Andrew L. Urban.
Our recent ‘ENQUIRY into Sue Neill-Fraser’s unlawful murder conviction’ stopped short of examining what went wrong when in 2012 she sought leave to appeal to the High Court, after her 2011/12 appeal to the Court of Criminal Appeal in Tasmania was (wrongfully, in our opinion) dismissed. Some commentators have made the mistake of claiming that the High Court also dismissed her appeal. Not so; the High Court refused leave to hear it. On what basis?
The High Court is concerned with correcting errors of law which are of public importance. Sitting on the bench that Friday, September 7, 2012, were French CJ and Crennan J. Appearing for Neill-Fraser were Mr M. J. Croucher SC and Ms K. Cuthbertson (neither from the original team at trial). Appearing for the respondent were the original prosecutor T. J. Ellis SC and his junior, Jack Shapiro, for the DPP.
The hearing began at 11.47am; it was all over by 12.35pm – including the three minute adjournment the justices took to arrive at their decision. The following analysis and comment poses questions while recognising that this exercise is purely academic – but worthwhile all the same, to provide further background to what we regard as a wrongful conviction, compounded by ongoing failures of the criminal justice system. (See our ‘ENQUIRY into Sue Neill-Fraser’s unlawful murder conviction’ for details of the case.)
The ground for seeking leave to appeal was that the trial judge did not allow the recall of witness Meaghan Vass, whose DNA had been found on the deck of Four Winds, considered the crime scene, after she had given rather brief evidence – some of which was later found to be false, in particular, her whereabouts on the relevant night (Australia Day 2009).
(The following are selected as relevant extracts from the transcript, in chronological order, but not always directly following each other.)
MR CROUCHER: Your Honours, the special leave questions in this matter concern the appropriate tests to be applied by a trial judge upon considering an application that a witness be recalled and, in turn, how a Court of Criminal Appeal deals with a refusal thereof…. his Honour made it clear that he would not allow the witness to be recalled in the circumstances.
CRENNAN J: The purpose of the recall was for cross‑examination on the inconsistencies revealed by the subsequent evidence, evidence subsequent to her giving of evidence; is that right?
MR CROUCHER: Indeed. That is what it was about. In our respectful submission, where the Court of Criminal Appeal went wrong such that it was simply a manifestly wrong decision, putting aside the matters of principle I will come to in a moment, was, firstly – and this is at application book page 218; it is set out in paragraph 93 of the judgment of the Court of Criminal Appeal – where his Honour said that, as far as he was concerned, it seemed that what the witness was doing on the night of 26 January seems to be peripheral when her version of events unshakably, says his Honour, was that she was not on the boat or anywhere near anywhere like that and that ultimately, he said, there is no realistic prospect of it making any difference if she were recalled.
The Court of Criminal Appeal effectively agreed in that view at paragraph 100 of the Chief Justice’s reasons. But the fact of the matter is it was crucial. The Crown’s case was that she (Sue Neill-Fraser) murdered the deceased. The applicant’s case was that she was not involved and she gave sworn evidence to that effect. The Crown case also, as part of that case, was that she had falsely put in her diary that there was some sort of break‑in or unlawful entry to the yacht on 10 January, suggesting, of course, previous unlawful entries and therefore giving rise to the possibility something has gone wrong on this occasion.
That was said to have been a lie told to the police in order to put them off the trail – to lay a false trail, effectively. So that the fact that DNA of this witness was found on the yacht, on the walkway, was a very important consideration in the first instance because it pointed to a hypothesis consistent with her innocence, namely, that someone else was involved, or at the very least someone else had been involved in an unauthorised entry.
CRENNAN J: What was the expert evidence about the DNA?
MR CROUCHER: The expert evidence was that it could have got there by either transference or, of course, by the usual way, the more probable way. Now, of course, the expert said I cannot assign probabilities to these things, but again having regard to the burden of standard of proof even on that evidence, which it was a bit surprising given the way DNA is usually relied on by the prosecution, there is still the hypothesis consistent with innocence that it was deposited there by the girl’s presence.
In the following, does Crennan J fail to recognise the circumstances and context of the ground of appeal?
CRENNAN J: The Chief Justice’s point is an important one, though, is it not, in the context of the Chief Justice below taking a view that questions could have been put to Ms Vass but she was asked very, very few questions. Defence counsel was in a position to put further questions to her.
MR CROUCHER: But he was not armed with this further information that showed, on another view of things, her true whereabouts, which were different from those which she had told the jury and to the extent that that further cross‑examination would have affected her credit and therefore her denial of ever being on the boat that was very, very powerful information relevant to the applicant’s defence, both the defence proper and to rebutting the Crown’s submission or assertion that she had somehow bodgied up her diary and sought to lay a false trail by putting in an intrusion on 10 January.
