Andrew L. Urban.
Legal errors and mistakes in the majority judges’ reasoning in dismissing Sue Neill-Fraser’s latest appeal against her murder conviction further disgrace Tasmania’s legal system, bringing to six the judges in this case to have contributed to a catastrophic failure of the justice system. (Trial: Blow J; first appeal: Crawford CJ, Tennent & Porter JJ; second appeal; Wood & Pearce JJ)
Reminiscent of dissenting remarks by Justice Weinberg in the Pell appeal, which was echoed by the High Court 7 – 0 in Pell’s favour, Justice Estcourt’s dissenting remarks in the Sue Neill-Fraser appeal just concluded, put him at odds with his two fellow justices on the bench. So did Weinberg’s. Just goes to show, it’s not the quantity but the quality of appeal decisions that matter. (In Pell’s case only the other two Victorian appeal judges got it wrong … the Sue Neill-Fraser trial judge is included in this 6-count because of his contribution to the wrongful conviction (in our opinion) by allowing prosecutorial speculation, disallowing the recall of a key witness and by making prejudicial remarks.
Estcourt’s judgement carries significant weight by coming from the very bench which heard the Sue Neill-Fraser appeal.
The dissenting judgement also raises some uncomfortable questions (see below for extracts): how can the majority decision be so dramatically at variance from the dissenting reasons? (Yes, like in Pell…) Does all the variance stem from a fundamental misunderstanding of the relevant legal precedents … or from a single adherence to the mistaken belief that the trial provided “overwhelming evidence of guilt”? Even without the dissenting judgement, that view is open to challenge: what constitutes “overwhelming evidence” in the Crown’s case?
Six judges have been involved in what barristers, lawyers, legal academics and others consider this a miscarriage of justice. No wonder it is often compared to the Lindy Chamberlain case, where parallel flaws were present from the poor investigation and flawed forensics to the trial and even the High Court found against her by 3:2 – before the final exoneration for her and shame for the rest…
Our confidence is quickly undermined: early in the reasons for judgement (par 56 of 544), Justice Wood refers to the appeal judges having “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.” The jury in Sue Neill-Fraser’s trial did not go on board the Four Winds (see page 2 of the transcript). They should have, of course.
The 2010 trial of Sue Neill-Fraser was a legal train wreck, as we have frequently reported, and material that has emerged since has made it abundantly clear that the circumstantial evidence against Sue Neill-Fraser is unsustainable, while evidence pointing to other persons of interest is plain for all to see … now that it has been dragged to the surface. This is possibly the only murder where the whole world knows that the woman convicted is innocent, the rule of law was breached multiple times in seeking her conviction and yet she is still in jail after more than 12 years. Never having had a chance to hug her grandchildren, her incarceration has caused not only personal and family pain but public outrage (eg 26,600 + signatories to a petition of support, many letters to the Editor in the Hobart Mercury, eg December 6, 2021) .
This appeal was the first made pursuant to amendments to the Criminal Code (Tas), in the form of s 402A, which came into effect on 2 November 2015.
The fight for justice will not cease, her supporters promise. The reputations of those six judges, two DPPs, several senior police and the Attorney-General (for inaction) will not survive this wilful trampling the rule of law if Justice Estcourt’s reasons are echoed by the High Court – if they were to grant leave for an appeal.
The prospect of an innocent person being convicted of a serious crime represents a catastrophic failure of the legal system.” The Chief Justice of England, Lord Igor Judge (1 October 2008 – 30 September 2013)
A few layman’s preliminary observations on Justice Wood’s reasons (in red), followed by extracts from Justice Estcourt’s reasons :
Justice Wood on occasions appears to be making excuses for ‘the Director’, eg:
240 Mr Grosser’s evidence: the Director took some liberties with the evidence, or perhaps more precisely with the absence of evidence. I am not suggesting deliberately so.
The Director painted generalised scenarios which had not been explored in the evidence.
The Director’s scenario strayed away from the evidence into conjecture.
