Legal academic identifies errors in judgement of Sue Neill-Fraser’s failed appeal

Sue Neill-Fraser is now seeking leave to appeal to the High Court to overturn her 2010 conviction for the murder of her partner Bob Chappell, after her 2020 appeal was dismissed 2:1 by the Tasmanian Court of Appeal. Edited extracts from legal academic Dr Bob Moles’ analysis identifies what he perceives to be errors that led to the dismissal of the appeal. 

Editor’s note:
The original analysis is almost 9,000 words, and even our edited excerpts (omitting a summary of the case history) run to almost 5,500 words, but the controversial nature and long history of this case warrants such detail. (Announcing the appeal decision)

Leading judgment to dismiss appeal by Wood J

The unbracketed text represents a summary of the judgment.
Paragraph numbers of the judgment are at the end of each paragraph.

[Bob Moles’ comments on the judgment are contained in square brackets in bold type – he has made minor adjustments to some of the quotes from the judgment to clarify the point being made. Don’t quote them without checking the original in the judgment.]

The trial – forensic examination

Luminol is a ‘screening test for blood’ – it is not specific to blood and can produce false positives. [102]

[It is inaccurate to describe it as a ‘test for blood’. Luminol will respond to over 100 different substances, including common cleaning agents, fish products (significant around boats), paints and many others. It is inaccurate to describe the responses to the majority of materials as ‘false positives’ when they are known and acceptable responses to those materials – there is nothing ‘false’ about those responses. This means that Luminol tests results without an accompanying confirmatory test results should not be admitted in evidence in criminal trials – See R v Keith Smart (Ruling no 1) [2008] VSC 79 and the exclusion of Luminol test results – discussed in Moles research report on SNF case at p 5. Also the discussion of the IRA bombing cases in Sangha, Roach and Moles, Forensic Investigations and Miscarriages of Justice, Irwin Law, Toronto, 2010, chapter eight, Forensic Science Issues – “the judges referred to the conduct of the expert witnesses as ‘analogous to fraud’. They had put forward the results of presumptive tests as if they were conclusive of the issues and had failed to properly articulate the reasoning processes involved”.

The overturning of the convictions in these cases caused such a scandal that they led to the establishment of the Criminal Cases Review Commission, described as one of the most significant reforms to the criminal process in British criminal history. There is no doubt that similar errors have occurred in the SNF case]

It luminesces if blood is present [102]

[This is inaccurate. Luminol contains inherent luminescent qualities, and will ‘luminesce’ if there is overspray – and no material to respond to. The witness said she sometimes used ‘extra spray’ for the photos]

The strength and nature of a reaction may indicate whether it is a true positive or false positive reaction. [102]

[The witness actually stated that she could determine whether the luminol was responding to blood or some other substance by ‘the duration and quality of the glow and sparkle’. There is no scientific support for this proposition. If it were true luminol would no longer be a ‘preliminary screening test’ but a ‘confirmatory test’ – adding considerably to the value of the company which manufactures it. Objective specifications of ‘duration’ and ‘quality’ would need to be stated and recorded so that findings could be independently confirmed. Of course, none of that was done here.]

The other screening test used was the Hemastix test (HS) [103]

[Similar comments apply as above – noting that the HS test is a screening test and not a confirmatory test, so that the results obtained in this way should not be admitted in evidence without confirmatory test results as mentioned above]

The witness reported red/brown staining on steps to the wheelhouse, at the entrance to the saloon, near the wheel, on the panel by the entrance and inside saloon, on cushions and bulkhead near seating and panel above it. Some were positive to HS and other ‘numerous areas’ were positive to luminol. [103]

There were numerous luminol positive areas on walkways, cabin roof, cockpit seat, floor, number of areas inside cockpit and near rope and winch. There were 8 areas on the deck and 3 in the cockpit which responded positively to luminol spray. [104]

[Not quite consistent with prior statement of ‘numerous’ responses in these areas, there was in fact just one area in the cockpit and one on the deck which gave a DNA profile linked to Bob Chappell.]