In the following, Crennan J raises a matter not before the Court: what is the relevance?
CRENNAN J: There was a lot of evidence, was there not, about seacocks and pipes being cut and whoever scuttled the boat must have had intimate knowledge of ‑ ‑ ‑
MR CROUCHER: There was that evidence, but that is not in issue, your Honour. That is just part of the circumstantial case.
In the following, French CJ speculates about potential witness evidence … and then puts the respondent’s (incorrect) position that the defence could have recalled the witness, but Croucher reminds him…
FRENCH CJ: Just going back to his Honour’s ruling at 54, he is deciding it on the basis which would seem to be informing the exercise of a discretion that what she is likely to be able to contribute if recalled does not merit the making of a direction that she be recalled.
MR CROUCHER: Well, it is true enough that his Honour does, but we say he is manifestly wrong.
FRENCH CJ: Well, you say that he is wrong in his characterisation?
MR CROUCHER: Yes, that is right.
FRENCH CJ: That is, the significance of her evidence?
MR CROUCHER: Indeed. Secondly, he is wrong in that he fails to advert to the point that I made before that, having only just previously in the order of things in considering this application ruled that it was now hearsay what Detective Sinnitt had said, there was no longer any admissible evidence before the jury as to her movements at that time. As I say, the only way that could get before the jury, realistically speaking, was to ask the witness herself and he was denied that chance.
CRENNAN J: It is put against you in the respondent’s submissions that you have not proffered any reason why Ms Vass could not have been recalled by the applicant and leave sought to cross‑examine.
MR CROUCHER: Yes, that is said and that is not a submission which should be accepted, with respect. The fact of the matter is Apostilides is a case like that itself. Armstrong in the Victorian Court of Appeal is the same sort of thing. It is no answer to say that when the Crown had a duty to call someone that the defence could have done it themselves. That is the first point. But the second point is that what his Honour the learned trial judge was doing was considering it in the broad. He was saying this witness is not allowed to be recalled. That is what he was saying. It would have been in defiance of his Honour’s ruling for defence counsel to have then sought to have called the witness.
In the following, does Crennan J refer to aspects of some circumstantial evidence as ‘strong’ when they are actually weak?
CRENNAN J: There were some strong aspects of the circumstantial case, were there not, not only the evidence about the scuffling, but evidence in relation to a female figure being in a dinghy about the relevant time, evidence about – as I understood it anyway – the applicant having a conversation with another person about somehow dealing with her brother on a very similar basis?
Mr Ellis was then called to respond:
MR ELLIS: The case against the accused was not a mere circumstantial case. It was a very rich circumstantial case which involved the sheeting home to her of intimate knowledge of the vessel which was attempted to be sunk after the murder of the deceased. The removal of the body of the deceased, motive – there was quite a deal of evidence of motive, of the relationship being over and, as was accepted by the trial judge in sentencing, a financial motive. There were lies, not just mistakes but provable lies, told by the applicant as to her whereabouts.
Sorry for the interruption, but there was no evidence whatever concerning the removal of the body. The other matters Mr Ellis raises are also in contention and do not provide any probative evidence of the guilt of the accused – nor are they germane to this application.
FRENCH CJ: How does the strength of the case against her meet the particular concern that is raised on the application?
MR ELLIS: In my submission, whenever it is raised that there is new information there has to be a qualitative assessment carried out as to what effect that will have. That was done in Mallard; it was done in Fleming. It is only in the cases where you can say procedurally, like perhaps Apostilides was, there was not a fair trial or a trial according to law that a qualitative assessment is not carried out, although, even in Apostilides it was carried out. This is all the Court of Criminal Appeal has done and it is all the trial judge did.
The trial judge says what difference will it make to know that this person to whom one swab of DNA can be traced – what difference does it make to know where she was on that evening? What difference does it make when she is a homeless young person with none of the specialised knowledge exhibited by the murderer of Mr Chappell? No connection with Mr Chappell; no means to operate the tender that seems to have gone out to the yacht and back again in order either for him to be murdered or his body to be disposed; indeed, nothing else to connect her or make her a remotely possible suspect except for the presence of a swab of DNA, which is, contrary to what my learned friend has tried to say, no more explicable by her being on the yacht at any time than being off it.
Moreover, it is dressing it up to say that her whereabouts is powerful on the night in question when the fact is that she was never at this address, apparently, for five nights and not thereafter. She is a young person with, one would think, a chaotic lifestyle – homeless since 13 – who is asked to recall more than a year later her whereabouts on a date that has no special import for her, unless she was guilty. The trial judge has had the advantage of seeing her. She is called in a Basha inquiry and she was bashed – she was bashed by trial counsel. It was put to her most unfairly that she ‑ ‑ ‑
FRENCH CJ: Just a minute. Let us stay with what is relevant to the special leave question. We have read all the trial judge’s comments and so forth.
