No 2) (2014) 121 SASR 307 at [107]-[112] per Gray, Sulan and Nicholson JJ. -- 40 of 67 -- [2023] SASCA 85 The Court 37 which can only be applied having regard to the facts and circumstances of a particular case as it has been prosecuted and defended. 156 The earlier findings that the fresh evidence of Peterson is neither reliable nor substantial inform the probity of the evidence in the context of the issues in dispute at the trial. It is to be accepted that the identity of the offender was the central issue in dispute at trial, and the fresh evidence of Lagerwey’s purported confession that he killed the deceased, on its face, appears to have a real or material bearing on the determination of a fact in issue which, in turn, may rationally affect the ultimate issue in the case. However, the fact that the purported confession is neither reliable nor substantial undermines the scope for a finding that the fresh evidence is highly probative in the context of the issues in dispute at the trial. 157 Accordingly, we are not satisfied that the fresh evidence of Peterson as to Lagerwey’s purported confession is compelling. It is therefore not necessary to consider whether this Court is satisfied that it is in the interests of justice to admit the evidence. Evidence of EC as to the purported admission of Lagerwey that he was ‘involved’ in a murder 158 The applicant also relies on the fresh evidence of EC that Lagerwey admitted he was involved in, or committed, the murder of the deceased. It is necessary to first set out the evidence of EC. Evidence of EC 159 In an affidavit sworn on 9 August 2021, EC said there was an occasion, not long after the murder of the deceased, when SC and Lagerwey arrived at her mother’s premises with a news article about the murder. She said they were worried and anxious whilst reading the article. 160 EC said there was another occasion when she went for a drive with SC and Lagerwey. She was sitting in the back seat, whilst SC was seated in the front passenger seat and Lagerwey was driving the vehicle. She said they drove up Gorge Road and, when they were about to reach a small clearing on the left hand side of the road, Lagerwey said words to the effect, ‘I was involved in a murder, and this is where I got rid of the murder weapon.’ EC said that Lagerwey gestured towards the left-hand side of the vehicle as if to indicate that he threw or buried the weapon on the left-hand side of the road. 161 In evidence, EC clarified her statement that Lagerwey said words to the effect of, ‘I was involved in a murder’ in the following terms: Q … You’ve said there in your affidavit that Peter said words to the effect that ‘I was involved in a murder’, is that accurate. A I wouldn’t be able to say exactly how he said it, but along those lines. Like, I knew what he meant, like, he said it, yeah. -- 41 of 67 -- [2023] SASCA 85 The Court 38 Q ‘Involved in a murder’ in the sense that he got rid of the gun. A Yep. Q As opposed to committing a murder. A More in a way of that he had done it, not in – not as if, like, he had helped, but as in, like, he had played a part where he had done it.60 Q What did he say. A I wouldn't be able to remember the exact word-for-word, but it was in, like, a boastful kind of way. Q Does that appear anywhere in this affidavit. A No. … Q He just said that he was involved in a murder. A Yeah, and that is where the weapon had been - they had got rid of the weapon. Q So the words you really remember are the words he was 'involved in a murder'.61 A Yes.62 162 EC could not be any more specific as to the words used by Lagerwey or the content of the conversation. Evidence of SC 163 In response, the Director called evidence from SC, who was said to have been present at the time of the purported admission by Lagerwey to EC. SC said that she cannot recall any occasion when she was driving with Lagerwey and EC and the topic of the murder of the deceased was raised. She said she would not speak of such matters in the presence of her sister and would not have let Lagerwey speak of such matters had he raised the topic of murder. 164 It was common ground that the evidence of EC was fresh; however, the Director contends that the evidence relating to Lagerwey’s purported admission to EC is not compelling in relation to the first two limbs of s 159(6); that is, the evidence is neither reliable nor substantial. 165 We are not satisfied that the fresh evidence of EC is reliable for the following reasons. 60 Emphasis added. 61 Emphasis added. 62 Emphasis added. -- 42 of 67 -- [2023] SASCA 85 The Court 39 166 First, EC’s account of Lagerwey’s statement was vague and lacking in detail. EC only recalled that Lagerwey said he was ‘involved’ in a murder; she could not recall any of the words used to describe his level of involvement.63 Nor could she recount what it was he said he did, nor how he participated in the murder, except to say he indicated by his actions that he disposed of the weapon. Whilst EC said that Lagerwey’s comment was ‘[m]ore in a way of that he had done it, not in – not as if, like, he had helped, but as in, like, he had played a part where he had done it’;64 she could not recall the basis upon which she was left with this impression or why she reached this conclusion. 167 Second, the purported conversation took place shortly after the alleged murder, that is about 15 years before EC gave evidence at the appeal hearing. The passage of time has necessarily had an adverse effect on EC’s ability to recount the comments by Lagerwey and the circumstances in which they were made with any precision. 168 Third, EC said SC was present for the conversation, yet SC had no recollection of Lagerwey having made any such comments in the presence of EC. SC’s evidence tends to undermine EC’s account. 169 Moreover, for the reasons articulated earlier, we do not consider that the reliability of EC’s evidence that Lagerwey’s comment was to the effect that ‘like, he had played a part where he had done it’ draws any support from the other fresh evidence. 170 Accordingly, we are not satisfied that the evidence of EC is reliable in that it does not provide a credible or trustworthy basis for fact-finding.65 171 Given the vague and imprecise nature of the evidence, we are also not satisfied that the applicant has established that the evidence is substantial or of ‘real significance or importance with respect to the matter it is tendered to prove’,66 namely the identity of the offender. 172 As to the requirement that the evidence be highly probative in the context of the issues in dispute at the trial, given that the evidence is neither reliable nor substantial, we are not satisfied this third pre-condition in s 159(6) is met. 173 For those reasons, we do not consider the evidence of EC is compelling. 63 The necessity for evidence of the words, or their effect, used has been emphasised; see for example, Hamilton-Smith v George (2006) 247 FCR 238, [79]-[83] (Besanko J) and Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, [120]-[129] (Jackman J). 64 Emphasis added. 65 Van Beelen v The Queen (2017) 262 CLR 565 at [28] per Bell, Gageler, Keane, Nettle and Edelman JJ, citing R v Keogh (No 2) (2014) 121 SASR 307 at [105] per Gray, Sulan and Nicholson JJ; R v Drummond (No 2) [2015] SASCFC 82 at [325] per Blue J. 66 Van Beelen v The Queen (2017) 262 CLR 565 at [28] per Bell, Gageler, Keane, Nettle and Edelman JJ. -- 43 of 67 -- [2023] SASCA 85 The Court 40 Evidence of M as to his conversation with RC in relation to the involvement of Lagerwey and SC in the murder 174 The applicant contends that the evidence of M was not adduced for the truth of the facts asserted therein. Rather, it was adduced to establish: • the significance of police non-disclosure, as it deprived the applicant of the opportunity to carry out investigations into SC and Lagerwey and put forward a different line of defence which focused on the reasonable possibility that Lagerwey was the offender; and • that the police failed to adequately investigate Lagerwey and SC because they were entirely focused on the applicant. 175 In an affidavit sworn on 29 August 2022, M spoke of a conversation he had with RC. It was common ground at the appeal hearing that RC and M were both in custody at Yatala Labour Prison in B Division from 1 October to 1 November 2011. M said that he and RC were talking about murderers in general when RC said, ‘I’ll tell you something that will spin you out’. He said that his daughter (SC) had come to see him for help. M did not know whether RC meant she visited him in custody, but he did not think so because RC did not receive many visitors. M said RC then said that SC told him: • she had been ‘involved in a murder’ with ‘a bloke’ and it was the one where the guy had ‘got knocked at the workshop in Cavan’; • the two of them had gone there to ‘do a deal’; • the deal had progressed to them standing over the bloke to rip him off; • SC was handed the gun to keep watch over the bloke and, as she was standing over him, the gun had gone off by accident; and • the deal was over ‘pot’ not ‘meth’. 