One luminol positive area on the deck gave a DNA profile of an unknown person (area 11) which was later matched to Meaghan Vass. [105]

The report said, ‘Luminol positive area 11 (possible drops). Negative with HS Screening test for blood’ [107]

The witness said “possible” drops means either a stain that is in the form of a drop or it was a drop from her spray bottle of luminol. [109]

[This is clearly unacceptable – the witness is saying that her report includes findings of ‘possible’ traces of ‘blood’ – which may amount to nothing more than the fact that she was dripping luminol from her spray bottle and when subjected to a further spray would luminesce and appear to be a positive response ‘to blood’. This means she couldn’t distinguish between findings ‘of blood’ and her contaminations of the potential crime-scene by her dripping of luminol at the scene. See Moles report on SNF appeal at p 20]

[I had completed a detailed report on the transcript of the trial in which I explained that the vast majority of McHoul’s evidence on luminol and the test results for blood should not have been admitted at trial. It was in the IRA bombing cases in the UK where forensic scientists had used ‘preliminary screening tests’ (for nitro-glycerine) and informed the court that the results indicated that those tested had been involved in bomb-making. It was subsequently disclosed on appeal, some 20 years later, that common substances such as boot polish, nitrites in common soaps and the plastic backing on playing cards would each give similar positive results. When we published our book Forensic Investigations, Irwin Law Toronto, 2010, a Justice of the Canadian Supreme Court referred to it in a prestigious lecture in Edinburgh stating that one of the achievements of the authors was that they had identified common causes of wrongful conviction in Australia, Britain and Canada. One of them was ‘the use of preliminary tests as conclusive evidence’. Little were we to know at the time that the same mistake was about to be made in the SNF case in Hobart.

A copy of the above report was sent to the Director of the Forensic Science Centre in Hobart in 2014. We were astonished to receive a response from the Asst Police Commissioner which simply stated that she had confidence in the service being provided by FSST, and asked us not to correspond further about the matter. The Royal Commission reports in the cases of Splatt and Chamberlain had made it clear that forensic services in Australia should be ‘operationally independent’ of the police services. Knowing that, I was shocked to find that senior police officers in Tasmania were providing secretarial support to the Director of Forensic Services when asked to respond to matters on scientific issues.

The important point for present purposes is that The Director of FSST and Senior police officers in Tasmania were put on notice that the forensic evidence which had been given at the SNF trial was clearly incompetent, false and misleading and therefore should have been held to be inadmissible in legal proceedings. This means that in any further legal proceedings on these issues, they (and the prosecution acting on behalf of the Crown) had a duty to make appropriate disclosure of those errors to the court. Clearly that has not been done in this case. (As) this matter is to be the subject of an application for special leave to the High Court, one might expect that the prosecution will inform the court that substantial inadmissible evidence had been admitted at trial]

The witness (McHoul) accepted that DNA processes cannot tell the age of a sample of blood. [111]

[This reference to McHoul discussing DNA should mention that she told the court at trial that she ‘was not an expert on DNA’. She told the judge that she had overheard other people who were experts discussing DNA. The judge accepted that her ‘overhearing experts’ talking about it qualified her as an expert witness on the topic. This is clearly an unacceptable basis for the admission of ‘expert’ evidence – See Moles report on SNF trial at p 30]

Evidence of Jones on DNA

“If the tread of the shoe retaining a moist biological substance was to be acknowledged as the likely means of the transference, I believe it is reasonable to anticipate that at least one other similar stain resulting in the same DNA profile (or part thereof) would have been expected to have been deposited on the deck of ‘Four Winds’ as the person moved about the yacht. No such stain appeared to have been detected by Forensic Scientists … Therefore, there is no evidence to support the hypothesis that the DNA detected in sample 20 was the result of a secondary transfer event caused through foot traffic on the deck of ‘Four Winds’.” [165]

[This is the point I make later about footsteps as cause of secondary transfer resulting in similar but more substantial deposits every two paces]