241 The misleading quality of the scenarios – it presented circumstances as giving rise to secondary transfer which had not been canvassed in the evidence and if they had been, would have been heavily qualified. It made it seem that any number of circumstances may feasibly give rise to secondary transfer when that had not been the subject of evidence.
(Does that mean the jury was misled?)
242 This lack of evidence for generalised scenarios painted by the Director was apparent at the trial, and if the Director crossed the line [not an assertion that he did?] in terms of a prosecutor’s duty, and in light of the “great trust” that jurors have in prosecution counsel, any unfairness, if it arose, [not an assertion that it did?] could have been cured at the time of the trial or could have been the subject of the first appeal.
[Isn’t the whole point of a second appeal to deal with unfairness which has not been properly dealt with at trial or on a first appeal?]
318 The jury need not have decided whether Ms Vass’s DNA was the result of a direct deposit or secondary deposit in order to have found the appellant guilty. It was entirely open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt and to regard the State’s case that the appellant was the perpetrator as an overwhelming case. If the jury made a finding and reached a view about the most feasible causal mechanism for the deposit of Ms Vass’s DNA, neither mechanism was inconsistent with the appellant’s guilt. [1 – If so, why was the prosecution so adamant to argue that it was a secondary deposit? 2 – If the jury reached the view that it was a direct deposit, it follows that Vass was at the crime scene; why would the jury not consider that to be a vital fact with profound implications for their verdict?]
Justice Wood Conclusion:
319 For the reasons I have given, the evidence of Mr Jones is not fresh, it is not compelling and taking it into account together with the evidence given at the trial, there has not been a substantial miscarriage of justice. The appellant has not established that there is a significant possibility that a jury, acting reasonably, would have acquitted the appellant had the evidence of Mr Jones been before the jury at her trial. I would dismiss the appeal. [See comment above]
Justice Estcourt came to a different conclusion:
The law:
426 The relevant provisions of the Code are set out earlier in my reasons. The question may be distilled as one of whether Mr Jones’s evidence concerning the nature and quality of the DNA sample taken from the walkway of the Four Winds on 30 January 2009 and as to the likelihood of its secondary transfer, is fresh and compelling evidence within the meaning of s 402A of the Code, and whether if so, that evidence demonstrates a miscarriage of justice.
427 In Van Beelen v The Queen [2017] HCA 48, 349 ALR 578, the High Court confirmed that the relevant test for a substantial miscarriage of justice in a case such as the present, is the test laid down in Mickelberg v The Queen (1989) 167 CLR 259. That 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. Counsel on the present appeal were agreed that the Mickelberg test was the test to be applied by this Court.
Is the evidence fresh?
430 The appellant relies for this submission on what was said in a joint judgment of the South Australian Court of Criminal Appeal in R v Keogh (No 2) [2014] SASCFC 136 at [102] namely:
“An applicant bears the onus of establishing that evidence relied upon for this purpose is fresh. The question of whether evidence was adduced at trial for the purpose of 353A(6)(a)(i) may be determined by having regard to the transcript of evidence at trial. The requirement in section 353A(6)(a)(ii), that the evidence could not, even with the exercise of reasonable diligence, have been adduced at trial, requires an objective assessment of what the applicant could reasonably be expected to have done in all of the circumstances leading up to and including the trial.” (Emphasis added.)
431 The appellant also relies on R v Drummond (No 2) [2015] SASCFC 82 at [174] per Peek J, where his Honour said, after reviewing the common law cases as to fresh evidence:
“Of course, the present application is made pursuant to s 353A of the Act and the question of whether the evidence is fresh remains to be answered. However, the above authorities are relevant to that question because, when assessing whether defence counsel used reasonable diligence, one must take into account that counsel is entitled to assume that the prosecution will disclose to the defence relevant evidence and material and, a fortiori, that the prosecution will not lead false or misleading evidence as part of its case. Further, when making an assessment of whether there was reasonable diligence, the court will extend to an accused great latitude. (Emphasis added.)