176 In his affidavit, M said that RC had said he was concerned his daughter ‘was going to get charged or something’ but that ‘some other bloke has worn it’. M said he took that to mean someone else had already gone to gaol. He asked RC whether the other person involved with SC had been convicted of the offence, to which RC responded, ‘[n]o. The people involved hadn’t been charged. Not even looked at’ and ‘someone else not involved had already worn it’ and ‘it was already done with.’67 177 M said that his conversation with RC lasted only a few minutes and RC told him clearly that it was his daughter who shot the deceased. M said that when he 67 Emphasis added. -- 44 of 67 -- [2023] SASCA 85 The Court 41 saw the media reports of this appeal hearing, he contacted the applicant’s legal representatives. 178 In evidence, M was cross-examined as to his evidence that RC told him that a man had ‘already worn it.’ This statement was significant in the context of the timing of the conversation. The applicant’s trial proceeded from 7 to 18 November 2011, with the verdict delivered on 29 November 2011. Thus, the applicant was convicted about one month after the period during which M and RC were incarcerated together at Yatala Labour Prison, when the statement was purportedly made. M gave the following evidence on this topic: Q Do you agree though that the clear understanding you had from your conversation with [RC] is that a man had been wrongly convicted of murder. A I can't say convicted. I don't know. I can't say convicted, no. Q Why not. You've told us before you thought it was all done and dusted, it was over. A Yeah, done and dusted, somebody has been charged. I don't know if they'd been convicted at trial or just been charged. I knew the right people hadn't gone to gaol, I knew that much. 179 In evidence, M also agreed that he was diagnosed with an anti-social personality disorder; and that he has an extensive history of dishonesty offences, offences of violence and several convictions for robbery, attempted robbery, and assault. Evidence of SC 180 The prosecution re-called SC to give further evidence to rebut the purported statement by RC to M. As outlined earlier, M only provided a statement as to his conversation with RC at the conclusion of the appeal hearing, after which time the appeal hearing was reconvened to receive further evidence and submissions. 181 In an affidavit sworn on 20 September 2022, SC denied that she was present with Lagerwey when the deceased was killed. She said, however, that she had not been entirely forthcoming with police in her original statements given for the purpose of the trial or appeal hearing. She said that on 24 November 2009, Lagerwey had been violent towards her in the early evening. She said Lagerwey left their home to see the applicant, and then returned after dark, but they did not speak when he returned home. She said she heard Lagerwey on the telephone to the applicant and from that conversation she understood the applicant was intending to come to their house. She said she heard the applicant arrive, but she did not see him as she had gone into her bedroom to go to sleep. 182 SC said that on the following morning, at about 5:00am or 6:00am, Lagerwey came into her bedroom and, as she was leaving the room, he unsuccessfully tried to stop her from walking into the kitchen. In the kitchen, on the bench top, she saw ‘bricks’ of vacuum sealed methylamphetamine and a silver handgun or pistol. -- 45 of 67 -- [2023] SASCA 85 The Court 42 She said, ‘I don’t know how many vac sealed bricks there was but my kitchen bench was covered in them.’ She said she froze at the sight of the drugs and the gun. She said it was at this point that Lagerwey told her that the applicant had killed his uncle for the drugs on the bench and that he (Lagerwey) was meant to do it but, at the last minute, the applicant changed his mind and killed the deceased himself. SC said that she told Lagerwey to remove the drugs from the kitchen, which he did. She did not see the drugs again. 183 SC said that Lagerwey told her that he was going to have breakfast with the applicant that morning and left the house a short time later. She said that upon his return, Lagerwey told her that the applicant told him at breakfast that he (the applicant) had shot the deceased when his back was turned; and he had used a bullet that was a different calibre from those in the gun. 184 SC gave evidence that Lagerwey kept two ‘bricks’ of the amphetamines which he later sold, but she does not know what happened to the rest. She said that on the day after the murder, she and Lagerwey went for a drive to the Riverland. She said Lagerwey had something in the car wrapped in ‘a towel or something’ that he threw into the Murray River. He returned with the wrapping but not with the item that was previously wrapped within it, which she believed was the gun she had previously seen on her kitchen bench. She did not ask any questions. 185 In evidence, SC agreed that there was a lot of methylamphetamine on the kitchen bench but when asked whether there were about 150 ‘bricks’ she said: ‘I can’t tell you. I can tell you there was a lot, I’m not going to try and put a number on it.’ 186 SC agreed that after the deceased was killed, she had conversations with her father, RC, about the murder. She said that RC asked her about it, and she told him about Lagerwey’s involvement. She agreed she told him that Lagerwey was in possession of methylamphetamine from the Cavan premises and that the applicant left the murder weapon at her home. She agreed she told RC that the deceased was shot over drugs. When asked if she knew why her father approached her about Lagerwey’s involvement in the murder, she said it was because of his concern for her being involved in the situation. 187 It is common ground that the evidence of M is fresh for the purposes of s 159(6)(a). The applicant submits the evidence is also properly characterised as ‘compelling’ in that it is reliable, substantial, and highly probative in the context of the issues in dispute at trial. The applicant contends the probity of the evidence lay in demonstrating the effect of police non-disclosure. 188 We are not satisfied that the evidence is reliable for the following reasons. 189 First, it involves multiple layers of hearsay as to what SC purportedly told RC, who then purportedly told M. -- 46 of 67 -- [2023] SASCA 85 The Court 43 190 Second, the conversation allegedly took place in 2011, over ten years earlier, yet M waited until late 2022 to come forward with the information after learning of the second appeal. He gave no explanation for his delay. 191 Third, RC’s purported conversation with M is inherently unlikely. Whilst SC agreed that she had spoken with RC about Lagerwey’s involvement in the murder (in terms of his assistance to the applicant after the fact), we do not consider that M’s account of his conversation with RC is plausible. RC was a career criminal. He and M had no association of any substance prior to the purported conversation, and they were only incarcerated together in the same division at Yatala Labour Prison for a little over one month. It is unlikely that RC would have confided in M about a matter which had the potential to implicate his daughter (with whom he appeared close) in an offence of murder, or at least bring her to the attention of police. 192 Fourth, as to the timing of the conversation, M initially indicated in his affidavit that RC said that ‘some other bloke has worn it.’ He clarified in evidence that he understood the phrase ‘somebody had worn it’ as meaning someone has been ‘charged or convicted’ and then later explained it as meaning ‘[s]omebody’s been convicted of it. Somebody’s – it’s done and dusted.’ It is unlikely that RC would (a) discuss this matter with M for the reasons articulated above; and (b) use the phrase ‘some other bloke has worn it’ at a time when the trial was yet to commence or whilst the applicant was being tried for murder. 193 For those reasons, we are not satisfied the evidence of M is reliable. 194 Nor are we satisfied that the evidence is substantial. We do not consider the evidence to be of any real significance or importance with respect to the matter it is tendered to prove; it is not demonstrative of non-disclosure by police having deprived the applicant of an opportunity to carry out investigations into Lagerwey and SC so as to put forward a different line of defence. Nor does it show a failure by police to investigate Lagerwey and SC. It is difficult to discern how a statement made by M for the first time in mid-2022 as to his conversation with RC recounting RC’s purported conversation with SC, could have possibly come to the attention of defence counsel but for police non-disclosure; nor how the fresh evidence of M demonstrates that police failed to adequately investigate Lagerwey or SC. Contrary to the applicant’s submissions, the Case Management System (‘CMS’) (discussed in more detail later) reveals that police did investigate various aspects of Lagerwey’s involvement in the murder of the deceased but concluded that there was insufficient evidence to charge him with any offence. 