By Dr Bob Moles*
The criminal appeal system in Tasmania is in breach of international human rights obligations – and has been so for over 30 years. Most people would think that if that were so, someone would have noticed it and done something about it. Also, if it transpired that a major criminal conviction (the case of Sue Neill-Fraser) was contrary to reason, common-sense and the law, one might think that it would be quickly sent back to the courts for review. Neither of those things has happened yet. To understand why, we need to place the case into a broader context.
Not only in Tasmania, but throughout Australia, the criminal trial and the criminal appeal system is not operating correctly. The Australian Human Rights Commission has declared that the rules which govern criminal appeals do not comply with international human rights obligations. Those rules state that once a person has been convicted and has had an unsuccessful appeal, they have no legal right to any further review of their case. This is so even where totally compelling evidence emerges to show that they are innocent or have been wrongly convicted.
In contrast, the UK has a Criminal Cases Review Commission (CCRC) which has led to the overturning of some 350 convictions over the last 15 years. Australia has had a few fairly notorious cases which have exposed the existence of serious and systemic errors. They range from the cases of Edward Splatt (South Australia) and Lindy Chamberlain (Northern Territory) over 30 years ago, to the more recent cases of Gordon Wood and Jeffrey Gilham (New South Wales), Graham Stafford (Queensland) and Andrew Mallard (Western Australia).
Just as important from the point of view of Tasmania’s Neill-Fraser case are the reports of yet further serious miscarriage of justice cases which have not been referred back to the courts. Along with others, I have undertaken a special study of such cases in South Australia. It was the report of those cases and a submission from the Human Rights Commission which ultimately persuaded the parliament of South Australia that the rules governing criminal appeals needed to be changed. In May 2013, the South Australian parliament introduced a new statutory right of appeal. This was the first substantive change to the appeal rights in Australia in 100 years. As they have been in “common form” across all states and territories throughout that time, this is also the first time that there has been any major discrepancy in those rights of appeal.
The lessons to be learned from these observations are:
The UK experience, with a legal system comparable to that of Australia, is that substantial numbers of wrongful convictions have occurred for a wide variety of reasons.
The more limited Australian experience makes it clear that serious systemic errors also occur in criminal trials in Australia.
The UK has a process for dealing with these problems and Australia does not, apart from the very limited right which has been introduced in South Australia.
The first case under the new right of appeal in South Australia (that of Henry Keogh) has been set down for hearing in February 2014.
It is not surprising to find that there is a case in Tasmania (the Neill-Fraser case) which is thought to be a serious miscarriage of justice. Indeed, based upon the experience of other states and other countries, we can be confident that there will be more such cases. It is important that we should understand what went wrong at the trial and the appeal of Ms Neill-Fraser. It is also important to press for an effective response to this case within the framework of the existing rules.
However, we must be mindful that longer-term structural changes are necessary. These will clearly include the enactment of a further statutory right of appeal to cure the breach of human rights obligations. It will also require the establishment of a CCRC. It is obviously inappropriate to have no effective external review of results achieved by institutions such as the criminal courts and the appeal courts. We must also introduce effective mechanisms to ensure compliance with relevant ethical obligations and codes of conduct by investigators, prosecutors, expert witnesses and lawyers (including judges). To be effective, such mechanisms should operate at a national rather than a state level.
THE FAILURE OF THE APPEAL SYSTEM IN TASMANIA
Consider the following:
1. Suppose that a person in Tasmania has been convicted of a serious criminal offence – and then has had an unsuccessful appeal.
2. After that, totally compelling evidence emerges to show that they are either innocent, or did not have a fair trial. Under Australian law, they are entitled to have their conviction set aside.
3. Yet, remarkably (apart now from South Australia), they will find that there is no legal right to any review of the case.
Most people find that to be quite shocking, and need some explanation before they accept it as a true statement of the current position in Tasmania. The following are the current appeal procedures.
The Court of Appeal
A wrongly-convicted person could apply to the Court of Appeal to re-open their previous appeal, or to hear a second appeal. They will be told that the court cannot do that. The court will say that the legislation governing the right to appeal says that a person may have “an appeal”. That is interpreted to mean “one appeal”. So, once the determination of the trial court has been “perfected” (entered onto the official court record), the appeal court cannot reconsider any aspect of the appeal, not even to correct an error which is brought to their attention.
THE HIGH COURT
If the person attempts to bring the matter to the High Court of Australia, they will be told that, for constitutional reasons, it cannot accept the fresh evidence in the case which shows that they have been wrongly convicted. In Mickelberg v The Queen Chief Justice Mason stated, “the authorities in this Court stand clearly for the proposition that the reception of fresh evidence is not a part of the appellate jurisdiction of the Court.” Michael Kirby, former Justice of the High Court stated, “justice in such cases, is truly blind. The only relief available is from the Executive Government or the media — not from the Australian judiciary.”
[For the detailed legal argument on the appeal rights see Bibi Sangha, Bob Moles “Post-Appeal Review Rights, Australia, Britain and Canada”, Criminal Law Journal, October 2012]
PETITION TO THE ATTORNEY-GENERAL
After being blocked by the Court of Appeal and the High Court, the remaining domestic option available to a wrongly convicted person is to petition the Attorney-General under the relevant statutory provision which is common to all Australian states. This enables the Attorney-General to refer the case to the Court of Appeal to be heard as an appeal.
However, the person will find that the courts have interpreted the statutory provision to say that it provides no legal rights to the applicant either to have the case referred back to the Court of Appeal, or even to a fair hearing of the application. In the case of Von Einem (1998) it was said that the section “does not create legal rights” and that the petition “assumes all legal rights have been exhausted.” It says that the statutory power given to the Attorney General is entirely discretionary and is exercisable if the Attorney General “thinks fit”. Bibi Sangha and I have expressed the view that the Von Einem principles are contrary to human rights obligations and the “rule of law” principles which are applicable in Australia.
[For the detailed legal argument on the petition procedure see Bibi Sangha, Bob Moles, “Mercy or Right: “Post-Appeal Petitions in Australia”, Flinders Law Journal, December 2012]
The effect of all of this is that in Tasmania, a wrongly convicted person must obtain a referral to the courts from an Attorney-General or else serve out the rest of the sentence. For a person sentenced to life imprisonment, the torment will not end at the end of the non-parole period set by the court. On an application for parole the person will be asked about how they feel about what they were convicted for. If the person responds by saying, “I didn’t do it” that will be taken to show a lack of contrition and a failure to accept responsibility for their crime. The parole will be refused. Life imprisonment in their case will mean “life”.
