Part 2: Appeals Process in Queensland – Other jurisdictions and judicial interpretation

Our first blog in this three part blog series provided an introduction, history and Queensland process of Appeals.  This blog will concentrate on other jurisdictions and judicial interpretation.


  1. The appeals process in other jurisdictions

While Queensland law does not provide any additional avenues beyond the traditional appeal and pardon provisions, other states have enacted a secondary mechanism of appeal. This first occurred in 2013, when South Australia passed legislation to create a new right to a second appeal.[1] In 2015 Tasmania followed suit,[2] and in 2019 so did Victoria.[3]


Section 159 of the Criminal Procedure Act 1921 (SA) provides that with the leave of the Court of Appeal:


(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.


The legislation in Tasmania is similar. Under section 402A of the Tasmanian Code, a person convicted of a serious crime or a person acquitted of a serious crime under the grounds of insanity,[4] may, with the leave of the Court of Appeal or a single judge,[5] have their case appealed to the Court for a second time if there is fresh and compelling evidence.[6] This is also the case in Victoria, where the legislation provides that a person convicted of an indictable offence in an originating court, who has exhausted their right to an appeal or who has previously had leave to hear their appeal dismissed, may apply to the Victorian Court of Appeal against their conviction if leave is granted.[7]


Therefore, there is only one ground of appeal under this new avenue of appeal – the presence of fresh and compelling evidence. The meaning of fresh and compelling evidence is provided for by the new provisions. Fresh evidence is held to be evidence that was not adduced at the trial of the convicted person.[8] Therefore, evidence that could have been adduced at the trial if reasonable diligence had occurred is excluded from being considered as fresh evidence.[9] Compelling evidence is evidence that is reliable, substantial, and highly probative to the case of the convicted person.[10]


If the appellant is granted leave, the Court of Appeal has three options. It may either: dismiss the appeal if the grounds of the appeal are not made out;[11] quash the conviction and direct that a judgement and verdict of acquittal be entered;[12] or quash the conviction and order a new trial be held.[13] According to the Tasmanian provision, in order to quash a conviction the Court must be satisfied that firstly, there is fresh and compelling evidence and secondly, the presence of such evidence means that there has been a substantial miscarriage of justice.[14]


However, before this can even occur, leave must be granted. This requires the applicant to establish that this jurisdictional fact (i.e. the fresh and compelling evidence) is reasonably arguable ‘on the balance of probabilities’.[15]


  1. Judicial interpretation of the subsequent right of appeal


The cases of Henry Keogh were the first in Australia to consider this new avenue of appeal.[16] In 1995 Keogh was sentenced to 26 years in prison for the murder of his then fiancée, Anna-Jane Cheney.


After an appeal to the High Court (which was refused)[17], four petitions for mercy which sought to cast doubt upon the validity of expert forensic evidence presented at trial and 20 years of imprisonment, Henry Keogh was granted leave for a second appeal under the new South Australian legislation. The appeal was subsequently allowed and his conviction quashed with an order for a retrial.[18] In 2015 the South Australia Director of Public Prosecutions announced that they would not be proceeding with the retrial. In his subsequent appeal it was revealed that in 2004 the Director of Public Prosecutions of South Australia had obtained a forensic report that brought into question the reliability of the original forensic findings responsible for this conviction.


In Koegh, Gray, Sulan and Nicholson JJ determined that consideration of section 353A (and indeed this can be extended to other jurisdictions) gives rise to the following questions:


  1. ‘the overall structure and intended operation of the section, including a subsidiary question addressing the inter-relationship between the need for jurisdiction to be made out and the requirement that permission to appeal be obtained;
  2. the meaning of ‘fresh’;
  3. the meaning of ‘compelling’;
  4. the meaning of ‘in the interests of justice’;
  5. the meaning of ‘substantial miscarriage of justice’; and
  6. the evidence to which the Court is permitted to have regard in determining whether there has been a substantial miscarriage of justice, having identified some evidence that satisfies the requirements of section 353A(1) and granted permission under subsection (2).’[19]

The following provides an analysis of Keogh’s interpretation of the above points.

The overarching structure and operation

This essentially referred to the threshold that was required to be overcome to hear a subsequent appeal. Their Honours termed this to be the ‘jurisdiction fact’.[20] What must be established is that there is fresh evidence, compelling evidence, and it should be in the interests of justice to consider this evidence. Importantly, any one piece of evidence must satisfy all three of these elements on the balance of probabilities before the jurisdictional fact is established.[21] The Court also stated that while in most cases simply establishing that a fresh and compelling evidence is present and that it would be in the interests to consider the evidence would in turn mean that a substantial miscarriage of justice is established, this is not always so.[22] What this means is there can, in some circumstances, be the presence of the jurisdictional fact, but a substantial injustice may not be reasonably arguably on the facts.

Fresh evidence

Their Honours reasoned that ‘The concept of fresh evidence is well known to the common law, as is the distinction between fresh evidence and new evidence’.[23] As such, they cited a number of common law definitions of fresh evidence as they did not see these definitions to be dissimilar from the s353A meaning. For example, the meaning of fresh evidence in Ratten v The Queen (1974) 131 CLR 510, was cited:

… The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case.  However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law.  But the underlying concepts of the adversary nature of the trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to trial of a criminal offence.[24]

New evidence is the opposite of this – it is evidence that of which an appellant was not actually aware but could, with reasonable diligence, have been discovered by the time of the original trial.[25]  If an appellant could have reasonably have been expected to have been aware of evidence then ordinarily it will not be considered fresh.[26] However, their Honours did recognise that at least in the criminal law, there has always been some flexibility when considering whether evidence could have been reasonably adduced.[27]