195 Given our conclusion that the evidence is neither reliable nor substantial, we do not consider the evidence of M is highly probative in the context of the issues in dispute at the trial. We are not satisfied that the evidence of M is compelling. Indeed, we doubt M’s veracity. He was an unimpressive witness. -- 47 of 67 -- [2023] SASCA 85 The Court 44 196 The applicant also submitted that the evidence of SC (adduced by the respondent to rebut the evidence of M) is, of itself, fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. This submission has two main limbs: first, her evidence that she saw an ‘uncountable’ number of vacuum-packed methylamphetamine bricks on the kitchen bench is inconsistent with the applicant having taken the drugs, which the Director submits the applicant placed in the rear tray of the Navara when he left the Cavan premises at 12:14am; and second, that the murder weapon was at her house and, inferentially, that Lagerwey disposed of it during the following days. The applicant submits this evidence undermines the prosecution case at trial that he disposed of the weapon on his return from the deceased’s home and, for that reason, told a deliberate lie as to which route he took home. 197 In relation to the first limb, SC gave evidence that she observed ‘bricks’ of methylamphetamine covering her kitchen bench, stacked three to four bricks high, and taking up most of the length and width of the bench, together with a pistol. The applicant submits it would be impossible for one person to carry this quantity of methylamphetamine in a single bag in one trip from the Cavan premises to a vehicle. Further, in the Malta Drive CCTV footage, the applicant was shown carrying only a small shopping bag when he left his house at around 9:38pm. However, it is to be noted that the Cross Cranes CCTV footage shows the applicant meeting the deceased at the front gate and then returning to the car, before again attending at the front gate and entering the premises. 198 The applicant contends that the fresh evidence of SC as to the quantity of methylamphetamine at her premises on the morning of the deceased’s murder undermines one of the main planks in the prosecution case, namely that the applicant killed the deceased and stole methylamphetamine from his premises, which he took to his vehicle in a shopping bag before he left the Cavan premises. Aligned with this submission, is that the evidence is probative of Lagerwey having killed the deceased and stolen the drugs in a manner which avoided him being recorded on the Cross Cranes CCTV or having activated the sensor lights. 199 It is common ground that SC’s evidence on this topic is fresh. 200 We are satisfied that SC’s evidence as to her observations is reliable, in that she was telling the truth. However, we are not satisfied that her evidence as to the amount of methylamphetamine at her premises is substantial, in the sense that it ‘merits being accorded weight’ in undermining the prosecution case as to the identity of the offender.68 She was describing her general impression as to the quantity of methylamphetamine on her kitchen bench. Her observations were made quickly and shortly after she had woken, whilst Lagerwey was trying to prevent her from entering the kitchen. The effect of her evidence was that she was scared and unnerved by what she saw, and her impression was of seeing many bricks covering the kitchen bench. Her evidence was not sufficiently detailed or precise 68 R v Keogh (No 2) (2014) 121 SASR 307 at [106] per Gray, Sulan and Nicholson JJ. -- 48 of 67 -- [2023] SASCA 85 The Court 45 so as to preclude, or substantially undermine, the prosecution case that the applicant transported methylamphetamine, stolen from the Cavan premises on the night he was murdered, in a bag he was depicted carrying to his vehicle when leaving the Cavan premises; rather SC described a fleeting impression of what she saw in her kitchen that morning. 201 As we understand the applicant’s submission, the fact that Lagerwey was in possession of a substantial amount of methylamphetamine, which the applicant said was taken from the Cavan premises after the deceased was killed, and was in possession of the murder weapon, is relevant and highly probative of the reasonable possibility that Lagerwey was in fact the offender and is exculpatory of the applicant having committed the offence. 202 The undisputed evidence at the trial was that the applicant was present at Lagerwey’s premises from shortly after 12:56am until about 2:40am, purportedly to discuss Lagerwey’s relationship difficulties with SC. Contrary to the applicant’s submissions, in assessing whether the evidence is substantial, it is not possible to divorce the presence of methylamphetamine and a firearm at Lagerwey’s premises from Lagerwey’s assertions as to their origin. SC gave evidence that when she entered the kitchen and saw the methylamphetamine, Lagerwey told her that the applicant killed his uncle for the drugs on the bench and that he (Lagerwey) was meant to do it but at the last minute the applicant changed his mind and decided to kill the deceased himself. We believe SC’s evidence on this topic. We also reject the applicant’s challenge to the truth of Lagerwey’s assertion (as recounted by SC) that the applicant gave him the bricks of methylamphetamine. It is consistent with what Lagerwey purportedly told RC (as repeated by RC to Huppatz). It is supported by the applicant’s presence at Lagerwey’s home in the early hours of that morning, and the limited opportunity Lagerwey had to gain access to the Cavan premises, and to do so without detection or triggering the sensor lights. It is also to be remembered that there was evidence adduced at trial that police located methylamphetamine at the applicant’s premises which was of a similar composition to that found at the Cavan premises, in that both quantities of methylamphetamine contained MDMA; and it could not be excluded that all of the methylamphetamine was derived from the same source. Lagerwey’s statement as to the origin of the methylamphetamine bricks (as recounted by SC) is admissible under s 34KA of the Evidence Act and significantly undermines the exculpatory nature of the evidence. 203 In relation to the second limb, and SC’s evidence that Lagerwey disposed of the handgun or pistol she had seen on her kitchen bench on the day following the murder, whilst we consider SC’s evidence reliable as to her observations, we do not consider this evidence is substantial. Whether or not Lagerwey disposed of the handgun or pistol, that does not have the potential to exculpate the applicant. It is consistent with Lagerwey’s role as an accessory after the fact, by disposing of the murder weapon after the applicant committed the offence. -- 49 of 67 -- [2023] SASCA 85 The Court 46 204 Nor do we consider the evidence is highly probative in the context of the issues in dispute at the trial. Whilst the prosecution at trial alleged that the applicant took a different route home from the Cavan premises consistent with an immediate disposal of the murder weapon, the fresh evidence of SC, if accepted, simply points to another way by which the applicant may have disposed of the weapon, namely by giving it to Lagerwey. 205 Further, the trial Judge ultimately placed little weight on his finding that the applicant lied as to the route he took home. His Honour found that: Why the accused took a different route, and whether he stopped somewhere en route and for what purpose, cannot be positively established. Although there is no positive evidence, this fact is at least consistent with the proposition that the accused may have disposed of the murder weapon during the drive home from 14 Thomas Street. 206 The trial Judge did not use the applicant’s lie in his police interview as evidence of guilt. Furthermore, the fact remains that SC’s evidence is that she observed the handgun or pistol on her kitchen bench at about 5am or 6am on 25 November 2009, a couple of hours after the applicant had been there from shortly after 12:56am to 2:40am; and that, upon her seeing the drugs and pistol, Lagerwey told her that he did not carry out the murder, rather, the applicant had done so. 207 Given that we are not satisfied that the fresh evidence is substantial or highly probative in the context of the issues in dispute at the trial, it follows that we are not satisfied that the evidence of SC on this topic is compelling. Evidence of police non-disclosure 208 The applicant relies on the evidence of Huppatz that RC said Lagerwey made admissions to him about various matters purportedly implicating Lagerwey in the deceased’s murder which were not disclosed to defence counsel at trial. These matters include that: • Lagerwey was in possession of a large amount of methylamphetamine taken from the Cavan premises at the time of the murder; • after the murder, Lagerwey was given the gun by the applicant to dispose of it; • Lagerwey used to buy drugs from the deceased; and • Lagerwey had knowledge of a plan by the applicant to kill the deceased. 