Sue Neill-Fraser appeal judges’ mistaken view

Andrew L. Urban.

In the reasons published by the judges in the Sue Neill-Fraser appeal, they had to have considered “all of the evidence at the trial. This requires consideration of the transcript of the evidence at the trial and also exhibits tendered on the trial, and the view of the scene that was undertaken by the jury on the first day of the trial.” But the jury was never taken on board for a view of  Four Winds

The appeal decision reasons are set out in a 116 page, 544 paragraph document; the judges state the basis for the appeal and the process, including, at par 56; “The evidence relied upon as fresh and compelling evidence is the evidence of Maxwell Jones, given at the hearing of the leave application before Brett J, two reports by Mr Jones and an exhibit, an electropherogram. This evidence is to be considered in the context of all of the evidence at the trial. This requires consideration of the transcript of the evidence at the trial and also exhibits tendered on the trial, and the view of the scene that was undertaken by the jury on the first day of the trial.”

A reasonable understanding of ‘view of the scene’ in this instance is that the scene is the crime scene, not a general view of the yacht moored at the waterfront. (“That’s not ‘the scene’… that’s the scenery,” as Eve Ash quips.)

The jury in Sue Neill-Fraser’s trial did not go to see the crime scene on board the Four Winds, as shown on page 2 of the transcript, where the court is discussing places for the jury to view:

HIS HONOUR: Is – is everything on this list able to be viewed from the land?

MR GUNSON SC: Yes, no one needs to go to sea, your Honour.

At the very least, such an error suggests that the judges were not fully conversant with the case – a sense that is reinforced by even a cursory glance at the document.

More analysis to come.

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24 Responses to Sue Neill-Fraser appeal judges’ mistaken view

  1. donald says:

    Could you help me, Andrew, with these queries:
    1 when Megan Vass repudiated herearlier statement that she was on the yacht, could not Richter QC have made an immediate application to further examine her.

    2 If such application was made would not the Court have had power ( over its own conduct of the proceedings, either by statute or certainly, the common law), to (a) grant the application. and
    (b) direct / order Ms Bass to answer.

    3 Could not Richter have made immediate application to call evidence from Megan’s friend , Andrea, ( she was within the precincts of the Court, so enforceable without subpoena) to testify to Megan’s statements confirming to her that
    (a) she was on the yacht
    (b) there were men there who struck Bob Chappel
    (c) she was, on the one hand, fearful of her safety if she testified to that truth, but increasingly sorry for the suffering of the wrongly imprisoned Susan Neill-Fraser if she didn’t.

    4 Finally ( for the moment), is the Tasmanian Judiciary , unlike the rest of Australia, entitled to disregard the long held principles set out by the High Court in Peacock v R (1911) and applied many times since, which demands the Courts’ acceptance of ANY reasonable hypothesis consistent with innocence, notwithstanding any other hypotheses consistent with guilt

    5 Was the trial judge (now chief justice) asked to include that principle of the criminal law to be explained , in his summing-up, to the Jury ( or was he too concerned to explain the Hypothesis of the Wrench)

  2. Peter Gill says:

    The appeal write-up can be found at https://www.supremecourt.tas.gov.au/wp-content/uploads/2021/11/Neill-Fraser-CCA-Composite.pdf.

    In paragraph 252, Justice Wood claims: “If it was not blood but another biological substance, it would not have reacted to luminol ….”. Oops. Luminol reacts to blood and a variety of biological substances. A lack of understanding of the forensics has led the Judge up the garden path. A crucial error which led to an incorrect conclusion by the distinguished Judge. Bad luck for Sue.

    If anyone wants to look at the 116 page document, pages 61 to 96 are written by Justice Estcourt (with pages 95-96 being his conclusions), pages 97-116 by Justice Pearce (relying on Justice Wood’s material to some extent) and pages 4 to 60 by Justice Wood.

    I couldn’t find any mistakes on pages 61 to 96.

