Sue Neill-Fraser appeal: a menu of options

Andrew L. Urban.

The biggest irony in yesterday’s granting of leave to appeal by Supreme Court of Tasmania’s Justice Brett in Sue Neill-Fraser’s case is that it is based on exactly the subject – the impact of DNA at the crime scene – on which the 2012 High Court leave to appeal failed. But then the High Court was not properly informed. And there are many other grounds that can be cited to overturn the conviction.

It was front page news in Hobart today.

Sue Neill-Fraser’s application for special leave to appeal to the High Court was argued in the High Court on 7 September, 2012 and refused by French CJ and Crennan J. Then defence counsel, M. J. Croucher SC, argued that the finding of the DNA was a very important and powerful consideration because it pointed to a hypothesis consistent with Neill-Fraser’s innocence. There was discussion about the potential significance of her evidence with the DPP (Tim Ellis SC) arguing that there was “nothing else to connect her [Vass] or make her a remotely possible suspect except for the presence of a swab of DNA” (at page 11). Moreover, the DPP argued (page 12):
The core evidence was … she was not on the boat. She had no way of being on the boat. There was nothing credible suggested as to how she could be on the boat.”

There was no evidence whatsoever – ‘core’ or otherwise – that she was not on the boat, nor that she had no way of being on the boat.

Again (page 13):
There is just no other connection besides DNA, one piece of DNA; no fingerprints, nothing else, and a piece of DNA found in a common walkway, not in relation to the real scene of the crime which was below decks.

The DPP played down the DNA as if it were the ‘red herring’ he called it at trial. And he confused the question of what the presence of DNA meant, despite referring to it not being at ‘the real scene of the crime’: it did not necessarily mean that Vass was a suspect in the murder. It meant that Vass was present on the yacht when the murder took place – and was a likely source of eye witness testimony. Neither the DPP nor Neill-Fraser’s counsel thought to mention that the swabbed area was so large (210 x 260 mm) as to be indicative of a direct deposit by Vass, not a touch transfer – a factor that should urge further investigation. The argument by the DPP led the High Court to the following decision:

In our view, this application does not give rise to a question suitable to a grant of special leave as the applicant has not shown that she was denied an opportunity to produce evidence on a point of substance which can be shown to have had a significant possibility of affecting the jury’s verdict. Accordingly, special leave is refused. (emphasis added)

OTHER GROUNDS

One might think that in the face of such eye witness testimony as offered by Meaghan Vass – that she witnessed the murder and Neill-Fraser was not involved – the case against Neill-Fraser collapses. But there is much more. Like pulling a loose thread on a jumper, the whole case unravels in a tangle of inadmissible evidence and prejudicial behaviour that plagued the trial.

The following analysis of the errors at trial was conducted by Dr Bob Moles, legal academic specialising in miscarriages of justice and author of several books. He is currently Adjunct Principal Researcher, College of Humanities, Arts and Social Sciences, Flinders University of South Australia. His full report on the case is available here.

Testimony of forensic scientist – inadmissible:
Luminol test results (described at trial as a ‘preliminary screening test’) should never be admitted in evidence in criminal trials without confirmatory follow-up tests which identify the substance involved. That did not happen here. There were actually confirmatory tests done in relation to the dinghy by way of ouchterlony tests but these were all negative.

This error was partly the cause of the overturning of the wrongful convictions in the cases of the IRA bombers in the UK and of Lindy Chamberlain in Australia.

At various times the witness said that it was possible for her to distinguish between a positive response (to human blood) and a false positive response (to other substances) by the quality of the glow or sparkle, and the duration of the glow. At other times she said that she could make such discriminations on the basis of her “experience”. These were the type of explanations which have been rejected in numerous previous cases. They do not accord with basic principles of scientific method. If they were reliable, then there would be “glow” and “sparkle” charts so that others could learn the technique and it would be published in scientific journals. And of course it would convert a ‘preliminary screening test’ into a ‘confirmatory test’.

Testimony of forensic pathologist – inadmissible:
This expert was asked to provide an expert opinion to the jury as to whether an older person, perhaps a bit frail, could be killed by a blow to the head with a wrench.