209 The applicant contends that the fresh evidence by Huppatz as to his conversation with RC supports the following: the reliability of other fresh evidence relied on by the applicant (the purported confessions by Lagerwey to Peterson and EC); the evidence of SC as to the presence of ‘bricks’ of methylamphetamine; and the evidence of EC and SC that Lagerwey disposed of the murder weapon. -- 50 of 67 -- [2023] SASCA 85 The Court 47 210 Further, the applicant contends that police were in possession of this information at the time of the applicant’s trial, and it was not properly and fully disclosed to defence counsel. It is submitted that police non-disclosure is an irregularity in the trial process which deprived the applicant from investigating legitimate lines of inquiry so as to cast doubt on the prosecution case as to identity and reveals the one-sided nature of the police investigation. Ultimately, the applicant contends that this Court cannot be satisfied that had there been proper and complete police disclosure of the Huppatz material, a conviction was inevitable. 211 Before turning in more detail to the evidence of Huppatz and the issue of police non-disclosure, it is convenient to outline the principles governing the duty of disclosure to an accused person. The duty of disclosure 212 At common law, the prosecution must disclose all relevant evidence to an accused person; a failure to do so may, in some circumstances, result in a substantial miscarriage of justice requiring the quashing of a guilty verdict. In Roberts v The Queen the Victorian Court of Appeal explained:69 It is now accepted that it is fundamental that there must be full disclosure in criminal trials. It is a ‘golden rule’. The duty is to disclose all relevant material of help to an accused. It is owed to the court, not the accused. It is ongoing. It includes, where appropriate, an obligation to make enquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice. (Citations omitted.) 213 In the context of common form appeals against conviction it is well established that there is no obligation on an accused person to seek out information which the prosecution is obliged to disclose.70 This obligation flows from prescribed legislative requirements and prosecutorial guidelines.71 214 Under s 10A(1) of the Director of Public Prosecutions Act 1991 (SA), a police officer in charge of the investigation of an indictable offence has a duty to disclose all documentary material collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case for the defence. However, the effect on a trial of material non-disclosure is the same whether the agency responsible is the State’s investigating or prosecuting authority.72 69 Roberts v The Queen (2020) 60 VR 431 at [56] per Osborn and T Forrest JJA and Taylor AJA. 70 Grey v The Queen (2001) 75 ALJR 1708 at [23] per Gleeson CJ, Gummow and Callinan JJ; Mallard v The Queen (2005) 225 CLR 125 at [16]-[17] per Gummow, Hayne, Callinan and Heydon JJ; Wood v The Queen (2012) 84 NSWLR 581 at 615-616 per McClellan CJ (with whom Latham and Rothman JJ substantially agreed). 71 These were reviewed in Brawn v The Queen [2022] SASCA 96, [30]-[38]. 72 R v Forrest (2016) 125 SASR 319 at [63] per Kourakis CJ (with whom Kelly and Lovell JJ agreed). -- 51 of 67 -- [2023] SASCA 85 The Court 48 215 Under rule 29.5 of the Australian Solicitor Conduct Rules 2015: A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person. 216 In R v Drummond (No 2), Peek J considered the relationship between prosecution non-disclosure and the question of fresh evidence under s 353A of the Criminal Law Consolidation Act 1935 (SA) (the predecessor to s 159 of the CPA). His Honour concluded that:73 …when assessing whether defence counsel used reasonable diligence, one must take into account that counsel is entitled to assume that the prosecution will disclose to the defence relevant evidence and material and, a fortiori, that the prosecution will not lead false or misleading evidence as part of its case. Further, when making an assessment of whether there was reasonable diligence, the court will extend to an accused great latitude. (Citations omitted.) 217 As discussed earlier, prosecutorial or police non-disclosure can result in a serious irregularity in the trial process which, of itself, results in a substantial miscarriage of justice. In the present case, the applicant does not contend that police non-disclosure amounted to such a serious procedural irregularity that it constituted a grave ‘departure from the essential requirements of the law that it goes to the root of the proceedings’74 and it ceased to be a fair trial according to law.75 Rather, the applicant contends that the police non-disclosure deprived the applicant of an opportunity to explore a particular line of defence, namely that the prosecution could not exclude as a reasonable possibility that Lagerwey was the principal offender. The applicant contends the Court cannot be satisfied that, absent the police non-disclosure and procedural irregularity, the applicant’s conviction for murder was inevitable. 218 We now turn to consider the evidence of Huppatz and his conversation with RC, and the other material before this Court, upon which the applicant relies as fresh evidence of police non-disclosure. Evidence of Detective Huppatz 219 In an affidavit sworn on 25 November 2021, Huppatz said that on 10 May 2011, he spoke with RC as he had received information that RC wished to speak with investigators about the deceased’s murder. 73 R v Drummond (No 2) [2015] SASCFC 82 at [174] per Peek J, citing Ratten v The Queen (1974) 131 CLR 510 at 517 per Barwick CJ. 74 Quartermaine v The Queen (1980) 143 CLR 595 at 600-601 per Gibbs J. 75 Lee v The Queen (2014) 253 CLR 455. -- 52 of 67 -- [2023] SASCA 85 The Court 49 220 RC died by suicide on 5 June 2014. 221 Huppatz said that before providing any information, RC was adamant that investigators should not disclose the information as he believed it would destroy his relationship with his daughter, SC, and potentially place her in a dangerous situation. RC was also concerned that it not become known to the prison population that he was speaking with police, as it would put him in danger whilst in custody. 222 Huppatz said that RC made clear during his conversation that he did not like Lagerwey, nor approve of his relationship with his daughter, SC. Huppatz said that at no time during the conversation did RC indicate that Lagerwey killed the deceased, but rather, Lagerwey may have known the deceased was going to be killed. Huppatz made contemporaneous notes as to his conversation with RC which were as follows (numbered in accordance with his affidavit sworn on 25 November 2021, for ease of reference): [11] 1040 – [RC]. Ames. [12] Uncle was killed. [13] Never met him. [14] Mate used to get drugs from him (Lagerwey). [15] Last time in gaol rang daughter [SC]. [16] Her boyfriend Lagerwey gave alibi for person who killed Ames. [17] Saw [SC] + Lagerwey in prison. Lagerwey told him he had given Alibi. [18] Saw media that person had recalled on the alibi. Police will be looking at you because alibi not true. [19] Said alibi was not true. [20] When he got out of gaol discussed further with Pete. [21] When got out was given large quantity of the meth that had been taken when uncle knocked. [22] Pete gave it to him. Was in gaol when murder occurred. [23] Pete gave him an ounce or two – on different occasions. Pete said it came from a bad source didn’t want anything to do with it. [24] Ketone – rock – white – beige. [25] Pete said Ames gave it to him. [SC] said Pete said that Ames had come to him to be a part in it, the killing. SC said not to be stupid. [26] Pete told him that Ames told him to kneel down, in front of him. -- 53 of 67 -- [2023] SASCA 85 The Court 50 [27] Can’t remember whether he said either the front or back of the head. [28] Possibly hundreds of thousands of dollars of meth involved. [29] The killing had been pre-planned to knock him. The issue was for the drugs maybe over property and who owed who money. [30] The source of the drugs was the uncle. Reason behind this was that Ames was selling Hypo – uncle had Ketone. There was pounds of it. [31] Pete was always careful for RC not to meet Ames. [32] Could not say if Pete knew what was going to happen but he must have had some knowledge. [33] It was Pete’s understanding that he was going to get some of the drugs after – maybe for the alibi. [34] The weapon was a pistol – Pete told RC. Pete told him he was given the gun after to get rid of it – Pete didn’t say he did or didn’t supply the gun. [35] Were training at Gym. Parole 20 June. Mark Twiggs [36] Pete said Pretty sure drugs were buried somewhere, maybe up the Riverland – used to go on trips – Berri? [37] Gun was given to Lagerwey to dispose of. May have thrown it in the river – but may have kept it. It’s what Pete might keep it. [38] Pete said some of the gear may have been owed to a Finks. [39] Ames and Lagerwey decided to cut contact because of Police attention. To his knowledge don’t have any contact. [40] Ames maybe tied up with ‘Mick’ from the Finks. 