Andrew L. Urban
After hearing the appeal against Sue Neill-Fraser’s controversial 2010 conviction of the 2009 murder of her partner Bob Chappell, the three judges walked out of No 1 court in Hobart’s Supreme Court on March 3, 2021, and into the waiting chamber of legal history, with the crux of the appeal echoing in their ears. And in ours …
Dense with the tension of a decade-long battle for the correction to what so many believe is a miscarriage of justice, the appeal in the autumn of 2021 against Sue Neill-Fraser’s murder conviction, pitched the Crown, represented by DPP Daryl Coates SC and Jack Shapiro, against her legal team of Robert Richter QC and Chris Carr SC. But in a wider context, it is a battle between The System and genuine justice. Between a mild mannered, middle aged woman with no criminal record suffering the tragic loss of her partner – and a System that let her down.
Behind Neill-Fraser is a solid group of supporters including several in the legal profession; behind the DPP is the determination to protect a conviction which hides failures of investigation and errors of law; a trial riddled with them, not least groundless speculation by then DPP Tim Ellis SC that should have been disallowed by trial judge Alan Blow AO (Chief Justice since 2013).
On the first day of the appeal hearing, emotions were high as the key witness, Meaghan Vass, affirmed that she was on the Four Winds at the time of the crime, witnessed it, and exonerated Neill-Fraser. Her DNA on the deck ‘anchored’ her testimony, as Robert Richter QC observed.
But then came the fatal moment, the following morning. The Hobart Mercury splashed on its front page ‘SAM DID IT’ which pointed to the boyfriend who was on board with Vass that night – and who Vass named in court on the understanding that his name would be suppressed from publication. Her lawyer failed to put that promise into effect. Vass was traumatised and terrified. What repercussions could follow?
Her DNA remained as evidence to her eye witness testimony.
But the DPP Daryl Coates SC saw her vulnerability and exploited it, drawing Vass into a quagmire of propositions that denied her previous testimony, as she rung her hands and broke her composure, just desperate to get out of the court. Her conflicting testimony could no longer be considered reliable. But justice was not served, either. One wonders if the DPP feels proud of his work; is this how justice is served? Maybe in Tasmania …. It’s not how former NSW Deputy Senior Crown Prosecutor Margaret Cunneen SC advised law students at the University of Newcastle to serve justice, in her now famous Sir Ninian Stephen Lecture# in 2005:
“What I wish to challenge you to do, in your practice of the criminal law, is to bring your sense, your humanity and your conscience with you. Justice isn’t achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses. It’s achieved by honesty, balance and proportion. As lawyers, you have a power. Be good with it.”
THE CRUX OF THE APPEAL
The crux of the appeal is whether the Crown could prove that the DNA found on the deck was transferred from somewhere else, not a direct deposit by Vass herself. If it could not prove that, the DNA stands in the way of the conviction.
This was a ‘last resort’ argument by the prosecution, because there was no motive, no weapon, no body, no witness (against her); they had nothing, so they made up a story. The only eye witness turned out to be Meaghan Vass, who they have been trying to discredit ever since she was a match for the DNA found on the deck.
On Wednesday, March 3, 2021, Chris Carr SC delivered the closing address for the ‘appellant’ – Sue Neill-Fraser. A determined effort to build an argument on precedent and the rule of law. It was an argument that put the DNA evidence at the forefront of the appeal – not the Vass testimony. And he linked it to the mysterious dinghy seen alongside Four Winds in the afternoon.
Carr: “We know that the High Court has emphasised the need for this court not to attempt to put itself in the shoes of the trial jury, but rather to proceed on the record, accept the disadvantages of the record and make a determination – an objective determination of the existence or otherwise of a substantial miscarriage of justice.
Now, with the obvious limitations of proceeding on the record, this court nevertheless, in our submission, can clearly apprehend that there was a substantial miscarriage of justice by reason of the evidence of Jones* that would have destroyed the methodology by which the prosecutor sought to remove the pillar of the defence case at trial, namely through the transference of Ms Vass’ DNA onto the boat.
And once it’s accepted that that is the effect of Mr Jones’ evidence; that is that his evidence destroys the ability of the prosecutor to do what he did at trial and pull away that pillar of the defence case, then it inexorably follows in our submission that with the replacement of that pillar the verdict might very well have been different.
The defence hypothesis that somebody else was on the boat on the afternoon or evening of the 26th of January, supported as it was by what I’ve described as the negative identification of the dinghy on the – that was beside the Four Winds late in the afternoon of the 26th of January would properly – or at least there is a significant possibility that it would have left the jury with a reasonable doubt with that hypothesis that was raised by the defence, being seen in the eyes of the jury as a reasonable hypothesis that had not been eliminated by the prosecution.
So for those reasons, in our submission, there was a substantial miscarriage of justice and the appeal should be allowed and a retrial ordered. If the court please.
* Re the evidence of forensic pathologist Maxwell Jones: ” … the sting in Mr Jones’ evidence, the real import of it, is that he articulates just what would in fact be required for the transference to have led to the deposit of the DNA that was actually found on the Four Winds, and that explanation is entirely inconsistent with the way the matter was put to the jury on this critical issue by the learned prosecutor at trial.”