This evidence was inadmissible for two reasons:

  1. An expert can only give expert opinion evidence where the jury requires such knowledge to help them interpret the evidence which they have heard. An expert is not allowed to give such an opinion where the jury would already know such things from their own experience. For example, an expert is not allowed to give an expert opinion about what happens to a person after having consumed some alcohol – the jurors would know that it makes you drunk and they do not need an expert to tell them that. Clearly jurors would know that a single punch to the head can kill so that it follows that a single blow to the head with a heavy metal wrench could also kill.
  2. An expert is only allowed to give an opinion where it assists the jury to interpret evidence which has been or will be led in evidence. There must be a factual basis in the evidence which relates to the opinion which is being given. In this case, there was none. There was no evidence of any body with injuries and no evidence that anyone had been hit with a wrench. Therefore, the opinion amounted to “speculation” which recent Court of Appeal judgments have stated to be clearly inadmissible.

The Judge’s summing up – prejudicial:
The judge’s summing up was clearly in error and warrants the conviction being overturned.

A circumstantial case is one where there are no eye-witnesses. In such a case, a person cannot be convicted unless the fact of their guilt is the only rational explanation of the circumstances accepted by the jury. The law says that if there is a single rational explanation of the facts, other than the guilt of the accused, which can be derived from those circumstances, then the person cannot be convicted.

Justice (now Chief Justice) Blow

(Among other things) the judge said that it is unlikely that Mr Chappell would have tied the extinguisher to himself and thrown himself overboard. But this is based upon an assumption that this is in fact how his body was disposed of. There is no evidence to support it. The discussion of it by the judge in this way may have improperly influenced the jury.

The judge stated that this was no accident. In support of this he mentioned the sabotage. Clearly, proof of deliberate damage to the boat is not proof of deliberate damage to the person of Mr Bob Chappell. The two events could be entirely unconnected.

The judge then gave a lengthy explanation to suggest that if Chappell were killed then the involvement of others could be excluded. He sought to demonstrate that the evidence supported the view that Neill-Fraser had a motive to want rid of Chappell. He said there was the money – which in fact turned out to be relatively little given the assets which Sue Neill-Fraser had available to her. He then mentioned the fact that the relationship between her and Bob Chappell was not good. In this connection he cited as witnesses, the person who had helped navigate the boat down from Queensland to Hobart; an electrician who had worked on the boat, and a diesel mechanic who worked on the boat engine. This is after a 19 year relationship. None of her long term friends or family it seemed were willing to accept there was anything wrong.

The diesel mechanic expressed the opinion that they didn’t seem to be particularly intimate. Of course, diesel mechanics are not suitably qualified experts on human relationships and should not therefore be giving such opinions. It also begs the question as to what degree of intimacy people should display when talking to their diesel mechanic about how to fix the engine. Many might think that none at all is most appropriate, and that does not indicate any intention to want to do away with your partner.

The prosecutor’s address to the jury – prejudicial:
The prosecution address to the jury was in breach of prosecution guidelines, seriously prejudicial and warrants the conviction being overturned.

Tim Ellis SC, former DPP of Tasmania

There were a great many things wrong with this. The prosecutor (Tim Ellis SC) called Neill-Fraser a liar and a bare-faced liar around 30 times. He said that things that she had said in an attempt to explain things were “red herrings” around 50 times. (See below The Duty of a Prosecutor)

The contradiction here is that much of the prosecution case was actually built upon what she had told the police in her statements. She mentioned the ropes went through the winches the wrong way round; that the fire extinguisher was missing; that there were marks on the wood which were not there previously. This led the police to assume that the winches had been used in the disposal of the body. None of this would have been picked up unless Neill-Fraser had told them about it. It was Neill-Fraser who mentioned that some blood spots on the step were not from a nosebleed. [Chappell had been taken from the boat to a Queensland hospital in December 2008 with a severe nosebleed].

So, where things said by Neill-Fraser helped the prosecution case, they accepted them willingly and without any adverse comment. Yet when she made comments which were unhelpful to their case they said that she was devious, calculating, and manipulative.

The worst aspect of the closing address by the prosecutor was when he told the jury that Chappell was most likely killed by a single blow (he suggested possibly 2 blows? See page 1392 CT) to the head by a heavy wrench. He said it would have been a big wrench because it was a big boat – as if there was some logical connection between the two.

He then added that such a method of killing Bob Chappell could only have been done by someone he was friendly with, not a stranger.

He then added that the injuries to his body would have been indicative of an attack by a friend not a stranger.

All of this in the total absence of any evidence about death, cause of death, nature of injuries – because there is no body.