Of course, an Attorney-General should act strictly in accordance with legal principles in making any decision in relation to a petition, but as we have seen, the courts allow the Attorney to act arbitrarily or capriciously without such decision being reviewable by the courts.
In South Australia, we thought that situation was unacceptable, and that something should be done about it. However, before reviewing the South Australian response we should first say something about the UK experience.
THE CRIMINAL CASES REVIEW COMMISSION IN THE UK
In the UK IRA bombing cases, various people had been convicted in the 1970s of bombing pubs in Birmingham (the Birmingham Six) and Guildford (the Guildford Four). Years after their initial unsuccessful appeals the Court of Appeal said that the scientific evidence given at their trials was not only wrong, but fraudulent. The expert witnesses at the trials had said that tests showed that the hand-swabs had tested positive for nitro glycerine and that no other substances would give a positive result. It was later realised that the tests were only presumptive tests. They only indicated the possibility of the presence of that substance. Further confirmatory testing was required to determine if it was present and those tests were never undertaken.
Afterwards it was found out that some soaps, shoe polishes and the plastic backing on playing cards would also give positive results. The Birmingham Six had been picked up by the police after taking a train from Birmingham to Liverpool on their way back to Belfast. They had, of course, been playing cards on the train journey.
After those cases (and others) had been overturned the UK government set up a Royal Commission to look at what could be done to respond better to allegations of miscarriages of justice. The Runciman Royal Commission recommended the setting up of what became known as the Criminal Cases Review Commission.
It commenced work in 1997. It is an independent statutory body with powers to investigate and review cases, and where necessary refer them back to the Court of Appeal. Once a case is referred to the court by the CCRC, the court is obliged to hear the appeal. An important aspect of the CCRC powers is their ability to demand production of documents held by public bodies, including the police and prosecution.
To date, more than 350 convictions which had otherwise exhausted all avenues of appeal have been overturned by the Court of Appeal following referrals from the CCRC (that is an astonishing average of nearly 22 overturned in each year of its existence, or about two a month).
This includes some 70 murder convictions (more than four a year) and nearly 40 rape convictions. In four cases, people who were hanged following their convictions have had their convictions overturned. In some of the cases, there have been a number of unsuccessful appeals, petitions and referrals by the CCRC before eventually the errors at trial were recognised and dealt with.
R v Maynard and others was said to have been the longest criminal trial in British history. All four accused had their convictions overturned because the timing of one police statement was shown to be incorrect. An expert retained by the CCRC said that the number of words in the handwritten statement could not have been written in the fifty minutes between the start and finish time of the interview.
R v James involved a murder conviction which was overturned because a note found afterwards had indicated that the deceased person “might” have had suicidal thoughts.
The reasoning in these cases has to be understood in the context of what are called “circumstantial” cases.
Most people are familiar with the requirement that, in criminal trials, the guilt of the accused must be established “beyond reasonable doubt”. This means that if there is a doubt, which is reasonable, then it would be inappropriate to convict in those circumstances. It has been said in the UK cases that the possibility that the accused is guilty has to be more than just a hypothesis.
Without witnesses or other direct evidence as to what happened, we have what is called a circumstantial case. It is often said that the circumstances must be such as to be inconsistent with any rational and reasonable hypothesis in support of the innocence of the accused. The reason for this is clear. Once we have such a rational or reasonable hypothesis, then we have an explanation of the known facts consistent with the innocence of the accused and which must constitute a “reasonable doubt”.
Of course, in wrongful death cases, a circumstantial case can be no stronger than the circumstance which is determinative of the cause of death. Unless the cause of death can be determined, beyond reasonable doubt, as being homicidal, then no combination of surrounding circumstances can overcome that weakness. A suspicious death clearly has to be determined to be an unlawful death, before anyone can be held to account for it in a criminal sense.
This is why, in the UK case of R v Nicholls, once the cause of death was in doubt, the conviction had to be set aside. Similarly, in Maynard, once some aspect of the police evidence was shown to be flawed, the court could not determine what effect that error might have had on the jury’s consideration of the case, or the extent to which any of the other evidence might have been flawed. The uncertainty had to be construed in favour of the accused, and the conviction overturned.
If it subsequently transpires that the defect in the trial can be dealt with, then it may be possible for the person to be re-tried.
THE AUSTRALIAN EXPERIENCE WITH MISCARRIAGES OF JUSTICE
Without a CCRC, the Australian experience in dealing with miscarriage of justice cases has been far more limited than that of the UK. Wrongful convictions usually depend upon success at an initial appeal or (more rarely) through a referral under the petition procedure. However, two Australian cases are particularly important because they invoked a special procedure – a Royal Commission.
In 1978 Mr Splatt was convicted of the murder of an elderly woman who had been badly beaten, sexually assaulted and strangled in her bedroom. It was an early CSI-type case. The only evidence leading to the identification of Mr Splatt was “scientific evidence”. No one had ever seen him with the victim or in her house. However, the police investigator had collected trace evidence (bird seed, wood particles and tiny spicules of paint) from the scene. The hunt was on for someone who had that “unique combination” of forensic factors about their home or person.
Mr Splatt lived nearby, and it was noticed that he had an aviary in his back garden. When it was found out that he also worked as a spray painter at a nearby factory, the police investigators became committed to the idea that he was the perpetrator. He protested that apparently incriminating materials found at his home had been taken from the turnups of his trousers. However, he said, because he had put on so much weight, he had been unable to get into those trousers for several years. The investigators were not deterred, although as Mr Splatt said, it wouldn’t have taken much for them to ask him to try them on.
Although the trial lasted for just 11 days, the Royal Commission which followed sat for 196 hearing days and brought in experts from around the globe. The Commissioner, in finding the conviction to be unsafe, criticized all aspects of the scientific evidence. He was particularly critical of the role of the police officer who headed the investigation. He said the police investigator appeared to have had a dual role, part investigator and part scientist.