432 In my view, the relevant opinion evidence of Mr Jones summarised at [34 (a) – (g)] of Brett J’s reasons on the leave application set out at [425] above must, in “the circumstances leading up to and including the trial”, be regarded as fresh evidence. It is not suggested that the tests carried out by Mr Jones, including having recourse to the electropherogram, could not have been conducted in 2009. However as I apprehend it, recourse to the electropherogram was not routine and, in my view, it could not reasonably be expected to have been sought out by the accused in all of the circumstances.
433 Notwithstanding the lack of any evidence from trial counsel, it is evident to me from the way Mr Grosser’s evidence was led, and objected to, and subsequently cross-examined, that his opinion had not been disclosed to the appellant up until the time that evidence was introduced at trial. Extending
“great latitude” it could not, on an objective assessment, fairly be said that “with the exercise of reasonable diligence”, Mr Jones’s evidence could have been adduced at the trial on behalf of the accused.
434 I accept the submission of Mr Carr in his closing address to this Court, namely:
“So, when one extends great latitude to defence counsel, looks at the context of this trial with its complexities, its volume of material and so forth, and the stage of the trial when this evidence was led without disclosure, one readily reaches the conclusion, in our submission, that evidence answering or addressing that evidence that was led by the director is fresh.”
435 In my view the evidence is fresh within the meaning of s 402A(10)(a) of the Code.
Is the evidence compelling?
437 I will turn in due course to the transcript of all of the evidence of Mr Grosser given at trial that might have enabled those submissions to have been fairly made, but for present purposes I note, as observed by Brett J at [35] of his reasons set out above, that the principal difference between Mr Grosser’s evidence at trial and Mr Jones’s evidence on the leave application, was that Mr Grosser would not be drawn on an assessment of the likelihood between primary and secondary transfer, whereas Mr Jones was prepared to say that although it depended on the surrounding circumstances, the nature of the DNA profile was not typical of secondary transfer.
442 To my mind, the requirement, as Mr Carr put it for “a concatenation of quite specific circumstances with a very close connection between the picking up of the DNA and its deposit on the deck of the Four Winds” is compelling evidence within the meaning of s 402A(10)(b) of the Code.
443 The evidence is clearly reliable and it is substantial given that it is contrary to the way the matter was put to the jury at trial. That evidence would not have allowed Crown counsel to properly put to the jury that the probability was that Ms Vass’s DNA was simply somehow picked up anywhere in Hobart, by someone wandering around, then getting in a car, driving to the dock and walking onto the yacht. Again, as Mr Carr submitted to this Court, “[t]hat hypothesis, which was the way that the director deconstructed this pillar of the defence case at trial, is simply not possible on what Mr Jones said …”
444 Finally, on this issue of whether the evidence is compelling, I am satisfied that in the context of the issues in dispute at the appellant’s trial, it would have been highly probative of her case, based as it was on a contended hypothesis that Mr Chappell’s death was caused by another person or persons boarding the yacht around the time of his disappearance. It would have cast significant doubt on Ms Vass’s denials that she had ever been on board the vessel.
Justice Estcourt Conclusion
459 Having regard to the evidence at the accused’s trial and the closing addresses of counsel and the learned trial judge’s summing up, I am of the view, after taking into account the fresh and compelling evidence of Mr Jones, that there has been a substantial miscarriage of justice.
461 Had Mr Jones’s evidence been before the jury, the Crown case could not have been left to the jury with the reasonable hypothesis raised by the defence as to Ms Vass being present on the yacht trivialised as it was, as a “red herring”. Had the jury been exposed to expert evidence that secondary transfer of Ms Vass’s DNA on the sole of someone’s shoe would have been a “very rare occurrence” requiring a very specific and immediate concatenation of steps …
463 In my view, on an objective assessment of the record, and recognising the limitations in doing so, after taking into account the fresh and compelling evidence of Mr Jones, there is a significant possibility that the jury, acting reasonably, might have acquitted the appellant had the fresh evidence been before it at the trial.