Carr also makes reference to a crucial precedent: “…we accept the Mickelberg test, which concededly sets a higher bar for success, is the test appropriately applied by this Court.”
That refers the appeal judges to this paragraph in the Mickelberg case: The final matter concerns the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence. It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.
The jury ‘acting reasonably’… and remembering that the Crown had to prove its case beyond reasonable doubt ….
Justices Helen Wood, Stephen Estcourt and Robert Pearce have to decide whether the post-trial evidence about the DNA being a direct deposit is indeed a repudiation of the Crown’s case that it was a ‘red herring’, a deposit transferred from somewhere else … perhaps on a policeman’s shoe – preposterous, cynical speculation.
Yet Sue Neill-Fraser’s fate hangs on that.
Flinders University legal academic Dr Bob Moles demolishes that speculation: “If we call the deposit on the boat the “terminal” deposit – and it resulted from being a deposit from the sole of a shoe of a police officer, then to support that theory, the investigator would expect to find another deposit two paces away from the terminal deposit – assuming that the shoe deposit theory only relates to one shoe and not both of them. Also, the deposit terminal minus one would expect to be a more substantial deposit than the terminal deposit as with each step the material on the sole of the shoe would be diminishing. That exercise can be repeated, finding increasingly substantial deposits every two paces and which lead back to the original deposit wherever that may be.
“In the absence of other deposits at two-pace intervals, one would have to assume that the police officer landed on the boat from a helicopter, or hopped between the original deposit and the terminal deposit. Neither of which is supported by the evidence.
“Therefore, the ‘deposit on the sole of the shoe’ theory is not only unlikely or improbable, but is plainly inconsistent with the forensic evidence.”
BEST CASE SCENARIO
The appeal judges may decide to set aside the conviction and ‘order’ a retrial.
Setting aside the conviction would mean that Sue Neill-Fraser is again entitled to the same presumption of innocence as we all are. She would be effectively exonerated and should be freed from jail. (Keeping her in jail would be unlawful.)
‘Order’ is not really an order; it simply gives the DPP permission to retry Neill-Fraser, if the Crown believes it has the necessary evidence. The judges cannot know what evidence there is in possession of the DPP. And the Crown must pursue the same case as it did originally.
Speculation is impermissible at trial, so the Crown’s speculation, for example, about a ‘female figure’ in a dinghy at midnight heading in the direction of Four Winds, or the method & weapon/s that killed Bob Chappell and how she disposed of the body in the dinghy, are not permitted (and should not have been at the 2010 trial.) What would be left of the Crown’s case? That she was not at Bunnings that afternoon?
How would the DPP present the new expert evidence regarding the DNA, evidence upon which the conviction would be set aside? That evidence confirms the DNA as being a direct deposit by Meaghan Vass – a deposit found in sizeable material on the deck of Four Winds.
As Dr Moles put it (and on behalf of Bibi Sangha) in his oral submission to the Budget and Finance Committee of the Parliament of South Australia on 5 November 2018, re the Henry Keogh case:
The current situation is that Mr Keogh’s conviction has been set aside. Once that happened he was restored to the presumption of innocence. That means that in law he is innocent. The word ‘presumption’ simply means that he does not have to prove it – that much is clear from the appeal decision in the case of Lindy Chamberlain.
When it is said that the Court of Appeal in this case ‘directed’ there be a retrial, that can only mean that the appeal court granted permission to the prosecution to proceed with a further trial – if they thought there was sufficient evidence to warrant such a course of action. It does not mean that the appeal court had in fact formed an opinion that there was such evidence.
In his written submission, Moles also observed as follows:
All jurisdictions in Australia, and indeed the common law world, require prosecutors to act in accordance with the basic principles of fairness, independence and impartiality and the fact that they must act as a ‘Minister of Justice’. Their duty is not to ensure a conviction at all costs, but to ensure that everyone accused of a crime in entitled to have and does in fact have a fair trial in accordance with the rule of law. They are also subject to professional rules and guidelines. An important component of those guidelines is to ensure that the court is not misled and that it is fully informed of all relevant issues. Hence the requirement for prosecutors to pay scrupulous regard to the issues of disclosure and the need to adhere to the model litigant guidelines. They explicitly state that the Crown should not play litigation ‘fast and loose’ nor adopt a ‘win-at-all-costs’ strategy. It must always act in the public interest. (See Margaret Cunneen SC’s exhortation to law students, above.)
If the judges decide Sue Neill-Fraser was denied an acquittal by the jury (due to various errors) they could enter a judgement of acquittal without offering the DPP an option for a retrial.
WHO DID IT?
In the event that Sue Neill-Fraser’s conviction is set aside, the question arises: what should TasPol do about seeking the person/s actually responsible for Bob Chappell’s death?
Other questions also arise; we will explore them at the appropriate time.
# The Sir Ninian Stephen Lecture was established in 1993 to mark the arrival of the first group of Bachelor of Laws students at the University of Newcastle. It is delivered by an eminent lawyer each academic year. The first lecture was delivered by Sir Ninian Stephen, a Justice of the High Court of Australia (1972-82) who served as the 20th Governor-General of Australia (1982-89). The lecture series continues under his name.