The Commissioner said that this sort of confusion could only happen in a system which was “an incorrect one with serious defects”. The Commissioner said that during the conduct of a trial there is a serious obligation on the lawyers conducting the trial. He said that the critical responsibility is that they should ask such detailed and probing questions of the scientists as are most likely to elicit the proper information. Following the Commission’s findings Mr Splatt was released from prison and paid $300,000 compensation.
In 1980 Lindy Chamberlain was convicted of the murder of her baby in the Australian outback. The evidence at the trial looked compelling. An arterial spray of foetal blood around the leg compartment on the passenger side of the car was fairly convincing. The fact that damage to the baby’s clothing had been done by scissors rather than by dingo teeth was obviously important. Then there was the small hand-print in blood on the baby’s clothing.
The fact that Lindy Chamberlain appeared unemotional about it all looked bad, as did the fact that she was a Seventh Day Adventist. There were also “experts” from interstate and overseas who appeared to exude eminence. The Court of Appeal found nothing wrong with the conviction, nor did the High Court.
However, by the time the Royal Commission completed its report, not a shred of the evidence given at trial was left standing. The “foetal blood” turned out to be traces of sound deadener from under the wheel arches. The “spray” turned out to be traces of the residue as blown through a small hole dividing the passenger from the engine compartment. The textile experts were simply wrong when they said that signs of scissors would be distinctively different from the cutting action of dingo teeth. The hand print in blood? Well nobody was able to see such a thing at the Commission and the bloody mark turned out to be red sand from the outback. However, that was then, surely things are different now?
In 2008 Gordon Wood was convicted of the murder of his girlfriend by throwing her from the cliff at The Gap in Sydney in 1995. Expert evidence was given at his trial to show that the woman could not have jumped from the ledge to the position where her body was found. The only explanation was that she was thrown by a powerful man. After the trial it took Mr Wood’s new legal team a painstaking three years to research the errors at his trial for presentation to the appeal court.
The Chief Justice, in his appeal judgment was scathing about every aspect of the evidence given at the trial. The police were criticised for not properly documenting the scene on the night the incident occurred. There were considerable doubts years later over precisely where the body had been found. That, in turn, was crucial to all of the calculations about how far somebody could jump or be thrown.
The scientific evidence given at the trial was found to be inadmissible on the appeal because it didn’t address the situation before the court. It merely established that a compliant and cooperating person could be thrown a certain distance, in daylight and under controlled conditions. That didn’t really help with determining what could be done in the dark, with a struggling person and on a slippery surface where any thrower was as likely to end up going over the edge as any person being thrown.
Severe criticism was levelled by the judge at the prosecutor who effectively reversed the onus of proof by asking some 50 questions to which it was thought Mr Wood should provide the answers. Why would a person purchase a chocolate bar in the hours leading up to her death if it was a suicide? As the appeal judge said, why would anyone think that Mr Wood should be able to explain such things? In any event, the basic rule of procedure makes it clear that the prosecutor has to prove the case, and there is no obligation upon an accused person to prove anything.
In his submissions the prosecutor suggested that the woman may have been thrown by a “shot put throw”. The judge said this proposition “was extraordinary and should never have been made”. The submission was entirely unsupported by any evidence and was “an invention of the prosecutor”. As the judge said, in this and other critical matters, the prosecutor argued for conclusions based on his own speculative propositions.
The prosecutor said that there was evidence to show that on the night in question, Mr Wood knew where Ms Byrne’s body was and that “her feet were up”. He said that Mr Wood could only have known this if he were there when the incident occurred. He described this as the “bottom line of the prosecution case” – “a killer point, an irrefutable point.” However, as the Chief Justice pointed out, all accepted that the night was so dark that it was not possible to see anything at the bottom of the cliff. So, even if Mr Wood had been responsible for the death, he would not have been able to identify the location or position of the body. As the judge said, far from being a crucial issue in the case, “I do not accept that this issue was of any particular significance at all”.
When his conviction was overturned, Gordon Wood was acquitted. This meant that he could not be re-tried, and the effect is that the court regarded him as being innocent of the crime as opposed to being just “wrongly convicted”. It is important to appreciate that a defective trial can lead to a conviction being overturned, with the person subsequently being found guilty of the same offence upon a retrial. That cannot happen when a person is acquitted.
It was said that in 1993 Jeffrey had come across his brother in the act of killing their parents and setting fire to the house. Jeffrey said that he was so overcome with shock that he grabbed the knife his brother had used to stab the parents and he in turn stabbed his brother. He was subsequently convicted in 1995 of the manslaughter of his brother. Later on, it was suggested that the number and distribution of stab wounds upon all three victims were so similar as to indicate the possibility that all three were killed by the same person. If that were so, then Jeffrey would be responsible for all three deaths. In 2008 he was convicted of the murder of both parents.
On the appeal the court was critical of experiments which were conducted to see how such fires might burn or spread. As the court said, “we conclude that these experiments had very little, if any, probative value”. At the same time, “the prejudicial effect of these experiments was, in our assessment, very high”. As a result, “there was a real risk that the jury were being presented with, and were being invited to act upon, an inaccurate picture of what occurred”.
The prosecutor had made it clear that the similarity in the number and distribution of the stab wounds was a significant factor pointing to guilt. The appeal court said that the presentation of the issues in this way exceeded the legitimate bounds of a closing argument by a prosecutor. “Her approach is the more egregious where the trial judge had not admitted the evidence” upon which the submissions were based. The court also took the view that various submissions by the prosecutor ought to have been rejected, because, “there was nothing in the evidence to support it” and another submission by the prosecutor “lacked a reasonable foundation”.
One eminent Australian expert, who had disagreed with the propositions being put forward by the prosecution, was not called to give evidence. The prosecutor determined that he was “unreliable”. The appeal court was particularly critical of this decision by the prosecutor, and said the expert was an “esteemed academic” who had a “professional reputation nationally and internationally”. It said that on this ground alone the conviction could be set aside.
As with Gordon Wood, the court said that Mr Gilham would be entitled to a verdict of acquittal. In effect, it meant that the prosecution case was so defective that it could not be fixed up so as to enable a retrial.