465 I would uphold the appeal and quash the appellant’s conviction for murder.
NOTE: further legal analysis to come
Trial: Blow J
1st appeal: Crawford CJ, Tennent & Porter JJ
2nd appeal: Wood J, Estcourt J, Pearce J
In the cartoon above, we see the seven Tasmanian Supreme Court Judges who have delivered judgement on Susan Neill-Fraser over the period 2010-2021:
Justice Estcourt (standing)
Chief Justice Blow (seated far right)
Retired Justice Tennent (seated front left)
Justice Wood (seated front right)
Retired & now Acting Justice Porter (seated back left)
Justice Pearce (seated back middle)
Retired Chief Justice Crawford
TRIAL:
Justice Blow: the judge at the trial at which Sue Neill-Fraser was convicted
1st APPEAL:
Justice Crawford CJ: – his decision was to dismiss the appeal
Justice Tennent: her decision agreed with Crawford CJ – without offering argument.
Justice Porter: his decision also dismissed the appeal; gave partial dissenting analysis.
2nd APPEAL:
Justice Wood: her (majority) judgement dismissed the appeal
Justice Estcourt: ‘dissenting’ judge whose minority judgement was for a retrial
Justice Pearce: siding with Wood J, his (majority) judgement dismissed the appeal
DISCUSSION
The cartoonist has created a classroom scene.
There is a blackboard on which is written ‘Judging 101’.
Justice Estcourt is standing, as the classroom teacher, pointing at the board.
The two women in the class (Tennent & Wood) are placed at the front.
Three men (Porter, Pearce & Crawford) are at the desks at the back.
(Chief) Justice Blow is sitting on his own, though seems to be looking over towards the three at the back.
The caption – Back to Basics – and the Judging 101 written on the blackboard suggest that these six, seated judges have been sent back to relearn how to be judges.
Justice Estcourt (who in his actual judgement in the 2nd Appeal found in favour of allowing the Appeal and sending Sue Neill-Fraser for retrial) is giving a lesson to the other 6 judges who have all – at different hearings over the years– delivered judgements against Susan Neill-Fraser … judgements which have kept her imprisoned since her arrest in August 2009.
Implicit in the cartoon is a rejection of the judgements of: the original trial and of the first and second appeals.
Also implicit, is the notion that these six judges should learn from the reasoning of Estcourt J …
Justice Woods reasons seem wishy washy and to say the DNA was irrelevant is beyond belief. If’s and but’s regarding the prosecutor, but maybe the clue to continue is in 242 “in light of the “great trust” that jurors have in prosecution counsel, any unfairness, if it arose, could have been cured at the time of the trial or could have been the subject of the first appeal.”
It’s extremely sad but there is a comedy of errors in this whole process.
Correction Sir Grant Hammond
Teina Pora’s conviction was overturned because it “resonated” the causative factor in his false confession was undiagnosed FASD.
Judge Stephen Estcourt’s words “resonate” because the causative factor in Sue’s wrongful conviction in his correct opinion, is the hard evidence was not treated with RESPECT but trivialised as a “red herring”.
Judge Wood’s words expose that what he asserts is true, and I believe him and not her.
The TRUTH is simple in both cases.
Resonance has been shown to cause bridges to collapse.
Marching troops of soldiers will often break cadence when crossing a bridge to prevent a resonance collapse.
The most famous example of resonance was the Tacoma Narrows Bridge in Washington State (also called Galloping Gertie).
In 1940, just months after it’s completion, winds in the Tacoma Narrow matched the bridge’s resonant frequency and caused the suspension bridge to sway uncontrollably.
Within hours the bridge collapsed.
Judge Stephen Estcourt’s words have the resonance to collapse Sue Neill- Fraser’s conviction and the power to rescue Tasmania from their grave embarrassment – it’s inevitable, it’s only a question of when. In the end his intelligence, substance and experience will be rewarded with a knighthood as Sir Thomas Thorp and Sir Gavin Hammond were in New Zealand. He is a prestigious man born of their ilk.