Evidence that is compelling is evidence which is reliable, substantial and highly probative in the context of the trial. When considering the reliability of evidence, this requires consideration of the quality of the evidence itself and the person or means, documentary or otherwise, through or by which the evidence is adduced.[28] Ultimately, it requires a consideration of 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’.[29]


Substantial evidence is evidence that is ‘of sufficient importance, worth or value’.[30] It is a qualitative exercise that should be considered in its ordinary meaning. Their Honours noted that often whether or not evidence is substantial may be of little consequence to the court, as they reasoned that ‘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’.[31]

Lastly, evidence that is highly probative is evidence that has the ability to affect a rational persuasion about an issue that must be proved.[32] Their Honours noted that by placing the requirement that this evidence relate to an issue in dispute at trial was a deliberate attempt by the legislature to limit the scope of an appeal under this provision.[33]

Interests of justice

The term ‘in the interests of justice’ is said to have a wide meaning. Accordingly, their Honours stated that constructing an exhaustive list of circumstances in which their requirement may be satisfied is impossible.[34]

The reference to an appeal being heard “under this section” makes it clear that the court may hear and determine an appeal only where it is satisfied of the section 353A(1) jurisdictional fact.  Thereafter, the court must consider the single available basis for allowing the appeal, namely whether there has been a substantial miscarriage of justice.[35]

Miscarriage of justice

Additionally, the term ‘miscarriage of justice’ also has a wide meaning and has been explored in a number of cases.[36]

To provide analysis on this term, their Honours cited the High Court judgement of Baini v The Queen (2012) 246 CLR 469 which considered the meaning of substantial miscarriage of justice as a basis for allowing a criminal appeal (an avenue under section 276 of Victorian legislation). Accordingly:

Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms… No single universally applicable description can be given for what is a “substantial miscarriage of justice” for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. 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. Second, 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. Third, 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.[37]

Evidence with which the court may have regard to

Lastly, section 353A(3) provides that ‘the Full Court may allow an appeal under this section if it thinks there was a substantial miscarriage of justice’.  Their Honours held that the qualifier, ‘under this section’ is to be construed as meaning in accordance with the power conferred by section 353A(1). That is, the requirements of fresh and compelling evidence that would be in the interests of justice to be considered. They reasoned that this is the only evidence (or evidence that points to this) the court can have regard to.

[1] Originally the Statutes Amendment (Appeals) Act 2013 (SA) enacted s 353A of the Criminal Law Consolidation Act 1935 (SA) which allowed for a subsequent right of appeal. On 5 March 2018 the Summary Procedure (Indictable Offences) Amendment Act 2017 commenced and section 11 of that Act repealed section 353A. Section 353A was re-enacted in identical form as Criminal Procedure Act 1921 (SA) s 159.

[2] Under section 402A of the Tasmanian Code, a person convicted of a serious crime or a person acquitted of a serious crime under the grounds of insanity, may, with the leave of the Court of Appeal or a single judge, have their case appealed to the Court for a second time if there is fresh and compelling evidence.

[3] Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) introduced section 326A of the Criminal Procedure Act 2009 (Vic), ‘Right of second or subsequent appeal against conviction’.

[4] The list of prescribed serious crimes is accounted for in The Tasmanian Code app D.

[5] The Tasmanian Code s 402A(2), (3).

[6] Ibid s 402A(6).

[7] Criminal Procedure Act 2009 (Vic) s 326A.

[8] Ibid s 402A(10)(a)(i); Criminal Procedure Act 1921 (SA) s 159(6)(a).

[9] Ibid s 402A(10)(a)(ii); Criminal Procedure Act 1921 (SA) s 159(6)(a).

[10] Ibid s 402A(10)(b); Criminal Procedure Act 1921 (SA) s 159(6)(b).

[11] Ibid s 402A(7).

[12] Ibid s 402A(8)(a); Criminal Procedure Act 1921 (SA) s 159(4).

[13] Ibid s 402A(8)(b); Criminal Procedure Act 1921 (SA) s 159(4).

[14] Ibid s 402A(6).

[15] R v Keogh (No 2) [2014] SASCFC 136, [80] and [89].

[16] This was the under the South Australia section 353A provision. While this is no longer in effect, an identical version is now contained in as Criminal Procedure Act 1921 (SA) s 159. Its discussion is therefore still valid.

[17] Keogh v The Queen [1997] HCATrans 313 (3 October 1997).

[18] R v Keogh [2014] SASCFC 20 (11 March 2014); R v Keogh [No 2] (2014) 121 SASR 307.

[19] R v Keogh (No 2) [2014] SASCFC 136, 24.

[20] Ibid, 25.

[21] Ibid.

[22] Ibid, 27.

[23] Ibid, 30.

[24] Ratten v The Queen (1974) 131 CLR 510, 516-7.

[25] See, for example, Ratten v The Queen (1974) 131 CLR 510; Lawless v The Queen (1979) 142 CLR 659; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.

[26] R v Keogh (No 2) [2014] SASCFC 136, 30-31; Ratten v The Queen (1974) 131 CLR 510, 517.

[27] R v Keogh (No 2) [2014] SASCFC 136, 31; Ratten v The Queen (1974) 131 CLR 510, 517-8.

[28] R v Keogh (No 2) [2014] SASCFC 136, 33.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Ibid, 33-34.

[34] Ibid, 35.

[35] Ibid, 36.

[36] See, for example, Mallard v The Queen (2005) 224 CLR 125; Cesan v The Queen (2008) 236 CLR 358; Nudd v The Queen (2006) 162 A Crim R 301; R v Scott (2012) 115 SASR 19; Davies & Cody v The King (1937) 57 CLR 170.

[37] Baini v The Queen (2012) 246 CLR 469, [25]-[26].