Sue Neill-Fraser’s first appeal – what went wrong

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.

Ground 1:
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.

CCA RESPONSE
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.

COMMENT
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.

CCA response
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.

COMMENT
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.

Justice (now Chief Justice) Blow

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.

COMMENT
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.

COMMENT
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.

CONCLUSION
The CCA was in error to refuse the appeal. Discuss….

Bill Rowlings, CEO of Civil Liberties Australia, contributed to this report.

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12 Responses to Sue Neill-Fraser’s first appeal – what went wrong

  1. Dr Maree-rose Jones says:

    Wrongful conviction. It is hoped the conviction will over ruled as unsound, and not without doubt, and SNF will be released with immediate effect. Release her now.

  2. Leigh Jennings says:

    As a current visitor to Tasmania I first became aware of this case on reading “Southern Justice”.

    I have no opinion on the guilt or otherwise of SNF, but if only half the facts and discrepancies outlined in this well-researched book are accurate, more than reasonable doubt obviously exists regarding her conviction.

    Is Tasmanian justice such that convictions can be found when there is more than ‘reasonable doubt’? When the onus is on the defendant to prove innocence, rather than the prosecutor prove guilt? When new evidence can’t be presented, and where police choose to ignore evidence that doesn’t support their case?

    I hope not.

    Tasmanian law regarding homosexuality was the butt of jokes about Tasmanians still being in ‘the dark ages’. Fortunately Tasmanian law is now enlightened in this respect, but it would seem the Dark Ages are still with you regarding the denial of justice for SNF.

    I wish your cause every success in reaching the full truth.

  3. SH says:

    SNF SHOULD NOT have to appeal.
    SNF SHOULD NOT Be in jail
    This farce has gone on long enough.
    The premier claims to have been friends and an admirer of Vanessa Goodwin, she believed SNF to be innocent & brought in the rule change so this appeal could be heard.
    For nothing else, let SNF go free to honour Vanessa’s good name!
    What gives?

    • DK says:

      Totally agree that there should be no need to go to appeal. Lindy Chamberlain was released in 5 days yet here we are – two weeks after MV gave her affadavit and named people, SNF remains behind bars. She should be released immediately. Something absolutely stinks in Tasmania with vested interests still trying to cover up this miscarriage of justice and it appears to go all the way to the top!!!!!

  4. SH says:

    I read the transcripts & was absolutely shocked that SNF was charged…& I am shocked that, due to incompetence (or worse) on the part of so many of the ‘player’ in this farce, that SNF is STILL in jail.
    Hello? Am I one of the few who can see reason here objectively?
    The prison doors should have been opened long before this and all of those who have fought to keep her in jail should be the first at the gate to kiss her feet and beg forgiveness!

  5. Gruntle Massey says:

    Appeal Ground 7 is the most interesting to me – the admission of Triffet’s claim SNF had in 1997 planned to murder her brother using him as an accomplice. This accusation ,whilst being denied by SNF, and without being corroborated by any 3rd party was admitted as evidence for the jury to consider. The denial should have equal weight to the accusation. There was animosity between Triffet and SNF, and Triffet was also subsequently charged with serious offences. I wonder whether that would have then unseated any juror’s original assessment – the word of a criminal, against that of a woman with an unblemished record.

    I havent read the trial transcript but I find the murder plan allegation astounding. I just wonder what the quality of her defence was. Why were not people called to give evidence as to her general everyday demeanour to disprove this allegation?

    Also the media and police paint SNF to be a cunning intelligent manipulative woman. If that is the case why would she be so stupid as to
    1. leave her red wind cheater on the fence in Margaret St?
    2. not have an airtight alibi? She had plenty of time to work one out.
    3. fail in her attempt to scuttle the Four Winds? If she was so clued up about the plumbing, why did she think the Four Winds would sink quickly when in fact it didnt? Doesnt every yachtie know that it is easy to put a hole in the hull to scuttle a boat? Chisel and hammer, etc

    These are all really dumb errors. No offence to the defendent, but she is not a clever criminal at all. The prosecution would of course not assist her case by helping to prove these matters, they just have an adversarial agenda. Is that equitable and fair justice? Not in my eyes.

  6. Robin Bowles says:

    On any given day, any of us could be defendants, accused by police and having to prove our innocence, rather than the police having to prove our guilt. Juries believe the DPP and the judge, why wouldn’t they in this case? Sue Neill Fraser did not receive a fair trial, a right to which we are all entitled. It is up to the DPP to present any case on behalf of the people, not to get a conviction at all costs. Since her conviction, the police, judiciary and politicians have closed ranks in the face of overwhelming alternative possibilities and refused to look dispassionately at other evidence in order to protected their various positions. A lot of people have skin in this game. No one wants to be shown to be wrong. The costs, professionally and financially, will be horrendous. The really sad part is that due to the slow grind of the legal system, it is likely to be TWO MORE YEARS before Sue’s appeal is heard and granted. Meanwhile, she waits in prison.
    And what of others, like Karen Keefe, who only tried to get Meaghan Vass what she knew to be the truth? Is that ‘perverting justice’? She’s facing prison again because she tried to do the right thing. The convict taint still permeates the legal system in Tasmania. Outrageous in the 21st century!

    • Gruntle Massey says:

      What about the story of Sarah Jane Parkinson. False allegations accepted without question by the Police that had an innocent man in remand for 4 months at the Supermax, and his family saddled with $600+K legal bills. Whatever happened to the presumption of innocence?

      The doctrine of the separation of powers in Australia divides the government into three branches: legislative, executive and judicial. There is insufficient separation between executive (police) and the judiciary. Police should be collecting facts, not “building’ cases based on their hunches and prejudices to ‘brick’ people and falsely imprison them.

    • Brian Johnston says:

      To Robin Bowles
      Juries do not believe the DPP and the judge as you state. If they did we would not need a jury.

  7. LB says:

    Outrageous….this entire case has the makings of a B grade movie….pity the entire mess ISN’T fiction…..the human, material and political damage should explode and reveal Tasmanian justice for exactly what it is – a sick joke!

    • Geraldine Allan says:

      Strictly speaking LB it was fiction transformed into a real courtroom drama. The Tasmanian players like the notoriety and another ‘win’ tick on the board, at whatever it takes/costs.

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