Thanks Andrew for your consistency. Disappointing as the appeal outcome was, it was not ours to decide on. Like most things in life, disappointments can have setbacks, non moreso than for Sue herself. We should however be thinking of tomorrow and the next day and so on. In one sense, Sue has been in a long lockdown, much like those in Covid quarantine but, very much, still without a release date. There are the families on both sides of this latest appeal decision who will spend another Christmas without their loved one’s. We should all be thinking of them as we settle down to another Christmas season, family visits again for many, the shopping to get and that last minute gift and so on. Yes, life will go on and for what it is worth we all need to understand each other’s contribution here and the investments we have all made to support Sue in our own special ways. We can do no more than our best, not what others expect from us. Some have devoted so much time and energy. Results such as the appeal outcome need time, time to think clearly, time to reset, simply, just time to breath. We must remain as one cohesive group of supporters who believe that justice will prevail, advance each other’s rationale in support of Sue, her family and similarly, the Chappell family to bring this circumstantial nightmare to an end. We now know with New Years Day beckoning upon us where Sue’s thoughts will probably be. Let us all pause for a moment after midnight and be grateful for the life of freedom we enjoy and celebrate it. Thanks to every contributor and Andrew for providing the opportunities to have our say. Christmas wishes all, especially those at the vigil/rally on December 18th in Hobart.🎄
Resolving a 2 to 1 disagreement by the numbers is a trivial way of solving a very serious problem. J Estcourt has raised significant points that must be considered. J Wood’s arguments seem predetermined to believe Grosser rather than Jones (and yet to see how J Pearce handled it, next Andrew?). Estcourt clearly argues why Jones is the more telling.
I’m astounded how legalistic and narrow this is. Only the DNA question was looked at. Surely there is a highly persuasive context. “Beyond reasonable doubt” means there is no other plausible explanation. But there is. Yachts were being robbed at night at that time. We have read about what happened, seen it on television, and heard it on Day 1 of the Appeal! To pretend that context and all its ramifications doesn’t exist is not seeing justice done, it provokes tunnel vision and you only see what tight legal constraints allow you to see. Add to tunnel vision the pressure to see what the Establishment wants to see and you have a whopping Miscarriage of Justice.
John
I would like to say more, but do have to be very cautious. Can now understand why my late uncle, an Attorney-General with a portfolio of Minister for Police and Ethnic Affairs, 40 odd years ago, chose to select a Commissioner of Police from the ACT.
We need more than ever to set up an Innocence Project now the International students (some law students) are coming back into Australia. This is one of the best projects originating from US but links with Griffiths University. No one can stand in its way. I have already drafted a final letter empowering the Faculty of Law at UTAS to initiate it just need to get it sent off.
The Police Commissioner is a public servant. Like any public servant, his performance is regularly reviewed (at least on an annual basis). My understanding is that a Police Commissioner is answerable to a Minister of Police (a politician) whose is answerable to the Premier and the public.
I am pretty sure that your own work during your working life was also regularly reviewed. I don’t know if anyone reviewed your comment before it was submitted. Had I reviewed that comment I wouldn’t have recommended that you submit the first paragraph of your comment to an online blog.
They don’t care whose lives they destroy – just as low as they do not have to admit they got it wrong. We all have known the Police and Judicial System in Tasmania has been and continues to be Dishonest and Corrupt. More frightening – they are still making Legal Decisions – How many other Innocent People are in Prison – How many Guilty people have they released because they are told to.
Andrew you reason out the truth, so needed to right this wrong persecution of Susan Neil Fraser with all you write! Thank you!
I found myself re-reading a few times your summary today. Making sure I did in truth understand Justice Denied! of what you’re post revealed.
As I understand it like the Etter/Selby papers further catastrophic failures of the Tasmanian Justice system.
Justice denied! Trampling on the rights of the innocent!
As laid out above dirt begets dirt?
Denial of truth and Justice for Susan Neil Fraser by the law not acting to the law!
In simple terms Susan Neil Fraser is not guilty of the bashing to death of her life long partner Bob Chappell. A man loved by Sue dearly!
How must it be that this was done to her in the proposed name of Justice? How warped!
