Sue Neill-Fraser could be freed … IF … a hypothetical by legal academic Dr Bob Moles*.
As already reported in these pages, it is likely that the Sue Neill-Fraser conviction may take months or even a year or two to get overturned. Of course there is no doubt at all that it will be overturned. Whilst the issue of Meaghan Vass’ DNA may well be the subject of furious claims and counter-claims, what cannot be doubted is that Neill-Fraser did not get a fair trial.
It was tainted by the admission of inadmissible forensic science evidence at trial. The Luminol test results indicating the presence of blood were not backed up by confirmatory tests and so were inadmissible. The prosecutorial statements about the inferences which could be drawn from the injuries that Mr Chappell “would have had” (Ed: thanks to the wrench imagined by the prosecutor) were also inadmissible as based upon no evidence of injuries at all. The directions by the trial judge about excluding accident, suicide and third party involvement were also misleading, not being properly based upon any admissible evidence.
When error has occurred at trial the test to be applied by the appellate court is whether, without the error, the conviction would nevertheless have been “inevitable”. Clearly in this case it would not have been. Therefore, based solely upon the errors clearly ascertainable from the transcript of the trial the conviction must be set aside. Of course all of those issues are ‘live’ issues once leave has been granted. The court can consider any evidence which tends to show there has been ‘a substantial miscarriage of justice’.
So, what can and should be done?
Tasmania could take a lead from the Victorian case of Mr Farah Jamah. The prosecutor considering the appeal realised that the judge at trial had given a “lies direction” to the jury when he should not have done. This might have unfairly suggested to the jury that Mr Jamah “may” have told a lie in his evidence. That was a mistake by the judge. Interestingly, the case also involved a mistake involving DNA. When the prosecutor realised that error had occurred he immediately contacted the defence counsel and the registrar of the appeal court. He requested an appeal hearing at the first available opportunity. Within a day or two the appeal court convened and issued a very short judgement. In fact, it consisted of a single sentence (apart from the consequential orders). It said:
“The Court, having read the materials filed by the parties and having considered the submissions and concessions of the Crown, is satisfied that it is appropriate to order that the conviction relating to the applicant be set aside and a verdict of acquittal be entered.”
That was it – an appeal judgment consisting of a single sentence and Mr Jamah was free to go home.
The same could be done in the Sue Neill-Fraser case. The only thing preventing that from happening is the unwillingness of the prosecution to exercise their powers with proper regard to their code of conduct and the plight of a wrongly convicted person – as Mr B. Sonnet (counsel for the Crown) did in Victoria.
My hope is that in due course the prosecutors in Tasmania will be made accountable for this lamentable failure to exercise their powers in accordance with the great responsibility which has been entrusted to them.
The report on the errors at trial in the Neill-Fraser case is here: http://netk.net.au/Tasmania/Neill-Fraser95.pdf
The judgment in the matter of Mr Farah Jamah is here: http://netk.net.au/DNA/DNA7.pdf
A review of the book by Julie Szego, The Tainted Trial of Farah Jama, Wild Dingo Press, 2014 is here: http://netk.net.au/TaintedBooks/Jama.pdf
ED: Another way of putting it is that the DPP’s office has an opportunity to recover some of the respect it has lost in prosecuting this case unworthy of the cause of justice. It’s a moral issue, really, and human decency. Or will it stick to its “lamentable failure to exercise their powers in accordance with the great responsibility which has been entrusted to them,” as Dr Moles puts it.
Asked for a comment on the substance of this story, Sue Neill-Fraser’s legal team has stated: “At this stage we are not in a position to comment publicly on anything.”
* Dr Moles is Adjunct Principal Researcher, College of Humanities, Arts and Social Sciences, Flinders University of South Australia