223 In evidence, Huppatz refreshed his memory from his notes and explained as follows: 224 As to paragraph [13], and his note ‘never met him’, Huppatz clarified that RC had never met the deceased. 225 As to his note at paragraph [14], ‘mate used to get drugs from him, (Lagerwey),’ Huppatz said that he could not remember the context in which RC made this comment, nor why he placed the name of Lagerwey in brackets. In cross-examination, Huppatz was asked the following questions: Q Just as you sit there first before looking at the notes, you recollect [RC] telling you, don't you, that Lagerwey had told him that he used to buy drugs from Allan Ames. A I think you're probably right but I'm hesitant to say yes without really looking at that part of the notes. … -- 54 of 67 -- [2023] SASCA 85 The Court 51 Q But you recollect [RC] telling you, don't you, that Mr Lagerwey had said to him that used to buy drugs from Allan Ames. A I'm not sure about that without re-reading that and refreshing my memory on what's actually written there. 226 It was not Huppatz’s evidence that his note at [14] refreshed his memory that RC said that Lagerwey said that he (Lagerwey) used to purchase drugs or ‘get’ drugs from the deceased. 227 In relation to paragraphs [18] and [19], Huppatz said that RC told him that he said to Lagerwey, ‘[l]ook, you can get in trouble. If this alibi is not true, you can get in trouble’ and Lagerwey confirmed to RC that his alibi for the applicant was not true. 228 In relation to paragraph [22], Huppatz clarified that RC told him Lagerwey had given RC a quantity of methylamphetamine which RC believed, but did not know, came from the incident when the deceased was murdered. RC said that he was still in gaol when the murder occurred. 229 In relation to paragraph [25], Huppatz explained that RC said that Lagerwey told him that the applicant had given drugs to him, and SC said Lagerwey said that the applicant had asked Lagerwey to be part of the killing, and SC told Lagerwey not to be so stupid. 230 Huppatz said that the notes in paragraphs [26] and [27] relate to the way in which the deceased was murdered; RC said Lagerwey told him that the applicant said he told the deceased to kneel down in front of him and shot the deceased either in the front or back of the head. 231 In relation to paragraph [33], RC said that Lagerwey told him that, for some reason, possibly related to the alibi, he was given some of the drugs (by the applicant) that came from the murder. 232 As to paragraph [34], RC said that Lagerwey told him the murder weapon was a pistol and that the applicant gave him the gun to get rid of it. 233 Huppatz said that after his conversation with RC, he proceeded to treat RC as he would an informer, on the basis that RC requested that the information remain confidential due to his concern for his, and SC’s, safety. As a result, Huppatz said that he intentionally kept the relevant entry in the CMS ‘a bit bland’ so as not reveal the identity of the source of the information. The relevant entry is as follows: 10/5/11 Received information that Lagerwey may have taken possession of the gun used in the killing of Allan Ames from the accused Daniel Ames after the killing and that he may have either retained the weapon or disposed of it. 15/6/11 Attended [redacted]. Spoke with Lagerwey in the presence of his girlfriend. Allegation put to him about the weapon. Full denial made and stated he has no -- 55 of 67 -- [2023] SASCA 85 The Court 52 knowledge of the weapon or of the activities of Danny Ames on the night other than he attended his old address at [redacted]. Search for weapon conducted … under the authority of [general search warrants] of Huppatz. Nil found. Suggest file this action. 234 Huppatz said that following his conversation with RC, he set up a covert surveillance of Lagerwey, but it did not yield any further information. 235 Huppatz gave evidence that he disclosed the CMS to defence counsel prior to the applicant’s trial in November 2011. There were also other entries in the CMS relating to Lagerwey’s involvement which were disclosed to defence counsel prior to trial. These included: • A statement was obtained from Lagerwey on 5 December 2009. When the statement was obtained, SC made a comment about the timing regarding when the applicant visited Lagerwey at their home on 24 and 25 November 2019.76 • A statement was obtained from SC on 27 February 2010.77 • Police ascertained details of all vehicles owned or driven by Lagerwey and SC to see if they drove through the Safe-T-Cam on Port Wakefield Road on 24 or 25 November 2009. None were identified.78 • Police received information that Lagerwey purchased an imitation pistol in February 2009. Police wanted to interview Lagerwey about the pistol to ascertain if it was used in the murder. Investigations led to the discovery that the pistol had been surrendered to police, which was confirmed.79 236 As set out above, police received information from RC (though it was not known that it was RC who had provided the information at the time) that Lagerwey may have assisted the applicant in some way, in providing the firearm used in the murder or by disposing of the firearm after the murder. Police attended on Lagerwey and put the allegation about the weapon to him. Lagerwey denied the allegations, saying he had no knowledge of the weapon or the activities of the applicant on the night of the murder other than when he saw him. A search for the weapon was conducted and nothing was found.80 237 In cross-examination, Huppatz maintained that after his conversation with RC, police remained open to the question of whether Lagerwey was involved in the murder of the deceased, including by potentially disposing of the firearm. Huppatz said that ultimately police suspected that Lagerwey was guilty of having 76 Appeal Exhibit A12 - Case Management System (CMS) Running Sheet No. 77. 77 Appeal Exhibit A12 - Case Management System (CMS) Running Sheet No. 78. 78 Appeal Exhibit A12 - Case Management System (CMS) Running Sheet No. 79. 79 Appeal Exhibit A12 - Case Management System (CMS) Running Sheet No. 88. 80 Appeal Exhibit A12 - Case Management System (CMS) Running Sheet No. 121. -- 56 of 67 -- [2023] SASCA 85 The Court 53 committed an offence of assist offender, but he considered there to be insufficient evidence to charge him with that offence. 238 Huppatz accepted that there were aspects of his interaction with RC on 10 May 2011 that were not accurately recorded, or recorded at all, in the CMS. These included the following matters: • The entry that Lagerwey may have taken possession of the gun used in the killing did not say that Lagerwey himself admitted to being in possession of the gun, or that the information came from RC. • There is no record that Lagerwey admitted that he used to get drugs from the deceased (although it is unclear from paragraph [14] and Huppatz’s evidence that RC said that Lagerwey made any such admission). • There is no record that Lagerwey admitted to being in possession of a large amount of methylamphetamine taken from the Cavan premises after he was murdered. • There is no record that Lagerwey claimed he had foreknowledge of a plan (by the applicant) to kill the deceased. • There is no record that police set up covert surveillance of Lagerwey after the murder. 239 Furthermore, Huppatz accepted in cross-examination that he did not investigate several matters relating to the information provided by RC as to Lagerwey’s involvement in the murder. These matters included: whether Lagerwey purchased drugs from the deceased; whether he was in possession of a large quantity of methylamphetamine taken from the deceased when he was killed; and whether he buried methylamphetamine at the Riverland. The police did not search Lagerwey’s house for drugs, nor seize CCTV footage from his premises. 240 Huppatz also agreed that police accepted, at face value, SC’s statement that Lagerwey was at home throughout the evening of 24 November 2009 (after returning from the applicant’s premises), notwithstanding that this assertion appeared to be contradicted by telephone records which showed that at 9:50pm there was a phone call made from a phone number associated with Lagerwey to a phone number associated with SC. 241 The applicant contends that the failure by police to disclose information provided by RC to Huppatz amounted to a material irregularity in the trial process which denied the applicant the opportunity of exploring other lines of inquiry on the issue of identity which, in turn, placed him at a significant forensic disadvantage. He submitted that this Court cannot be satisfied that this procedural irregularity did not make a difference to the outcome of the trial. -- 57 of 67 -- [2023] SASCA 85 The Court 54 Was the evidence of police non-disclosure fresh? 