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:
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  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)  SASCFC 136 at  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)  SASCFC 82 at  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  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  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