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.