In 1995 Mr Andrew Mallard was convicted of the murder of a woman in a jewellery shop in Perth. She had been violently assaulted with a heavy instrument which was never found. Mr Mallard had been undergoing treatment for a mental illness. Because of his psychiatric condition, he thought that he was being used as an advisor to help the police work out what had happened. In giving his “advice” to the police he even went to the trouble of sketching a “wrench” which he supposed might have been used in the assault.
Far from being grateful to him, the police then turned around and said that he had confessed to the murder and that his sketch of the wrench was part of that confession. It was later revealed that experiments had been conducted with a wrench on a pig’s head in an unsuccessful attempt to replicate the injuries. Despite knowing that the wrench was unlikely to be the cause of the injuries, the prosecutor still suggested to the jury that the wrench sketched by Mr Mallard might have been used in the assault.
In 2005, after a referral on a petition, the High Court quashed the conviction on the basis of this new evidence. In 2008, the police investigators and the prosecutor were the subject of adverse findings by a Corruption and Crime Commission inquiry for either withholding information about the experiments or for misrepresenting the significance of the possible weapon. It is important to note that on his second appeal, after the referral by the Attorney-General, the Court of Appeal of Western Australia affirmed Mr Mallard’s conviction. All three appeal judges thought the conviction could be upheld. On the further appeal to the High Court, all five judges said that the conviction could not stand.
Mr Stafford was convicted of the murder of a young girl in 1991. His case is unusual in that his appeal was rejected twice by the Court of Appeal and the High Court before being allowed. His initial appeal to the Court of Appeal and the High Court was rejected in 1992-3. In 1997 the case was referred back to the Court of Appeal by the Attorney-General when it was rejected again by the Court of Appeal and the High Court. It was referred back to the Court of Appeal by the Attorney-General in 2008 when it was successful. This was because the appeal judge took the view that the evidence which had subsequently emerged showed that the jury should not have been invited to regard central aspects of the prosecution case as fairly open on the evidence. Again it was emphasised that “the prosecutor’s obligation is to put the case against the accused fairly.”
The appeal judge said the potency of the circumstantial scenario advocated by the Crown as an instrument of persuasion should not be underestimated. In this case it was found that “it was apt materially to mislead the jury”. The judge said the unsustainable aspects of the circumstantial crown case were central to the way in which it was presented to the jury. He added, “where, as in this case, it turns out that crucial aspects of a circumstantial case advocated by the Crown to the jury are unsound, it is a strong thing to conclude that the points made by the Crown with the evident intention of persuading the jury to convict did not actually influence their decision to do so.” He also emphasised that the focus of an appeal “is upon the fairness of the trial process rather than the substantive justice of the outcome.”
The judge held that the trial was unfair in a way which was apt to deprive Mr Stafford of the consideration by the jury of the real case which could fairly be made against him rather than a theoretical case, important aspects of which were not sustainable on a fair view of the evidence.
The particular concerns in this case were with items such as a maggot found in the boot of the car, and the quantity and pattern of traces of blood found at the home where the incident took place. In retrospect, it seemed that those circumstances were not in fact in accordance with the scenario advocated by the Crown.
In the cases of Splatt, Chamberlain, Mallard and Stafford, each of the original convictions had been affirmed by the Court of Appeal, and those findings were not disturbed by the High Court. Subsequently, it was revealed that there was no proper basis to the prosecution case. In Splatt and Chamberlain the Royal Commissions revealed that there were errors in every piece of scientific evidence and opinion presented to the court. In Mallard, Stafford, Wood and Gilham it was made clear that the prosecution knew or ought to have known that the case which was being presented to the court was based upon incorrect assumptions and unfair representations to the jury.
Although there are many fewer Australian cases than UK cases which have been overturned as constituting miscarriages of justice, we are able to draw some important inferences from those which we have. The first point to note is that things have not improved over the last 30 years, because then, as now, we have cases in which multiple systemic errors have occurred in the individual cases. In each case, the errors have not amounted to differences of opinion at the cutting edge of knowledge. They have involved most basic errors of investigative technique, expert evidence and legal knowledge.
Because of the basic nature of the errors concerned, and the prevalence and frequency of errors in individual cases, it would be a bold person who would assert that there are not other cases in the system yet to be identified as wrongful convictions. Indeed, any comparison with the UK, which runs a very similar legal and investigatory system to that which prevails in Australia, can only lead to the conclusion that Australia has ignored the problems of wrongful convictions rather than having addressed them effectively.
THE SOUTH AUSTRALIAN BREAKTHROUGH
In 2010, I published the book Forensic Investigations and Miscarriages of Justice (Irwin Law, Toronto) with joint authors Bibi Sangha and Kent Roach. Professor Roach is Canada’s leading professor dealing with miscarriage of justice cases. The book dealt with the law and circumstances relating to miscarriages of justice cases in Australia, Britain and Canada. A key recommendation of the book was that we should establish a CCRC in Australia.
Upon publication, Ann Bressington, an independent member of the South Australian Parliament, introduced a Bill to the Parliament to set up a CCRC. The Bill was referred to the Legislative Review Committee of the Parliament which sought public submissions.
In the months prior to that, Bibi Sangha and I had been putting submissions to the Australian Human Rights Commission (AHRC) to the effect that the combination of legal rules outlined above (which effectively prevented judicial review of miscarriage of justice cases) was contrary to international human rights obligations. The AHRC then made a submission to the Legislative Review Committee. In that submission it said:
This submission refers to the criminal law as it stands generally across all State and Territory jurisdictions in Australia.
The Commission is concerned that the current systems of criminal appeals in Australia, including in South Australia, may not adequately meet Australia’s obligations under the ICCPR in relation to the procedural aspects of the right to a fair trial. More particularly, the Commission has concerns that the current system of criminal appeals does not provide an adequate process for a person who has been wrongfully convicted or who has been the subject of a gross miscarriage of justice to challenge their conviction.
The AHRC also stated that the failure of an Attorney-General to provide written reasons for the rejection of a petition for a referral to the Court of Appeal also constituted a breach of international human rights obligations.
Bibi Sangha and I also provided a written submission to the Legislative Review Committee in which we explained the problematic South Australian cases (pp30-44). Those details had previously been provided to the public through the ABC Four Corners program “Expert Witness” in 2001 and also through the book A State of Injustice (2004) . The parliament formally published our submission which means that it has “parliamentary privilege”.