MR ELLIS: That is relevant because there is also a question of the interests of justice involved in the recall of this young girl. She showed herself prone to bullying. She showed herself far too agreeable with propositions that were put, not just in the question of had she said I was not sure when it was put to her but you asserted that you were somewhere else but also it was put to her in a steering way, “You could have said to the police I wasn’t on the boat”. She said, “Yes”. “But you didn’t, did you?” She agreed with that. But the fact was when the file was produced that she had said that to the police. She had spoken to the police. She had denied her whereabouts and yet she agreed that she had not.
Now, that could not have been put had the material been – it could not have been ethically put had the material been disclosed. So there is a real problem in the interests of justice. Fleming itself realises or acknowledges – the case of Fleming acknowledges – the question of prejudice to the witness. Here was a witness it was sought to bring back in order to give her that sort of cross‑examination again, in order to bully her, in order to get her to agree to propositions that she ought not to have agreed to.
In my submission, the trial judge may well have taken that into account – taken into the account the nature and tone of the cross‑examination which had already taken place. The core evidence was, despite that propensity to be bullied, 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. (Her DNA was evidence that she was on the boat.)
FRENCH CJ: The question is whether the defence was deprived of the opportunity to elicit evidence which might have been supportive of a hypothesis consistent with the innocence of the accused.
MR ELLIS: It would only work on the basis in an unfair way. Through the written submissions of my learned friend it is asserted that the witness had lied to the court about her whereabouts. There is just no basis to say that. (ED: except the evidence that police had uncovered) You can see from that the tenor of what would have been in court. A young girl says, “I’m not sure, I’m homeless and have been since 13, I’m confused”. “You have lied”.
The question of break‑ins was, in my submission, a furphy.
In my submission, there is no argument that there was an improper failure to disclose such as might trigger some consequence. There is simply no evidence that on a qualitative assessment of what might have been produced you have anything but my learned friend saying it was powerful, it was powerful. There is a series of questions posed which, I make the point, are in the main inadmissible questions, but in any event they go in a series that seem to depend on some sort of positive answer. Maybe one would have been given, maybe not, but it is surely incumbent, in my submission, on the applicant in this Court and in the court below to show that it is more than a mere fanciful possibility that on the question of whether she had told her institutional accommodation where she was going to be, she told them the truth. That is not powerful evidence, in my submission. That would not advance any case. But what it would do was given the spectacle, yet again, of a young girl being bullied by counsel in a serious trial.
Mr Croucher rebutted all that:
MR CROUCHER: Your Honours, firstly, our learned friend says that where the witness was on that night was not relevant. Plainly it was relevant both in terms of the fact of where she was and, secondly, insofar as she might be thought to have lied or told untruths about her movements, that was relevant to her credit and therefore in both ways relevant to the applicant’s defence and to the very point my learned friend was talking about a moment ago about the so‑called lies about break‑ins – very important.
Secondly, he said that the DNA being deposited as it was on the boat was no more explicable as to presence than it was elsewhere. That is not to the point. The point is the Director’s own witness conceded that it was possible that it was deposited there in the usual way. That is a reasonable hypothesis, a starting point. The onus of proof is on the Crown, not on the defence.
Thirdly, another unfairness in all of this is that, extraordinarily, in the re‑examination of Detective Sinnitt by my learned friend, despite the judge having declined to allow the witness, Ms Vass, to be recalled, my learned friend asked whether or not Detective Sinnitt had been told anything about the witness’s movements by her around the relevant time and he said yes and then gave a hearsay answer about her possibly being in Goodwood. The point of that was it was designed to explain in some sort of “innocent fashion” as to how her DNA might have got there, that is to say, after the murder. That in and of itself just shows how unfair this trial became because of the failure to recall the witness.
This is a case that really requires a grant of special leave so that the principles concerning a failure to recall a witness in circumstances where there has been a failure to disclose the material until afterwards need to be considered, and how it fits with Apostilides, how it fits with Grey, how it fits with TKWJ and related cases. What is more, there was a fundamental miscarriage of justice in this case. This applicant was denied, if you like, procedural fairness in meeting the Crown case because her counsel was not armed with very relevant information, relevant to her defence, until after the witness had gone, and the judge would not allow a recall.
CRENNAN J: 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.
FRENCH CJ: I agree with that order.
(We arrive at this analysis without reference to hindsight.)
Contrary to the decision, with respect:
1 – the applicant was indeed denied an opportunity to produce evidence by being prevented from recalling Vass
2 – it was a point of substance which could well have affected the verdict because her presence at the crime scene was foreshadowed by the discovery of her DNA; recalling her would have been at least an opportunity to have her cast light on what happened
Readers are welcome to comment, of course, but please keep comments respectful of the court and all parties (including other readers).