    • andrew says:

      It is hard to believe that a senior judge, on the Supreme Court, could be so uninformed about Luminol. But former DPP Tim Ellis had claimed a similar lack of familiarity with it, according to a letter to the Legal Profession Board of Tasmania in November 2017. In that letter “he also stated, in effect, that he did not understand the nature of luminol testing. This was revealed in the Etter/Selby papers.
      https://wrongfulconvictionsreport.org/2021/08/14/the-riddle-of-the-dpp/

      Is there no professional development system in Tasmania?

  3. Stephen Berry says:

    Hi guys.
    As this case is no longer before the courts then we need to put pressure on the police to reopen the case with the two who we know committed the burglary that went wrong! Bobs body is not in the Derwent it was taken away by the owner of the grey dingy and is buried on his land?
    We also need to now target the government as again they cannot hide behind the courts.
    I will be at the government so guys, pick your target and get stuck in.

  4. Diane Kemp says:

    Sue is innocent and always has been. Lara Giddings excellent interview about the constraints of the court system and the many issues that were failed to be followed up by the initial police investigation needs to be heard. I also believe MV’s words and believe that if she had been given the proper support as a vulnerable witness then the decision may have been very different.
    And so the true perpetrators continue to walk free among us – what a joke!!!
    I will continue to do anything in my power to support Sue and her family and until justice is finally delivered in Tasmania.
    Stay strong Sue.

  5. Keith says:

    Andrew, what is your best guess as to the next step? For a start, I’d like to see 60 Minutes do a follow up and Ch7 show Undercurrent in Tasmania – that might change public sentiment and increase the ground swell of support.
    My question though is more about what the most likely action would be to get SNF out of gaol. Would another appeal or High Court bid take too long? Would a parliamentary enquiry deliver a quicker result?

    • andrew says:

      Too early to say. Sue’s legal team is considering the options. All public pressure via the media is useful – that’s the only thing that can make any difference in a place .like Tasmania

  6. owen allen says:

    I thank Andrew and every contributor to comments.
    I am not well in the head; I can not believe this is happening in Australia in 2021 A.D.
    Although I should, because I have had 14 years of personal experience and know absolutely what it is like. Truly I nearly cried last night for Sue and her family.
    I am happy that one Judge wanted a retrial. I am happy that an ex Premier is supportive.
    I am happy that Andrew and you guys are supporting Sue.
    I don’t want to have a nervous breakdown, so I am going to toughen up and think like
    George “Ferocious” Kambosos jnr. New Aussie World Champion Boxer.
    Great work George, an inspiration for every one.

  7. Rachel says:

    Rejected. Your email address cannot be verified.

  8. David Smith says:

    I hope no one thought that Sue would win the Appeal – Tasmania is open and blatantly Corrupt and once you get into the System they will Screw you forever – no one Wins against the Government – There is only One way to get Change and that is to Change the Government and legislate Open and Fair Laws and have a Honest and Fair Board made up of a Select Group of every day Tasmanians – where Tasmanians can go to get some Justice and a Fair Hearing – The Integrity Commission is just as Corrupt as other Government Departments – They all hide behind this wall of Secrecy and Laws written to protect them – and Legislate One More Law – If a Government Employee is found by the Board to be Dishonest Corrupt or not doing their Job – Punishment – Minimum – 20 Years to Life. They will be judged by the People – and clean out the totally Corrupt Government and Politicians who collect their Pay and hide their heads in the Sand.

  9. Noeline Durovic says:

    Dear Andrew, for the record I must state how well you truthfully give us a simple summary!

    ” at the very least error suggests the Justices were not conversant with the case”?

    Thank you for your life’s works for the innocent…

    On reading through the 116 page CCA document repetition does not give way to truth?

  10. Peter Gill says:

    In paragraph 252, Justice Wood claims: “If it was not blood but another biological substance, it would not have reacted to luminol ….”. Oops. Luminol reacts to blood, urine and a variety of biological substances. A lack of understanding of the forensics leads the Judge up the garden path. A crucial error. Bad luck for Sue.

    If anyone wants to look at the 116 page document, pages 61 to 96 are written by Justice Estcourt (with pages 95-96 being his conclusions), pages 97-116 by Justice Pearce (relying on Justice Wood’s material to some extent) and pages 4 to 60 by Justice Wood.