He then added that the fact that the body has disappeared also indicates homicide by a friend not a stranger, because if a stranger had killed Bob Chappell – why would that person have bothered to dispose of the body? This submission is contrary to logic, common sense, and to the sure and certain knowledge of anyone who has watched any CSI programs because everyone knows why strangers dispose of bodies after killing their victims.

The duty of a prosecutor:
The important Canadian case of Boucher v. The Queen sets out the principles applying to the duty of the prosecutor in a criminal case, and it is those criteria which have also informed the discussions on this topic in Britain and Australia.

It said it is the duty of the prosecutor to bring before the court all the relevant evid­ence and to ask the jury to come to the conclusion that the accused is guilty. The overriding duty is to assist the jury. The prosecutor must not express by inflammatory or vindictive language, the prosecutor’s personal opinion that the accused is guilty. That is because, as Boucher explained, the character or eminence of a barrister is to be wholly disregarded in determining the justice or otherwise of the client’s cause, it being an inflexible rule of forensic pleading that an advocate shall not, as such, express their personal opinion of – or their belief in – the client’s case.

The purpose of a criminal prosecution, says Boucher, is not to obtain a conviction, but to lay before the jury credible evidence relevant to what is alleged to be a crime. Whilst the prosecutor has a duty to see that all available legal proof of the facts is presented, it should be done firmly and pressed to its legitimate strength – but it must also be done fairly. The role of a prosecutor excludes any notion of winning or losing.

 

 

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26 Responses to Sue Neill-Fraser appeal: a menu of options

  1. LB says:

    Aldo, I am bemused by your statement about ‘ “obviously” not everyone having access to the SNF trial transcripts’ ….I just googled it and up it came…all 1590 pages of it.
    It is not hard to find if you actually look! It is dated 21 September 2010 (on page 6) and may be illuminating reading.

  2. SH says:

    Hi Aldo,
    Too much DNA – regardless of what has been revealed in the papers- to have been on ‘someone’s shoe’. Also same DNA found on rags (as if wiping one’s mouth).
    The fact that the ‘crime scene’ wasn’t isolated so these things couldn’t happen would have been enough to cast reasonable doubt.
    The fact that it’s that same scared person (regardless of all the judgements made {& name-calling} around her drug-using etc) whose DNA is a solid match forensically, is a mess because of conscience etc has now come forward (and thank God she has!). How would you feel in her shoes? Susan Neill-Fraser’s shoes?
    Hmmm!?

  3. LB says:

    “Damning evidence” against Susan Neill – Fraser? Would that be the repeated speculation about a wrench used as a murder weapon? (see trial transcript) Or the highly controversial photo shown to the jury demonstrating the dinghy reacting to the presence of blood? ( that actually wasn’t). The persons of interest who weren’t interviewed or recalled? The information that (now in the public domain) the jury didn’t hear? Refer to the trial transcripts.
    To me, these (along with other revelations) all point to a flawed process and desperation now to conceal the mess! Perhaps someone should convene a panel of the numerous and eminent experts who have publicly stated that the Neill – Fraser conviction is unsafe. That might shed light on what has been the “piecemeal” process that began the day after Australia Day 2009. Only someone with a vested interest could write about “damning evidence”that is so clearly contrary to all the known information. It is becoming farcical and tedious.

  4. nola scheele says:

    How long will Sue Neill-Fraser have to wait until her name is cleared as it has been too long for this appeal.

  5. Aldo says:

    The question i would ask is if the alleged improper conduct by the prosecutor was so egregious why didn’t the Court of Appeal act upon it? Did all three appeal judges err in relation to the issues you have raised?

    Having read the Court of Appeals judgement i was convinced of SN-Fraser’s guilt. I have no doubt that Vass did board the Four Winds however not on the night of Chappell’s murder/disappearance but more likely on January 10 which SNF said was the night that the yacht had been illegally broken in to with objects strewn around the yacht.

    I would mention that the High Court clearly stated in Hillier that circumstantial cases should never be viewed in a piecemeal manner and this is precisely what has occurred in this case with so much emphasis on Vass’ DNA. When one looks at all of the evidence against SNF, as one is required to do, then it’s damning.

    • andrew says:

      Events have overtaken you. Vass has not only admitted she was on board, but that she witnessed the murder. That’s pretty compelling.