242 It may be accepted that there were key aspects of Huppatz’s conversation with RC which were not recorded in the CMS, nor disclosed to defence counsel. The prosecution (and police) both had a statutory and common law obligation to disclose that material to the applicant at trial. It is not to the point that Huppatz equated RC with an informant, particularly as it was open to the police to have claimed public interest immunity over some of the material which was not disclosed; the police did not follow the appropriate procedures in that regard, and it is not for this Court to speculate as to whether any immunity claim made by police would have been successful. 243 There were aspects of RC’s conversation with Huppatz which were disclosed in the CMS. However, in assessing whether defence counsel exercised reasonable diligence, the applicant was entitled to assume that the police and prosecution would comply with their statutory and common law obligations to disclose all relevant evidence to defence counsel. Defence counsel is to be given ‘great latitude’ in this regard.81 We consider that the evidence of Huppatz regarding the non-disclosure of parts of his conversation with RC is fresh evidence for the purposes of s 159(6)(a). Is the evidence compelling? 244 It is common ground that Huppatz’s evidence as to his non-disclosure of several components of his conversation with RC is reliable. The Director did not contend to the contrary. There is no dispute that Huppatz did not enter onto the CMS, nor otherwise disclose to defence counsel, the various matters referred to above. In particular, Huppatz did not disclose: that Lagerwey had himself admitted to being in possession of the murder weapon, nor that the information came from RC; Huppatz’s notes from which the applicant sought to infer that Lagerwey admitted he had, in the past, obtained drugs from the deceased; that Lagerwey admitted to being in possession of a large amount of methylamphetamine taken from the Cavan premises after he was murdered; and that Lagerwey claimed he had foreknowledge of a plan (by the applicant) to kill the deceased. 245 We are also satisfied that the evidence of police non-disclosure is substantial in that it is of real significance or importance with respect to the matter it is to be adduced to prove, namely: that the applicant did not receive a fair trial due to a procedural irregularity as police denied him the opportunity to explore other lines of inquiry on the issue of identity. 246 The fresh evidence of police non-disclosure was highly probative in the context of the issues in dispute at the trial, namely in establishing a procedural irregularity. What is encompassed by the concept of ‘issues in dispute at the trial’ depends on the circumstances of the case but extends to the underlying question of 81 R v Drummond (No 2) [2015] SASCFC 82 at [174] per Peek J, citing Ratten v The Queen (1974) 131 CLR 510 at 517 per Barwick CJ. -- 58 of 67 -- [2023] SASCA 85 The Court 55 whether an accused person received a fair trial according to law. The police’s failure to disclose relevant materials is highly probative in relation to the applicant establishing that he was deprived of an opportunity to explore other lines of enquiry to rebut the prosecution case as to identity; that is, to show that the prosecution had not excluded as a reasonable possibility that another person (Lagerwey) had the means, access and motive to have committed the offence. 247 In relation to the question of whether it is in the interests of justice for the fresh evidence to be considered on appeal, there are no supervening circumstances in this case which mitigate or act as a ‘filter’ against the Court finding that it is in the interests of justice to consider the fresh evidence of police non-disclosure on appeal. This is not a case concerning a vexatious or repetitive application; the applicant has maintained his innocence throughout his incarceration; and his delay in filing his appeal after 2016 was at least in part due to funding considerations. 248 For those reasons, we consider the evidence of the police non-disclosure is fresh and compelling and should, in the interests of justice, be considered on an appeal. Substantial miscarriage of justice 249 In assessing whether there has been a substantial miscarriage of justice, the relevant question is whether there is a significant possibility that the trial judge, acting reasonably, would have acquitted the applicant had the fresh evidence been before his or her Honour at trial;82 or alternatively, whether it is impossible to say on appeal that police non-disclosure did not affect the verdict at trial.83 250 Under s 159, once jurisdiction is established and permission granted, new evidence can be received in accordance with the usual rules that apply pursuant to s 157 of the CPA and the principles set out in Ratten v The Queen (‘Ratten’).84 Accordingly, in addition to the evidence of Huppatz, and the transcript of the trial (including the tendered exhibits), we have had regard to: the trial statements and interviews of Lagerwey and SC (which did not form part of the trial evidence); the criminal history of Lagerwey; the relevant telephone records of Lagerwey and SC which did not form part of the trial transcript; and the affidavit of Dr Anthony Thomas sworn on 5 April 2022. 251 The applicant contends that, having regard to the totality of the evidence, a conviction was not inevitable; or at the very least, this Court cannot exclude the possibility that the non-disclosure affected the outcome of the trial. The applicant makes the following submissions in that regard. 252 First, the applicant submits that the fresh evidence reveals Lagerwey’s connection to the deceased and his involvement in the murder. More specifically, 82 Van Beelen v The Queen (2017) 262 CLR 565 at [22] per Bell, Gageler, Keane, Nettle and Edelman JJ. 83 Roberts v The Queen [2020] VSCA 277 at [26] per Osborn and T Forrest JJA and Taylor AJA, citing Baini v The Queen (2012) 246 CLR 469 at [27] per French CJ, Hayne, Crennan, Kiefel and Bell JJ. 84 (1974) 131 CLR 510. -- 59 of 67 -- [2023] SASCA 85 The Court 56 the applicant relies on RC’s statements that Lagerwey told him: he used to purchase drugs from the deceased; he was in possession of a large quantity of drugs taken from the Cavan premises when he was killed; and he had knowledge of a plan to kill the deceased. 253 The applicant also contends that the failure by police to disclose that material deprived the applicant of the opportunity to explore other lines of enquiry which may have changed the manner in which the applicant put his case at trial. For example, the applicant submits he would have made enquiries as to any association between Lagerwey and the deceased so that he could raise an inference that Lagerwey was familiar with the Cavan premises and was capable of accessing the large shed without triggering the sensor lights or being captured on the Cross Cranes CCTV. 254 The applicant also submits that, had the information been disclosed, defence counsel would have sought more information about Lagerwey’s criminal history. A tendered a copy of Lagerwey’s antecedents revealed he has prior convictions for offences against the person and drug trafficking which, it is submitted, are relevant to suggest that he was the type of person to commit the offence, and to show that he had a possible motive to do so, namely to steal methylamphetamine from the deceased. 255 Second, the applicant submits that Lagerwey had two windows of opportunity to commit the offence. They were: (a) Between 12:14am (when the applicant left the Cavan premises) and shortly after 12:56am (when the applicant left his home to travel to Lagerwey’s home). The applicant postulated that Lagerwey may have been waiting for the applicant to leave the Cavan premises before he entered, and, after killing the deceased, telephoned the applicant on his way home. (b) After the applicant left Lagerwey’s home at about 2:40am (he returned home at 2:56am according to Malta Drive CCTV footage) and before 5am to 6am, when Lagerwey entered SC’s bedroom. 256 The applicant contends that both windows of opportunity are consistent with the forensic evidence as to the deceased’s time of death. The addendum autopsy report adduced at trial gave a range for the time of death of 12.30am +/- 2.8 hours (with 95 per cent confidence) equating to a range from around 9:45pm to 3:15am. The time of death estimate assumed an average ambient temperature of 23 degrees Celsius or above in the large shed based on the overnight minimum temperature at Kent Town on 25 November 2009, which was 16.6 degrees Celsius. The addendum autopsy report noted that ‘other estimated average ambient temperatures will give different results.’ At trial, Dr Gilbert gave evidence that the estimated time of death was ‘rubbery’ because the temperature (inside the shed) was unknown. -- 60 of 67 -- [2023] SASCA 85 The Court 57 257 The applicant tendered a report from Dr Anthony Thomas dated 5 April 2022 at the appeal hearing.85 Dr Thomas had reviewed the trial evidence of Dr Gilbert and agreed that the appropriate temperature range to apply is between 20 degrees Celsius and 23 degrees Celsius. Dr Thomas, in his report, expressed the view that if the average ambient temperature was 20 degrees Celsius within the shed, and there was moving air (as opposed to still air), the time of death could have been as late as 6:17am on 25 November 2009. The Director at the appeal hearing did not challenge the opinions of Dr Thomas as expressed in his report. 258 The applicant submits that Dr Thomas’ opinion extends the opportunity during which Lagerwey could have committed the offence and, had there been proper disclosure, the applicant would have scrutinised the time of death more closely and adduced similar expert opinion evidence at trial. 259 Third, the applicant submits there is no reliable evidence as to Lagerwey’s movements during the windows of opportunity he had to commit the offence. Huppatz gave evidence that police excluded Lagerwey as the principal offender on the basis of his interview with police during which he said he was at his home at the time of the murder. Lagerwey’s assertion as to his whereabouts was supported by SC’s statements. However, telephone records tendered on the appeal showed that there was a phone call from a mobile phone number associated with Lagerwey to a phone number associated with SC at 9:50pm on 24 November 2009 from a location other than his home.86 Huppatz agreed in evidence that he did not make any further enquiries of Lagerwey’s movements or location at about 12:30am on 25 November 2009, despite being in possession of the contradictory telephone records. 260 The applicant contends that the primary basis for the trial Judge’s finding of guilt was that the applicant was the last known person to see the deceased alive and thus, he had the opportunity to commit the crime; and the inherent unlikelihood that another person entered the premises via the blue door (which was not readily visible) or via the gap in the iron above the blue door (which would have been difficult to access without creating noise or attracting attention) and committed the murder without triggering the sensor lights or being captured on CCTV. The trial Judge reasoned that a person would need to be familiar with the premises to enter the Cavan premises either way so as to avoid triggering the sensor lights and to avoid being captured on the Cross Cranes CCTV. 261 The applicant submits that the fresh evidence of police non-disclosure placed the applicant at a significant forensic disadvantage as he would have conducted the trial differently had the entirety of Huppatz’s notes of his conversation with RC been disclosed to defence counsel prior to trial. The applicant contends that he lost the opportunity to conduct a case which challenged the prosecution’s ability to 85 Appeal Exhibit A11 – Affidavit of Dr Anthony Thomas sworn 5 April 2022. 86 Appeal Exhibits A31 – Single page of telephone calls; Appeal Exhibit A32 – Three pages of telephone calls. -- 61 of 67 -- [2023] SASCA 85 The Court 58 exclude, as a reasonable possibility, Lagerwey as the principal offender. The applicant submits he was denied the opportunity to explore a line of inquiry capable of establishing, as a reasonable possibility, that Lagerwey was a person familiar with the premises, who had the opportunity, means and motive to commit the offence. For that reason, the applicant contends it cannot be said that the procedural irregularity of police non-disclosure did not affect the verdict at trial, nor that a conviction was inevitable notwithstanding the fresh evidence. Was there a substantial miscarriage of justice? 262 On the question of whether there was a substantial miscarriage of justice by reason of police non-disclosure, it is important to note that police did disclose some of the information received from RC relating to Lagerwey’s involvement in the murder. This was done by providing to defence counsel a copy of the CMS. An entry in the CMS revealed that ‘Lagerwey may have taken possession of the gun used in the killing of Allan Ames from the accused Daniel Ames after the killing and that he may have either retained the weapon or disposed of it.’87 263 The CMS also documented other details of police involvement with Lagerwey in connection with the murder. As outlined earlier, these entries included that police had repeatedly been in contact with Lagerwey; police had conducted investigations relating to the vehicles he and his partner had access to in order to ascertain whether they had been driven through the Safe-T-Cam near the scene of the murder at the relevant time; and police conducted enquiries in relation to a weapon. 264 Although police did not properly or fully comply with their obligations of disclosure, the material that was not disclosed did not constitute a new line of enquiry, but rather, threw further light on the existing police inquiry into Lagerwey’s involvement in the murder. The applicant’s ‘lost’ line of enquiry into Lagerwey as the principal offender relies on information that: (i) he was involved with drugs; (ii) that he may have disposed of a firearm connected to the murder; and (iii) that he may have purchased drugs from the deceased, from which it can be inferred that he was familiar with the Cavan premises and had a motive to commit the offence. 265 In relation to the first two topics, the substance of those matters was either known to the applicant through his association with Lagerwey, or made known to the applicant at trial through disclosure of the CMS. In relation to the third topic, it is not clear from Huppatz’s note, ‘mate used to get drugs from him (Lagerwey)’ that Lagerwey in fact told RC (who relayed the information to Huppatz) that he used to purchase drugs from the deceased. It is difficult to glean that meaning from the face of the record. Huppatz’s evidence on the meaning of this note was equivocal. 87 Appeal Exhibit A12 - Case Management System (CMS) Running Sheet No. 121 (emphasis added). -- 62 of 67 -- [2023] SASCA 85 The Court 59 266 It is to be emphasised that Huppatz’s evidence as to what Lagerwey told RC about his association with the deceased and, by implication, his knowledge of the Cavan premises, who then relayed that information to Huppatz, involves multiple layers of hearsay. There was in fact no evidence at trial, or before this Court, from which it could be properly inferred that Lagerwey purchased drugs from the deceased, or that he had been to the Cavan premises, or that he was familiar with those premises. Nor was there anything to suggest that this ‘lost’ line of enquiry as to a potential connection between Lagerwey and the deceased was likely to yield information of ‘significant forensic value.’ 267 Moreover, the fresh evidence of non-disclosure does not extend to Huppatz’s recording that RC stated that Lagerwey admitted to carrying out the murder himself; indeed, his evidence was to the contrary. Huppatz gave evidence that his notes recorded that RC told him that Lagerwey admitted having assisted the applicant after the murder by: (i) making a statement to police potentially providing him with a false alibi; and (ii) disposing of the murder weapon. The information from RC did not establish that Lagerwey was responsible for the murder; rather, the information was consistent with the applicant being the principal offender and Lagerwey having assisted him after the fact. In evidence, Huppatz reiterated that at no time did RC say that Lagerwey told him he had committed the murder. The material which Huppatz failed to disclose did not exonerate the applicant. 268 It is also apparent from a complete review of the trial evidence, the fresh evidence, and the new material received on the second appeal, that Lagerwey’s limited opportunity and means to commit the offence significantly undermines any contention that it was a reasonable possibility that he was the principal offender, or that the non-disclosed material was of significant forensic value in exculpating the applicant. 269 As outlined earlier, the evidence adduced on the prosecution case relating to the movements of the applicant and Lagerwey on 24 and 25 November 2009, about which there was no relevant dispute at trial, showed that the applicant was in the company of Lagerwey both before and after he visited the deceased; and the trial Judge made findings to that effect. More specifically, it was the prosecution case, and the trial Judge found, that: • The applicant and Lagerwey were present together at the applicant’s home from 7:20pm until 9:18pm. • The applicant remained at his home until 9:38pm before eventually travelling in the Navarra to the Cavan premises, and parking in front of the premises at 9:52pm. • The applicant remained at the Cavan premises until he left in the Navarra at 12:14am. Upon leaving the premises he was captured on the -- 63 of 67 -- [2023] SASCA 85 The Court 60 Cross Cranes CCTV footage walking around the back of the Navara before entering the vehicle via the front driver’s door. • At 12:18am the sensor light at the front of the Cavan premises turned off and was not activated again. • The approximate time of death with a range of error of plus or minus 2.8 hours for 95 per cent certainty was around midnight. • The applicant returned to his home in the Navarra at 12:26am. • The applicant again left his home at 12:56am. • The applicant returned to his home at 2:56am. 270 At trial, the prosecution alleged that after the applicant left the Cavan premises at 12:14am, he missed two phone calls from Lagerwey. After returning home at 12:26am, he returned the call to Lagerwey. He then left his premises at 12:56am and travelled to Lagerwey’s premises. As the prosecutor submitted at trial, ‘there’s no suggestion that [the applicant] didn’t go to Mr Lagerwey’s place afterwards, all in a setting where there is any number of ways in which times can be ascertained.’ The prosecutor’s submission as to the applicant’s movements was also founded in the applicant’s admissions in his police interview.88 Lagerwey was not called as a witness at trial but the applicant’s admissions are also broadly consistent with Lagerwey’s assertions in his police interview and statement, and the telephone records relating to mobile telephones used by the applicant and Lagerwey which formed part of the prosecution brief (although the telecommunication evidence was not adduced at trial). 271 Thus, there was no dispute at trial, and none on this hearing, that the applicant was in the company of Lagerwey: on 24 November from 7:20pm until 9:18pm (before the alleged murder); and on 25 November after 12:56am (when the applicant left his home to travel to Lagerwey’s premises) until the applicant returned home at 2:56am. Thus, in the context of the issues in dispute at trial, the opportunity for Lagerwey to have committed the alleged offence was: (i) from 12:14am until about 12:56am; or (ii) after about 2:40am. 272 There was evidence that the deceased’s wife attempted to contact the deceased by telephone from 1:00am to 3:00am. Those calls went unanswered, suggesting the deceased may have been murdered during the first window of opportunity and thus producing an even smaller time period within which Lagerwey could have committed the offence. In evidence at the appeal hearing, 88 Trial Exhibit P50 – Record of Interview of 5 December 2009 at pp 33-35. -- 64 of 67 -- [2023] SASCA 85 The Court 61 the applicant also said that, when he departed, the deceased said he would be ‘right behind’ him, which suggests that he was soon to leave the premises. 273 Lagerwey was not recorded on the Cross Cranes CCTV footage arriving at the front of the Cavan premises. Nor did any person activate the sensor lights after the applicant left the premises at 12:14am. To have committed the murder without being captured on the CCTV, and without triggering the sensor lights, would require considerable familiarity with the premises such that Lagerwey would need to have known how to obtain access through the blue door or through the gap in the iron. He would also need a certain level of dexterity to do so in the dark without attracting the attention of the deceased, who had access to firearms and was ‘security conscious’, whilst presumably carrying a weapon and a bag within which to place the drugs. Whilst it is to be accepted that the sensor lights were not tested until about six months after the commission of the offence, there was evidence from the applicant’s brother, Scott Ames, that he observed them to be operating shortly after the night of the murder. 274 Further, it is highly unlikely that if Lagerwey was the principal offender, he would place himself in the company of the applicant, the deceased’s nephew, both before and after he murdered the deceased. 275 The applicant gave evidence at the appeal hearing and was cross-examined at large. The applicant was questioned as to his movements at the Cavan premises which were captured on CCTV. He denied that he took anything to the premises despite going back and forth to the car three times after he arrived. The applicant’s explanations in evidence for his movements strained credulity. The applicant was not sure why he moved to the back of the vehicle when he first got out. He denied that he was doing anything at the back of the vehicle. He said he then realised he had possession of his telephone so he moved to the passenger side of the vehicle and opened the front door to place the telephone in the car. He explained that he did so because, in his opinion, the telephone was safer in the car; he did not want it to fall out of his pocket or lose it. The applicant agreed that he then walked to the gates, then went back around the rear of the car before subsequently opening the driver’s door. The applicant said he did this to telephone his uncle. The applicant claimed that when he eventually met his uncle at the front of the property, he was handed a vial of testosterone. He returned to the car and placed the testosterone in the vehicle. This is despite the applicant earlier giving evidence that he attended at the Cavan premises to discuss ‘family matters.’ 276 The trial Judge found that the applicant lied in his police interview as to the deceased’s movements upon the applicant’s arrival. In evidence before this Court, the applicant corrected his account from the police interview as to the deceased’s movements when he left the Cavan premises, saying that he said goodbye to the deceased at the rear of the large shed. The applicant claimed that the account he gave in his police interview about the deceased following him to the gate, shaking hands with him, and hearing him close and lock the gate behind him, was a ‘balls up’ (rather than a deliberate lie). The applicant now claims that he left alone, not -- 65 of 67 -- [2023] SASCA 85 The Court 62 in the company of the deceased, and put the chain around the lock himself, and that he ‘thought he heard it click’. The applicant claimed this was an oversight that he tried to correct by contacting police. He accepted that police were not cross-examined at trial to that effect. Given the detail in the applicant’s police interview as to the deceased’s movements as the applicant departed the Cavan premises, we are satisfied that the applicant’s explanation for the change in his account was not convincing and reflected his perceived need to provide some explanation for why the rear sensor light was not activated again after he left the premises at 12:13am. 277 In relation to the deceased’s involvement with the illicit drug trade and his ostensible motive, the applicant accepted that he was at the Cavan premises for over two hours, and that there was an extended period of time in which the sensor lights were not activated and during which the deceased and the applicant were inside the large shed, not moving about. However, the applicant maintained that he never went into the rear of the large shed far enough to see the area where the table and chairs, drugs, hacksaws, and the deceased’s body were found. He accounted for his time spent at the Cavan premises as ‘just being with my uncle, talking, going to and from each shed.’ The account of limited, inexplicable movement in that shed was far from credible. 278 The applicant also claimed in evidence that the methylamphetamine found at his property, which was analysed and found to be broadly consistent with having been derived from the same source as the methylamphetamine found on the table at the Cavan premises, was given to him by the deceased on the Monday before the murder. He claimed the deceased asked to leave ‘something’ with the applicant because he (the deceased) was driving to a farm near Tailem Bend. The applicant said he did not know what the ‘something’ was until it was given to him. He said he was content to take possession of the drugs and store them at his house. He did not ask the deceased any questions about those drugs. 279 The applicant’s evidence at the appeal hearing as to what occurred between himself and the deceased on the evening of the murder was unconvincing, as was his explanation for the drugs located at his Malta Drive home. Whilst there was no established motive for the alleged offence, there was evidence of an association between the applicant and the deceased in the context of drugs and, it cannot be said that there was a proven absence of motive which undermined the prosecution case. 280 For those reasons, we do not consider that the procedural irregularity of the police non-disclosure placed the applicant at any significant forensic disadvantage such that it made any difference to the outcome of the trial or that it produced a significant possibility that a properly instructed jury, or trial judge sitting without a jury, would have acquitted the applicant had the fresh evidence of Huppatz been disclosed to defence counsel at the time of the trial. We consider the applicant’s conviction was inevitable notwithstanding the failure by police to disclose the complete context of Huppatz conversation with RC, and his notes to that affect. -- 66 of 67 -- [2023] SASCA 85 The Court 63 Orders 1. We grant permission to appeal, but dismiss the appeal. -- 67 of 67 --