  11. Rodger Warren says:

    Hi Everyone
    The result in Sue Neill-Fraser’s second appeal changes nothing.
    Sue Neill-Fraser is still innocent.
    Her case is still the biggest miscarriage of justice since the Lindy Chamberlain case.
    Her supporters will never give up.
    Sue will eventually be exonerated.
    The Tasmanian Justice system is still not worthy of the name.

  12. Tom Cairns says:

    From a pragmatic point of view it is possible that the authorities in Tasmania have decided to wait until Susan is eligible to apply for parole. Then they can release her without admitting that she is innocent. Perhaps they hope that everyone will then shut up as in ‘She’s free, isn’t that what you wanted? And besides, we saved a packet of cash in compensation.’ It is the equivalent of a ‘plea bargain’ which could similarly be called a ‘free bargain’.

    • andrew says:

      Your speculation is, I’m sorry to say, fanciful. Sue has made it clear she will not apply for parole: she won’t leave prison unless exonerated. ‘They’ can’t throw her out of prison !

      • Robert Greenshields says:

        Reminds me of the magnificent Major James Francis Thomas, “The Breakers” legal representative following the expedient misuse of the military legal system that led to a firing squad extinguishing the lives of two Australian volunteers as the Boer War concluded. The weight of the injustices affected the Majors health, and eventually wore him down, and, after being struck off as a solicitor, was gaoled in Long Bay for 20 months. He helped other inmates and assisted in enabling those prisoners less educated than himself. An altruistic characteristic he never lost.
        Eventually he was released following instructions from the Attorney General even though he had not erased his supposed contempt.
        Many similarities in the machinations of the courts Sue has confronted, and not just the
        recognised perceptions that predominantly colonial echelon based authorities and stratifications, still control the lives of those bought before them, irrespective of the truth.
        The regressive, comfortable, conforming status quo needs to be rejected.
        Maintain the faith Sue, you are not alone.

      • Tom Cairns says:

        I was not aware of that! Just when I thought my admiration of her could not be any higher. Thank you Andrew.

      • Helen Adkins-Sherston says:

        Andrew,

        No way should she accept parole. Lets all think about an Innocence Project which Griffiths University initiated following US and has brought around people being released from prison with DNA evidence. The Taspol won’t like it. Tassie 50 years behind the times here and still with penal colony mentality will have its first Innocence Project – probably gobsmacked.

        I will be sending off an email (already drafted and overseen by a publisher in Brisbane) to the Faculty of Law at UTAS once my daughter is back enabling me to have a hard copy.

        Keep up the good work.

  13. Robert Greenshields says:

    The population statistics of states and territories needs to be included in the variables enwrapped within the incredible decision making processes we have witnessed in Sue Neill Frasers case.
    Tasmania has a population just above 500,000, and it is supposedly on a par with other states that sustain judicial and governance (irrespective of recognised faults and injustices), with populations in the millions.
    Though not ever entertaining the perception that Taswegians are to be viewed as different creatures, the words of a local councillor I enjoyed conversations with in the past seem somewhat relevant. The point he stressed about the irrational and unfortunate state of the credibility and machinations of the local administration, always returned to the paucity of intelligence and integrity of the local gene pool.
    Given the continuity of the Tasmanian government and judicial community to abstain from allowing what seems to be the honest interpretation of the facts in a transparent and logical manner, my concerns about incredible, questionable, procedural issues seem to swim comfortably and compliantly in the Tasmanian, limited gene pool.

  14. Keith says:

    The A-G, Elise Archer has until now, hidden behind the spurious fact that, as the case was before the Appeals Court, she could not use her powers to intercede in this matter.
    Now that this is no longer the case, we the public must increase the pressure on her to act.
    You can direct message her Facebook account as I have, and remind her of her capacity to right this wrong, perhaps citing the Etter papers recently presented to parliament as new evidence.
    Let’s shame her into acting.

    • owen allen says:

      Believe me Keith, they have no shame, no respect for others, and worse, they feel no guilt. They are beyond redemption, unless they confess.

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