Andrew L. Urban
In 2012, following her 2010 conviction for the murder of Bob Chappell on their yacht on Australia Day 2009, Sue Neill-Fraser’s appeal against the verdict was refused by Crawford CJ, Tennent and Porter JJ. In light of a new appeal to be heard later this year, it is instructive to look at (some of) the reasons behind that refusal.
Several people who have read the transcript of the appeal judgment have found it sufficient to have confidence in the conviction. Several people had the opposite reaction. Some of the reasons for rejecting the grounds of appeal are at the very least arguable – and we argue them here.
A miscarriage of justice resulted from the prosecutor’s failure to recall Meaghan Vass, and/or from the learned judge’s refusal to recall Ms Vass or to direct that she be recalled, following disclosure, during the subsequent evidence of Detective Sinnitt, of matters concerning the whereabouts of Ms Vass on 26 January 2009, which matters had not been disclosed to the appellant until after Ms Vass gave evidence.
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.
There is an absurdist element at play here: the CCA is speculating as to what evidence Ms Vass’ might have given and suggests it is speculative to think that it would have assisted the defence. This is a particularly egregious error of judgment. (It was Ms Vass’ DNA at the crime scene that is now the evidence prompting a new appeal.)
Ground 3: The learned trial judge erred:
in failing to direct that, in so far as the prosecutor suggested, in cross-examination of the appellant and/or in his final address, that the appellant sought to lay a false trail to divert police by making the diary entry purportedly of 10 January 2009 after the disappearance of Mr Chappell and by deliberately touching the winches on the yacht so as to make ‘sure her mark was on [them]’ despite being told not to do so by police, those suggestions should be ignored.
Concerning the winches, counsel for the appellant twice submitted to the jury that the appellant had provided significant assistance to the police by pointing out to them irregularities on the yacht such as with the ropes and the winch handles. He made no mention of the suggestion by counsel for the Crown, which in cross-examination the appellant had denied, that she had deliberately touched those items to explain how her DNA may have been on them. …
… The appellant has not established that it is a reasonable possibility that the failure to direct the jury about how they used the evidence may have affected the verdict.
The CCA seems not to know what DNA is: Neill-Fraser’s DNA would have been all over the winches and every other part of the yacht which she and Bob Chappell owned. Her touching them while showing police the irregularities on board could not possibly be construed as ‘laying a false trail’ as the prosecution suggested, except to injure her character in the eyes of the jury. That’s not to mention the absurdity of the proposition that she was ‘laying a false trail’ of her DNA …. to incriminate herself?
As to the CCA’s speculation about the possible impact of the matters raised in ground 3, it is impossible for the CCA to know what the jury’s view might have been.
Ground 5: The learned trial judge erred:
a) in failing to instruct the jury that they could not accept the hypotheses, raised by the prosecutor in cross-examination of the appellant and in his final address, to the effect that the appellant had used a wrench to kill Mr Chappell and that she had employed yellow rubber gloves found in the galley of the yacht; and
b) in re-directing, in answer to the jury’s question on the difference between murder without an intention to cause death and manslaughter, by reference to the example of ‘hitting a man on the head with a wrench’ …
… as those hypotheses amounted to speculation because there was no evidence that Mr Chappell was struck by a wrench and the evidence showed that the DNA of Timothy Chappell, not that of the appellant, was found on the gloves.”
CCA response (edited)
In his closing address to the jury, counsel for the Crown did not suggest that the evidence established that a wrench was used to kill the deceased.
It is sadly true that the Crown did not present any evidence for the suggestion, made several times in the trial, that a wrench was used to kill the deceased. See extracts
CCA response (contd, edited)
No error of law was made by the learned judge in the ways asserted by this ground of appeal. His Honour was not obliged to direct the jury that they could not find that a wrench was used by the appellant to kill the deceased. Nor was his Honour obliged to direct the jury that they could not find that she used the gloves that were found in the galley. His Honour made it clear to the jury that the use of the wrench was merely a theory and there was no evidence that one was used.
Concerning his Honour’s use of a wrench in the examples he gave to the jury, it would have been obvious to the jury that examples were being given and that the judge was not endorsing the theory raised by counsel for the Crown.
If a judge chooses to give examples of a murder weapon precisely identical to the murder weapon hypothesized by the Crown prosecutor, it is an obvious endorsement of that hypothesis as a preferential choice over another possibility – the judge did not choose a brick or a baseball bat, for example, as a theoretical weapon.
As the CCA might itself comment: “No doubt the jury was aware” that the judge had chosen to use the very tool that the prosecutor had suggested was the murder weapon.
Further, the only DNA evidence purported to have placed Neill-Fraser in the saloon of the yacht in association with the murder was the claim made by the counsel for the Crown in his closing address. In other words, virtually the last thing the jury heard from the Crown was that Neill-Fraser’s DNA was found on latex gloves, and that those latex gloves had been used to clean up a murder scene.
There was no proof – nor was any evidence led as to the fact – that latex gloves were used to clean up the saloon; the counsel for the Crown falsely linked Neill-Fraser to both the cleaning up, and the gloves.
The claim by the Court of Criminal Appeal that the statement by the Crown counsel in relation to cleaning up, and the appellant’s DNA being on the gloves, was “insignificant” does not accord with the facts that this was the only DNA evidence in the trial linking the appellant to the crime of which she was accused …and it was wrong – and it was put before the jury at virtually the last possible moment.
The CCA was in error to refuse the appeal. Discuss….
Bill Rowlings, CEO of Civil Liberties Australia, contributed to this report.