This is important in this area of work, because it means that anyone can provide an accurate report of what is contained within that submission without having to be concerned about being sued for defamation.
The Law Society of South Australia, the Law Council of Australia, the Australian Lawyers Alliance and the former High Court Justice Michael Kirby, all supported the idea of a CCRC being set up, and some specifically advocated that it be done on a national basis: (the various submissions and media reports are available here)
The Hon Michael Kirby: My own belief is that we in Australia should move, throughout the country, federal and state and territory, to have a Commission that has the time and the skill and the expertise and the DNA evidence where its available to look into these matters so that we don’t have on our conscience as a society, people in prison who are innocent and people who have been pardoned but still have the stain of conviction on their names.
Ralph Bonig: [Then President of the Law Society of South Australia] We have publicly supported the establishment of such a body in South Australia, and there has also been talk about a national body and we’ve publicly supported that but not to the detriment of having something in South Australia.
In July 2012 the Legislative Review Committee issued its report It did not recommend the establishment of a CCRC. It recommended that the legislation be amended to provide a new statutory right of appeal. It also recommended the establishment of a Forensic Science Review Panel with power to refer cases to the Court of Appeal; an inquiry into the use of expert evidence in criminal trials and a new provision to allow a person pardoned for a crime to have their case referred to the court for the purpose of setting aside the conviction.
The South Australia government decided not to implement the review and inquiry recommendations but said it would implement the new right of appeal. In November 2012 the Statute Amendment (Appeals) Bill 2012 was published for consultation as a government Bill (and the previous CCRC Bill was withdrawn). The Act came into effect on 5 May 2013. Not a single dissenting voice was raised during the passage of the Bill through the parliament.
The new Act states that where there is “fresh and compelling” evidence of a wrongful conviction, a person may be entitled to a second or further appeal. There are some technical problems with the particular wording of this provision which have been set out in some detail in articles awaiting publication in the law journals. Whilst it is not necessary for present purposes to set out those issues here, it is important to note that the South Australian provisions would need to be amended prior to adoption by other states and territories.
THE SUE NEILL-FRASER CASE
Robert Chappell disappeared from his Four Winds yacht, moored on the Derwent River in Hobart, in January 2009. For 17 years he had been living with Sue Neill-Fraser who was convicted of his murder. The case against her was entirely circumstantial. There were no eye witnesses or other direct evidence as to what had occurred. The motive was said to be a desire to acquire Mr Chappell’s interest in the yacht without having to borrow the money to buy him out. This sits uneasily with the Crown case that she had attempted to sink the yacht to conceal her involvement in the crime. The trial judge said she was well aware that she would be substantially better off with the relationship ending in death, rather than separation, although there is no proper factual basis for this claim.
It was said that Mr Chappell was attacked by Ms Neill-Fraser on the yacht either between 5-9pm or at about midnight. He was said to have been killed or rendered deeply unconscious. Between midnight and 3am, Ms Neill-Fraser was said to have sabotaged the yacht by opening a seacock and cutting a pipe in an attempt to flood and sink the boat. She then hauled the body onto the deck, possibly with the use of a winch, manoeuvred it into the tender (a small inflatable boat), took it away and dumped it somewhere in the river and returned home.
One has to say that this scenario has the same degree of implausibility to it as did the claim that Lindy Chamberlain killed her baby. Ms Chamberlain was said to have left a barbecue to put one of her children to sleep in a tent. She then took her young baby to the front passenger seat of her car which was nearby, cut the baby’s throat, put the body into a camera bag, cleaned up the car and herself, and returned to the barbecue just 10 minutes later, looking calm and composed. She had always appeared to be a loving mother and had no history of mental illness. It took many years and many formal inquiries and hearings to establish that the prosecution scenario was complete nonsense with not a shred of evidence to support it.
In this case, Ms Fraser, aged 55 and with no prior history of martial arts training, is on a boat with her partner. She is supposed to have either struck him with a heavy instrument (or stabbed him) causing his death. Apart from the suggestion of some minor signs of blood on the stairs, and on some wood panelling, cushions and a torch, there are no forensic indications of such an assault having taken place. One might think that a blow to the head (or a stabbing) sufficient to cause instant death or incapacitation would also cause significant bleeding. Indeed, one might expect to find blood, tissue and hair at the scene. But there was none consistent with a savage assault. As the judge said, there was “no direct evidence of the circumstances of the homicide”. He should have said was that there was no evidence of any homicide having occurred.
In explanation of the blood traces referred to, it was pointed out that Mr Chappell had a history of nose-bleeds and that they were so serious that he had to go to hospital as a result of them. If “traces of blood” are to be used to support a theory of murder, then those traces of blood must be consistent with a murder scenario and not consistent with an innocent nose-bleed scenario, or one accompanied by coughing or sneezing. That was not done here.
As we noted in the case of Graham Stafford, the appeal was allowed because the circumstances at the scene were not consistent with the prosecution scenario. It was said that if the young girl had been attacked in the manner described, there would have been considerably more forensic evidence of the attack, including blood, at the scene. The same could clearly be said of the Neill-Fraser case.
In his sentencing remarks, the judge said that he thought it quite likely that Ms Neill-Fraser hit Mr Chappell on the head with a heavy wrench from behind. He concluded that “the evidence did not enable the making of a detailed finding as to the manner of attack”. He should have said that there was no evidence of any attack having occurred.
In his address to the jury, the judge said that those hypotheses (about being struck by a wrench) amounted to “speculation” because there was “no evidence” that Mr Chappell was struck by a wrench. Yet, in sentencing Ms Neill-Fraser, the judge said he was content to accept that Mr Chappell had been struck by a wrench. The acceptance of the truth of a proposition by a person (a judge) who admits that there is “no evidence” to support it is clearly problematic.
We noted above in the case of Mr Wood that the appeal court judge was severely critical of the prosecution counsel for putting a proposition to the jury (about a shot put throw) for which there was no evidence before the court. The appeal court judge in R v Wood said this “was extraordinary and should never have been made” – he said the submission was “entirely unsupported by any evidence” and was “an invention of the prosecutor”. Clearly the same could and should have been said in the Neill-Fraser trial and in the appeal.