1) 26,600 signed (named ordinary people) a serious petition ‘Sue not guilty’., Eminent persons such as yourself, (and others prominent in the search for truth in justice for us all) write exceptionally reasoning out the why of Sue’s innocence? All seekers of the truth stating the truth! Plus thousands globally agree from books written and researched files, Australian TV and ‘The Discovery Channel’ channelling an Australian film a nd podcasts! With the eminence of Senior Legal council and forensic scientists positive Susan Neil Fraser was sent to a damming life of false imprisonment victimised and demonised by Justice Denied?
2)It appears dishonesty of misdirection – misleading of Investigating Tasmanian Police – DPP(S) – the seeming of Six Justice’s findings is wrong and perverts justice as Sue was fitted up and verbally dumped upon?
3) The consequence of the fiction driven wrench of total dishonour!
The DPP(S) fictitious made up vicious weapon “A HEAVY WRENCH”
Sue did it supposedly from the fiction described as she stood before the jury whilst on trial for murder!
Proposed by the mind-set Prosecuting DPP now shown up bent on framing Sue!
‘ A WRENCH did it! ‘
‘THAT NEVER EXISTED? ‘
This time the Wrench appeared made-up by the DPP as he prosecuted Sue! Not at all like the Chamberlain Baby Matinee defining the dingo of reality!
There, this especially new and shiny big wrench sat glueing the Juries eyes to it!
The large WRENCH under the hand of the persecuting DPP made sure to be insinuated in front of the Jury.
One wonders what was in the mind to mislead and defile the Supreme Court by the DPP with the lie Sue was proposed to bloody well murder Bob?
Was the DPP desperate for a conviction at any cost?
Synonyms for fictitious bringing in of a non existent murder weapon perpetrating in simple language a fraud upon Sue:
apocryphal – false; bogus – fanciful; counterfeit – fictional; fabricated – imaginary – feigned…fig-mental..hyped up…illusory..trumped up etc ‘
Denotes the framing and demonising of Sue so immorally as well aided to by the caldron of too many others of Tasmanian Police – DPP(S) Justice Department – Judiciary and State Politicians?
4) Resulting in the deliberate dishonour of persecuting Sue; stealing hers and her families lives over a decade plus! Trampling Sues human rights.
Yet tragically Bob’s murderers walk free! Such pain and suffering for Sue and her family!
WHY FOR US ALL IS THIS TASMANIAN JUSTICE?
I say a warts and all type ‘NSW Wood Royal Commission’ is a must as Tasmanian INK does not sit well systemically over years of destroying lives to guilty conclusions in frame ups!
As known by its many victims of Tasmanian INK! For there are many!
Gutted by the Appeal outcome! When will they ever learn?? We just have to keep fighting on. Well done Andrew, for shaking the judicial tree.
Rosemary I am confused by your comments. Who are you referring to as the amateur commentators making theories & interpretations on various forums online? Scientific evidence is very complex so it’s understandable that members of the public may have arrived at incorrect conclusions. Social media if full of incorrect conclusions.
Yes too many Fiona including supposed experts reporting the science wrongly as well.
Rosemary I am confused by your comments. Can you provide clarification of who you are referring to as amateur commentators that are promoting theories & interpretations on various online forums?
You have probably observed them and I will refrain from naming to avoid obsessive responses pushing certain incorrect points over and over again. Justice Escourt has used particular and careful language to make his points leading to his conclusions. I have appreciated his clarity. Until there is a proper independent Inquiry established pointless debates of misinformation will continue. Certain individuals who need to promote themselves cloud the way to finding out the truth. That will take time and patience. Future priority..CCRC and/parliamentary Inquiry or Royal Commission. Any action to further truth finding is very welcome in my book.
“Certain individuals who need to promote themselves” Rosemary? From the earliest days of my interest in this sad case I have pondered that particular point, and still do.
I’m lost for words at the latest call. Unreal.
I find in my reading of Justice Escourts conclusions with regards to Mr Jones expert DNA evidence that regardless of the 2:1 verdict that this alone should negate any of the theories and interpretations that amateur commentators have made in various forums online. They should be corrected. One step towards the truth with many more to come.