    • andrew says:

      Your question is very pertinent indeed, but the Appeals Court judges had to respond to the grounds of appeal and the prosecutor’s egregious behaviour was not one of them. As for your faith in the conviction on reading the judgement, I draw your attention to just one aspect:
      From the transcript: “I do not ignore that when making submissions to the judge for the recall of Ms Vass, counsel said that what he might put to her in further cross-examination would depend on the nature and quality of her answers. But whether she might have given answers that would have significantly assisted the defence case is entirely speculative. His Honour has not been shown to have erred when he concluded that the prospect of Ms Vass giving significant evidence if recalled was slight, and that there was no realistic prospect of further evidence from her making any significant difference.” This is wrong and just repeats the error at trial – that is, refusing to recall Meaghan Vass.

      • Aldo says:

        Meaghan Vass is, incontrovertibly, untrustworthy as was proven from her testimony in the 2010 trial when she lied about being on the yacht and more recently when she gave evidence in the new appeal reneging on her Stat Dec of April, saying it was made under duress.

        Events have not overtaken me considering that it’s clear that the gullible have swallowed her nonsense hook, line and sinker.

        • andrew says:

          What, she didn’t witness the murder and is just making it up so she can be in danger from retaliation as well as at risk of being charged for various offences? And her behaviour is consistent with her making it up? Or, she is again telling the truth, as she did on the previous occasion she signed an affidavit, and this is supported by the DNA evidence. I do hope you are seeking the truth, not trying to protect a very dodgy conviction…

        • marie leone says:

          Aldo her DNA was on a boat where a man is presumed murdered. Even if you dont believe anything else. SHE WAS THERE

          • Aldo says:

            marie leone read my earlier comments pls.

            andrew yes what i’m saying is that Vass did not see the murder because on the compelling evidence that Court of Appeal presented in their judgement in 2012 it was clear to me, as them, and the High Court, that she was guilty of murdering Bob Chappell beyond a reasonable doubt.

            No experienced judges who are very familiar with perjury in courts would believe Vass given that she is an erratic,attention seeking,drug user who has proven herself to be an unreliable in court and media interviews. If you can’t see that then i’m afraid i can’t help you.

          • andrew says:

            Oh, thanks for your help thus far then

        • CB says:

          Wow Aldo, She is untrustworthy, but we can trust her statements from the first trial? The fact is she made important statements for the prosecution during the trial.
          As for the Court of Appeal, they also dismissed Lindy Chamberlain’s appeal. They dismissed the appeal of Darryl Beamish, even though the murderer Eric Cooke had confessed. Why? Because Eric Cooke was an untrustworthy serial killer! Why trust his confession!?
          The last place you should look for a balanced view of the evidence is the C of A transcripts. They simply regurgitate the prosecution case uncritically, because they are tasked with asking whether the jury was allowed to give a guilty verdict. They are not tasked with analysing the evidence and deciding whether SNF is actually guilty. This makes it a very bad source to quote in terms of what the evidence shows. Appeals Courts in the country have a shocking overall record when it comes to overturning wrongful convictions.

          • Jenny says:

            Lindy was consistent in her version of events throughout all the years ever since that night a dingo took her baby daughter.

            Sue kept changing her story and claims a loss of memory for most of the afternoon of the Australia Day. She touched the winch even though she was instructed not to touch anything.

            Meaghan kept changing her story. In Court she says she wasn’t on the yacht. Outside the Court, sad over the past 2 or so years she said that she was on the yacht. There are several inconsistencies in the story we have been told over the past two years by Meaghan and a few others who interacted with her during that time (Karen K, Colin Mc).

          • andrew says:

            Just by the way ….It’s not rational to infer anything about interfering with evidence from Sue Neill-Fraser touching a winch on her own boat. Her DNA &fingerprints would be all over the boat, obviously. This was a silly proposition to try and poison the jury’s mind. We should avoid repeating that sly of hand (cousin to sleight of hand).

          • Aldo says:

            CB We don’t, obviously, all have access to the trial transcripts and nor do we know how the jury came to their verdict so the Court of Appeals judgement is what we have and they did reveal significant detail surrounding the case.

            You are entitled to your conspiracy theories and claim it’s a “very bad source” but i don’t share your views. What’s more i saw Vass in both Undercurrent and 60 Minutes and she was IMO totally unconvincing.

          • CB says:

            You are entitled to your opinion Aldo. But if your source of information is the Court of Appeal transcript, then it is not a particularly informed opinion.

            As for conspiracies, I never suggested one. I just said that the DNA evidence very clearly supports one version of Meaghan Vass’s story over the other. Very very simple.