One might have expected the appeal court judges in her case to have taken a similarly strong line against “speculation” and propositions for which there was “no evidence”. One would certainly not expect the trial judge or the appeal judges to accept such propositions whether for sentencing or for any other purpose. One would also expect the trial judge to clearly instruct the jury that they were not allowed to consider propositions for which there was “no evidence”.
The same could be said about prosecuting counsel when in the address to the jury it had been said that “perhaps” Mr Chappell was getting increasingly angry and, to use Ms Fraser’s words, giving her “the usual harangue” and “snapping at me”, and she “delivers … a blow or blows, or maybe stabs him with a screwdriver, I don’t know.” The “stabbing with the screwdriver” should have earned the same rebuke as did the shot put throw submission to the jury in the Wood case.
One of the most interesting issues in the R v Wood judgment is the extent to which the Chief Justice went to explain the duties of a prosecutor. He spent several pages explaining the legal cases and codes of conduct which explained them. The fundamental duty of the prosecutor is to act as a “minister for justice”. The prosecutor must not go all out to obtain a conviction, but to present the evidence, and to argue as to its legitimate strength in supporting a conviction. The legal principles laid down in the cases, the guidelines issued by the various prosecution departments and the ethical and legal codes of conduct are very clear and well-established. They are also more honoured in the breach than in the observance.
It should be emphasised that although a circumstantial case has no direct or eye witness evidence as to what occurred, such cases are not rare or even unusual. They are not in any way inferior to cases which involve direct or eye witness evidence. However, because they depend upon inferences being drawn from facts which address the issues relevant to guilt “indirectly”, then one has to be mindful of special rules which apply to such cases.
In this Tasmanian case the judge correctly observed that the conclusion of guilt has to be the only rational conclusion open on the evidence that the jury accepted. If there is any “rational hypothesis” or “any sensible theory” consistent with innocence, then Ms Fraser had to be found not guilty.
As was explained in the recent case of R v Rayney in Western Australia:
a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances… the drawing of inferences from proven facts is different from speculation. There is no room in the criminal court for speculation or speculative theories. Inferences can only be drawn if facts proven by the evidence properly support the drawing of the inferences. (Emphasis added)
Yet, it seems, in the Neill-Fraser case, speculation was all they had to go on, and, as we have seen, the judges specifically acknowledged that. That is why the conviction must be set aside.
The trial judge in the Rayney case went on to note that the reliance by the State on circumstantial evidence requires that he consider the possibility that the proven facts do not necessarily point to guilt. Because, he said, a verdict of guilty cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty, guilt must not only be a rational inference, but it must be the only rational inference that the proven facts enable him to draw.
As he pointed out, this principle and the approach to circumstantial evidence was described by Dixon J in Martin v Osborne (1936) in the following terms:
“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.” (Emphasis added)
The appeal court judge in the Tasmanian case referred to the fact that there was a substantial body of evidence that was probative of guilt. That was simply incorrect. There was in fact no credible evidence which was probative of the guilt of Ms Neill-Fraser. The police noticed blood on steps, a knife on the floor of the wheelhouse and a torch with blood on it. The yacht was low in the water and sinking because a pipe to the toilet had been cut allowing seawater to flow in. A seacock under the flooring had also been opened, allowing seawater to flow in. None of that had any evidential connection to Ms Neill-Fraser. No fingerprints, no DNA, nothing.
It was said that the cutting of the pipe meant that the person who did it must have had some intimate knowledge of the boat. No attempt was made to identify how many people could have had that type of knowledge. Mechanics who had worked on the boat, friends who might have crewed the boat or been present when repairs were being done, people with general knowledge of that type of boat could all have known those things. The range of people with such knowledge could extend to hundreds if not thousands. It was clearly impossible to say that such evidence pointed to Ms Neill-Fraser and to no one else as the law requires.
It was said that Ms Fraser had been vague, inconsistent or untruthful about her knowledge of various things or some of her movements in the time around the incident. It has to be said that suggestions of this type by a prosecutor are very common in trying to support a circumstantial case. Lindy Chamberlain wasn’t tearful, and that was thought to be suspicious.
In the Canadian case of Guy Paul Morin, the prosecutors said they first became suspicious of Mr Morin being involved in the disappearance of a young girl, because he played the clarinet. The police also said they were suspicious of him because he didn’t join in the search party for the girl. The Commissioner said that if he had joined in the search party, no doubt that too would have looked “suspicious”. After the judicial inquiry established he had been wrongfully convicted, and there was not a single piece of evidence to indicate any involvement by him the police still said they thought he’d done it. The Commissioner said that this was tunnel vision of “staggering proportions”.
In the Gordon Wood case, the appeal judge readily accepted that there were anomalies and inconsistencies in the accounts which Mr Wood gave of his movements on the night Ms Byrne died. However, he said, a suspicion, even a strong suspicion, is not sufficient to make good the prosecution case. He went on to say that “the prosecutor’s analysis of any suggested inaccuracies is nothing more than speculation which provided no basis for the drawing of adverse inferences which amounted to nothing more than conjecture.” The same could easily have been said about Ms Neill-Fraser and the accounts which she gave of her movements and knowledge at that time. Psychologists can readily explain the adverse effects which stress and trauma can have on memory and recall. Prosecutors should be expected to know about such things.
It was also said that the inflatable dinghy had many areas that were positive to “luminal”, a screening test for blood but, the trial judge said, “not a conclusive one”. Experience has shown that inconclusive tests showed the presence of nitro glycerine on the hands of the Birmingham bombers, and foetal blood in the front of the Chamberlain car. We also know that such inferences were fundamentally in error.
An important test for the admissibility of evidence is that it is “probative”. That means that it is capable of proving some fact in issue in the case. However, a presumptive screening test is not capable of proving anything. It is merely indicative of a possibility. Without the follow-up confirmatory test results it proves nothing. Asserting the existence of possible outcomes on the basis of such tests is nothing more than speculation. In this case it is the worst sort of speculation, because it is masquerading as “science”. It would be certain to mislead a jury and it should have been ruled inadmissible.
The Crown said that it was open to conclude that the body of Mr Chappell was dumped into the river but not found because either it was outside the area searched or it was missed by the divers. We can clearly see that this is another attempt to infer knowledge on the basis of “no evidence”. The known fact (Mr Chappell is not there) is also consistent with the inference that he had gone off with someone else, that he had been taken away by force, that he had an accident or a heart attack and had fallen overboard, or that he had been abducted by aliens. The possibilities are only limited by our imagination.
What is clear is that the absence of Mr Chappell cannot be correlated with criminal action on the part of Ms Neill-Fraser to the exclusion of every other rational and reasonable explanation consistent with her innocence as the law demands.
Compare this situation with the recently completed case of Mr Rayney in Western Australia. His wife had been beaten to death and her body was buried in a park in Perth. In a trial without a jury, the judge accepted that the assault had occurred at or near the family home and that Mr Rayney had been at the home about that time. It was also accepted that a dinner place-card with Mr Rayney’s name on it was found near the grave site. In addition, Mr Rayney had been involved in an acrimonious separation from his wife. One might think that Mr Rayney’s situation looked a great deal worse than that of Ms Neill-Fraser.
However, the judge carefully analysed the other factual evidence in the case and was able to say that Mr Rayney must be acquitted. The prosecution scenario involved Mr Rayney attacking his wife when he knew that one of his daughters could return to the home at any time. He was supposed to have hidden the body nearby, and then left the premises later that night to dispose of it whilst the children were sleeping. After disposing of the body in the early hours of the morning, he is supposed to have walked a long distance home and then been at his office first thing in the morning as calm as a cucumber. The judge made it clear that he could not accept such a scenario as a reasonable possibility and Mr Rayney was acquitted.
Any similar thoughtful analysis of the Neill-Fraser case would be bound to arrive at the same conclusion. The suggestion that Ms Neill-Fraser, without any history of violence, would know how hard to hit someone on the head with a metal object to kill or instantly disable them with a single or double blow sounds fanciful. If there had been repeated blows then there would have been “cast-off” from blood spatter which would leave distinctive signs. There was none.
It is then suggested that single-handedly, the 55 year old Ms Neill-Fraser managed to move the body which weighed 64 kg, up the stairs onto the deck (possibly using a winch) and then moved the body off the deck of the yacht into the smaller dinghy along with a heavy fire extinguisher. Either on the yacht, or whilst in the dinghy, and in the dark, she has to tie the extinguisher to the body. She then has to navigate the dinghy to another location from where she managed to cast the body overboard, with the heavy fire-extinguisher attached to weigh it down and without the assistance of any winch or other lifting device.
She managed to do all this in the dark (between midnight and 3am) without capsizing the smaller boat, and without leaving any trail of blood, fibres or tissue along the route the body is supposed to have been taken… or in the dinghy. She also has to do it without being seen by anyone else. Any sensible person would find that scenario to be quite absurd. Of course, if things can be presented to a jury in the right way, by apparently sensible and serious people, there is no telling what they might be persuaded to go along with.
In the case of Mr Wood, he was supposed to have taken a conscious and struggling woman, run towards the edge of the narrow cliff platform when it was pitch black, cold, in the middle of winter, with a moist surface area, a gravel surface, at its edge a sheer drop of about 30 metres and launched her off with a javelin throw, and without going over himself. As the judge said, he was not prepared to accept that such a scenario was even a reasonable proposition, and that any of the assumptions underlying it were reasonable.
Such scenarios have the same air of unreality attaching to them as does the suggestion that Lindy Chamberlain cut her baby’s throat, disposed of the body and within minutes, cleaned herself up and returned to the barbecue, calm and composed. Such stories appear to be inconsistent with established principles of physics, crime-scene investigations, bio-mechanics and human psychology. It is important to note that, in the Tasmanian case, the prosecution scenario that the body was weighed down with some heavy object was invented to deal with the obvious fact that the body had not been found. In this context the appeal judge noted that it was Ms Neill-Fraser who “pointed out that a fire extinguisher was missing from a bracket.” Hardly the sort of thing a guilty person would be likely to do.
Much was made at the trial about the fact that a police officer had told Ms Neill-Fraser not to touch the winch on the boat, because they would want to conduct a forensic examination of it to see if she had touched it previously. Then, the police officer said, she went and touched it – clearly evincing an intention on her part to muddle up the crime-scene examination. “It was put to her that she deliberately touched the winch handle to explain how her DNA was found on it, if that proved to be the case.”
Again, we have the construction of a narrative, intended to suggest some craftiness or scheming, and which makes no sense at all. Such a scenario would only make sense if Ms Neill-Fraser had never been on the boat prior to the alleged incident. In which case, where forensic evidence (DNA) could be identified, that might disprove her story and be suspicious. However, it is well known that Ms Neill-Fraser had been on and off the boat for weeks since its arrival in Hobart in late December 2008. Her DNA could quite innocently have been all over the boat and would indicate nothing of any significance.
However, even this account by the police officer should give rise to concern because it is evidence of police incompetence in the investigation of a serious crime. The correct procedure is for any potential crime scene to be cordoned off until the forensic examination of it had been completed. This means that if things were being done properly, neither the investigating officer nor Ms Neill-Fraser should have been allowed access to the boat, until after the SOCO’s (scene of crime officers) had completed their entire forensic examination of it.
As we pointed out in A State of Injustice “Police and Forensic Procedures” : “A fundamental operation, therefore, in any criminal investigation is to quarantine the scene immediately to avoid contamination and to preserve as much information as possible. The scene should be kept cordoned off until everything has been properly examined and recorded… Contamination can also result from transference. The principle of transference applies as much to investigating officers as it does to criminals. It is the investigating officers who are the most likely people to accidentally transfer material into the scene and also between the scene and the suspect’s location. Officers who have attended at the crime scene should not be involved in interviewing suspects without taking considerable care to avoid transferring material to suspects and thus contaminating any evidence they collect from them.”
We can see from this that the idea of an investigating officer taking a suspect to the scene, in this case a yacht, and then allowing that person to wander about the scene “touching things” is not indicative of guilt on the part of the suspect, but of flawed investigative procedures by the police.