          • CB says:

            Jenny,

            this is what the prosecutor said about Lindy Chamberlain ‘you are entitled to find that she invented the dingo lie… she lied about the animal; its appearance, what it did, where it went, what she did. She’s lied about the blood in the car, the tracksuit pants, the dress, the giggle hats, the space blanket, and the baby’s blankets… she’s lied constantly and persistently and so has her husband.’

            Sound familiar?

  6. Henry says:

    Dr Moles provided an opinion on the Testimony of a Tasmanian forensic scientist at Sue’s trial.

    But read below what a Victorian forensic scientist said about the testimony of the same Tasmanian forensic scientist:

    “An expert witness in convicted killer Susan Neill-Fraser’s bid to win an appeal has said he would not disagree with the findings of forensic expert Deb McHoul, who gave evidence in the 2010 trial.”

    https://www.abc.net.au/news/2017-10-31/tas-tuesday-hearing-of-neill-fraser-conviction-appeal/9102198

    Is Dr Moles providing an opinion on a matter that is beyond his field of expertise?

    I can find at least one scientific paper on the rate of luminol glow to several different substances. Through experience, forensic scientists develop a ‘feel’ for how luminol glows to blood versus other substances. Deb McHoul was perfectly entitled to, as an expert witness who has had considerable practical experience with the use of luminol, express her opinion that was based on her experience with luminol.

    • Robert Moles says:

      I am afraid that is not correct. An opinion by an expert must be based on principles which are part of an established body of knowledge. There must be properly established scientific findings reported in reputable journals which demonstrate the validity of the principles being used. As for me expressing opinions beyond my expertise – my opinions are based upon my research on this topic setting out the relevant legal principles and which are published by a leading international law publisher. The book was published as a guide to legal practitioners. They are legal conclusions about the admissibility of scientific evidence. You can see from the detailed paper referred to that I cite relevant legal authority to support my conclusions.

      • Henry says:

        A forensic expert, Maxwell Jones, didn’t disagree with what Deb McHoul said but you Bob, without any expertise in forensic science, disagree.

        I was informed last night that another (retired) forensic scientist commented on this very matter in the following way
        “It is entirely appropriate to take into account the nature of the luminol reaction to exclude potential areas as probably not being blood, so as to keep the focus on areas that might be blood and worthy of sampling and further testing. All experienced users of luminol do this.”

        You mention your book but did a forensic scientist review the section of your book that addresses the use of luminol and how it reacts to various substances. Why don’t you submit an article to the journal of forensic science where experts in the use of luminol will review your opinion.

        • MM says:

          Henry, are you suggesting Mr Moles is not qualified to give expert opinion on legislation? He has not given an opinion regarding the forensics itself – only what evidence law provides regarding admissibility

  7. MM says:

    I would assert that there was only one piece of DNA because the towel went walkies!

    Rule 29.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 provides that:

    “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.”

    The rule is mirrored in rule 87 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which means it applies equally to prosecuting barristers – known as ‘Crown Prosecutors’.

    In the High Court case of Mallard v R (2005), Justice Kirby explained there is a common law requirement in Australia for the prosecution to provide the defence with all material which, “…may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused”.

    That case concerned the wrongful conviction in 1995 of Andrew Mallard, in circumstances where the prosecution failed to serve a series of crucial exculpatory evidence upon the defence.

    • Henry says:

      MM,
      The other plausible alternative is that the person took off their shoes as soon as they stepped onto the deck. Have you seen where the actual spot is? Exactly where the first foot would hit the deck when boarding via the starboard boarding gate. The visible dark stain is about the size of a 50c coin. How can a vomit leave such a small dark stain? The stain was exposed to weathering effects – wind, water spray, and the sun. The first two could have spread the substance containing the DNA well beyond the location of that small dark stain.

      • andrew says:

        I will let others, if they wish, to engage with your comments, but I must say that in light of Meaghan Vass’ admission of being there, and her DNA supporting that, it seems rather pointless to be speculating so wildly.

      • MM says:

        Forget the stain, where’s the towel? It was admitted into evidence, was assigned an evidence number and has now vanished. My bet is the towel may have the presence of bile on it.

        That is what my comment is based on. If want to obsess over the stain-size be my guest but those details won’t be what the appeal focuses on because they were presented at trial.

        FRESH evidence means evidence not presented at trial. Ms Vass said vomit, the presence of bile is fresh evidence.

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