In any event, as we have seen from this case, DNA was found in a situation on the deck of the yacht which potentially incriminated another person. The police explained it away on the basis that it could have been transferred to the scene by a third party on the soles of their shoes. Of course, there is no evidence to support that scenario, anymore than there was to support any of the other alternative scenarios advanced by the police. We can see that the categorisation of a person as “a suspect” or “not a suspect” is not based upon evidence, but is merely a police officer’s conjecture (prejudice) as to who might be a suitable “person of interest”. A classic case of “tunnel vision”.
It is not uncommon in circumstantial cases, lacking in evidence, for a person to come forward to report a confession of guilt. Police “verbals” and “jail-house snitches” have been commonly used. In this case, a person came forward to say that Ms Neill-Fraser had planned to murder her brother ten years before, and had proposed a scenario very similar to that advanced by the police in this case. Apparently, he was to be taken out to sea and thrown overboard, weighted down by a toolbox.
As the appeal court judge pointed out, if the jury accepted the evidence of the informant, its probative value was substantial and the risk of its misuse was slight. Of course, the problem which prosecutors face in such cases is obvious. The witness has to demonstrate concern about “the truth” and acting properly in the public interest. Yet, the actual narrative being propounded has within it an inherent contradiction. If the informant really was concerned about the public good, then he would have gone to the police ten years ago, to report the fact that Ms Neill-Fraser was planning to murder her brother.
In this case, one might incline to the view that it all looks a bit “too convenient” to suppose that Ms Neill-Fraser discussed her murderous plan with a third-party ten years ago, and hadn’t even hinted at it to another living soul. The difficulty faced by all such persons in similar circumstances, is that if the account being put forward by the third party is a lie, perhaps to gain some compensating advantage from the police, what can she say other than, “it’s a lie”. In this case the person did seek to gain some advantage by asking the police if his evidence against Ms Neill-Fraser would be helpful to him regarding serious charges that he was facing which included illegal possession of 1000 rounds of ammunition.
The scenario of Ms Neill-Fraser as a professional assassin was continued by the judge when he said that “she seemed to be clever, very cool headed and well able to control her emotions… A positive finding was made that the killing did not occur because of a loss of self-control, nor was it a crime of passion. It was an intentional and purposeful killing, deliberately committed for financial betterment.”
This was no average suburban housewife who lost control. She was “cool” and “purposeful”. There is much in the literature about the use by judges of “gendered stereotypes” and the use of language here has much in common with those analyses. Some years ago we deconstructed a judgment in a leading contract law case to demonstrate that the depiction of the woman involved as calculating, crafty and manipulative had no basis whatever in the evidence.
The judge also added, “there was an attempt to clean up the scene of the killing and that a stranger would not have done that.” The suggestion that “a stranger” would not have “cleaned up the scene” is puzzling. Every good student of old police programs and current CSI programs knows that any self-respecting burglar or murderer always carries a handkerchief expressly for the purpose of wiping fingerprints from the scene. It is self-evident that such conduct is not meant to express the degree of friendly association with the deprived or the deceased, but is indicative of the desire to remove evidence so as not to be caught. Clearly “strangers” are just as desirous of not being caught as any family member would be. The judge drawing false inferences in this way is indicative of “tunnel vision”.
When one of the appeal court judges noted that “she had led a blameless life until she murdered Robert Chappell”, that was hardly consistent with the prior acceptance by the judge that she had planned to murder her brother 10 years previously.
The appeal court judge also commented on the fact that the trial judge had found that there was almost nothing that counted in Ms Neill-Fraser’s favour for sentencing purposes. She did not plead guilty. She showed no remorse. She had not said or done anything that would assist in the finding of the body. That, of course, is exactly what an innocent person would do, wouldn’t they?
It is clear that there is not a scintilla of evidence which implicates Ms Neill-Fraser in the murder of her partner. It is equally clear that there is no evidence to show that he has in fact been murdered. The case gives rise to a very legitimate concern as to his safety and well-being. It is important to note that the Australian Federal Police web site states that “each year 35,000 people are reported missing in Australia. While 95 percent of people are found within a short period of time, there remains approximately 1,600 long term missing persons; those who have been missing for more than six months.” This means that there are around 130 people who go missing in Australia every month.
Clearly, it is not sensible to suggest that all of those people have been murdered. In this case, there is no compelling evidence-based criteria by which one could distinguish whether Mr Chappell is in fact missing or murdered.
In the judgment in the Stafford case, it was said that it should not be assumed that the appeal court would readily conclude that there was a miscarriage of justice where the evidence “merely cast doubt upon some aspects of a circumstantial case”. However, it was accepted there that the evidence and argument on the appeal “undermined the coherence of the Crown case” to such an extent as to demonstrate a “procedural” miscarriage of justice that required the court to set aside the conviction.
Clearly the same should apply in the case of Ms Neill-Fraser in Tasmania. Australians are entitled to equal justice, no matter where they live.
It is clear from the cases which we have referred to in this article that all states and territories have demonstrated egregious error in dealing with criminal prosecutions and appeals. If such an error had occurred in the construction of a bridge or the assembly of an aeroplane or car, there would be an immediate recall or cessation of activities until the problem had been identified and resolved. In the case of criminal convictions and appeals, there appears to have been no advance in error identification and error correction systems over the last 30 years.
The same faulty evidence and procedures which convicted Mr Splatt and Ms Chamberlain have been used recently to convict Mr Mallard (Western Australia), Mr Stafford (Queensland) and Mr Wood and Mr Gilham (New South Wales). There are a significant number of cases yet to be resolved in South Australia and no doubt pressure will continue to build until the case of Ms Neill-Fraser has been properly resolved.
I would suggest that the time has come for a national debate on this issue. Clearly there needs to be a national CCRC. Investigators, prosecutors and expert witnesses in all states and territories must be required to adhere to their professional ethics and their own codes of conduct. Blanket denials of wrongdoing in the face of overwhelming evidence to the contrary is simply not consistent with a mature democracy which claims to respect human rights and the rule of law. Australia, in this respect, must awaken from its slumbers and meaningfully engage with the scholarship and reforms which are taking place in other similar jurisdictions.
* Dr Bob Moles former Associate Professor of Law, has investigated alleged miscarriages of justice for 14 years, and is the author of Forensic Investigations and Miscarriages of Justice, (Irwin Law, Toronto, 2010) as well as A State of Injustice (2004). This article was published in The Tasmanian Times December, 2 & 3, 2013