The evidence of the DNA profile carried very real significance to the defence case… I accept that it could not have reasonably been expected of defence counsel to appreciate the potential significance of the electropherogram and to request that that primary source be provided. However, a general enquiry of FSST for more information about the profile would very likely have revealed the key information represented by the electropherogram. That information was available before the trial from FSST with the exercise of reasonable diligence. [209]

[This is not consistent with the statement of Kirby J in Mallard, that “there was no reason why the defence in a criminal trial should be obliged to ‘fossick for information’ of this kind and to which it was entitled. See Sangha, Roach, Moles, Forensic Investigations and Miscarriages of Justice, Irwin Law, Toronto, chapter five “Law on Miscarriages of Justice Australia” at p 162. He points out the risks of asking questions in cross-examination during a trial [or of an entity related to the police or prosecution as is the FSST as acknowledged by the judge on this appeal]

See Mallard v The Queen [2005] HCA 68 at para 66. It is also clearly inconsistent with the requirements set out in the Drummond appeal and referred to by the judge in this appeal – “there is no obligation on an accused person to seek out information which the prosecution is obliged to produce”]

There may have been a tactical reason why this general probing and exploration of the DNA profile was not done. [210]

[The appeal judge is speculating that the defence counsel may have had some motive not to make inquiries. It may be that the reason was as explained by Kirby J – there are risks in making such inquiries]

The report did not address the potential causal mechanism and possibilities such as contamination or secondary transfer. Meaghan Vass’s presence on the Four Winds was the obvious explanation and that was unassailed in the [expert’s] report [at trial].

Another consideration may have been that the evidence could only be explored with FSST [Forensic Science Services Tasmania]. No other agency had the information. The strategy may have been not to seek additional information from FSST in case it brought to the prosecution’s attention evidence unfavourable to the defence. [211]

[Clearly, the fact that the Forensic Services in Tasmania is a division of the police services limits its capacity to provide advice to the defence independently of police and prosecution services. Here the judge is acknowledging the risk to the defence to which we have referred]

These observations do not mean that the prosecution was absolved of its obligations in terms of disclosing evidence about the DNA profile, the relatively large quantity of DNA and also disclosing the opinion evidence of secondary transfer – before leading that evidence from Mr Grosser. These obligations remain significant in terms of assessing the position of the defence at the trial and warrant careful consideration. [211]

There was no disclosure of the opinion from Mr Grosser of secondary transfer as an explanation for the presence of the DNA. Mr Ellis was permitted to lead that evidence from Mr Grosser without having provided a statement or proof of evidence. The opinion was not foreshadowed and the defence had no warning of it. [212]

[This is a clear failure by the prosecution to act in accordance with the disclosure obligations set out in Drummond and referred to by the judge on this appeal. Drummond makes it clear that where the prosecution has failed to act in accordance with its obligations, the discovery of that failure will constitute fresh evidence and will most likely also be compelling. The appeal judge here is acknowledging the failure, and whilst claiming to apply Drummond is acting contrary to it] 

I accept that a relevant factor bearing on the question of reasonable diligence is the lack of disclosure of the opinion led from Mr Grosser regarding secondary transfer. This was relevant material and defence counsel were entitled to rely on the prosecutor’s duty of disclosure here. [213]

Fairness dictates that a proof of evidence regarding this opinion should have been provided to the defence in reasonable time before he gave his evidence. It would have promoted an accurate understanding of Mr Grosser’s opinion and assisted in identifying the limits of his opinion. The preparation of a proof may have led to the State disclosing other relevant evidence bearing on the same issue that had not been disclosed, such as the opinion advanced by Mr Grosser in his email to Detective Sinnitt that there was a relatively large amount of DNA in the sample. [214]

In assessing whether the defence exercised reasonable diligence – there was a clear invitation by the trial judge to defence counsel that he may request time to prepare his cross-examination – this would have enabled him to check the transcript of prosecution evidence, consult a forensic scientist – prepare cross-examination. [215]

[This is clearly inconsistent with Drummond – there is no obligation on an accused person to seek out information which the prosecution is obliged to produce]

The opportunity given by the learned trial judge to request time largely, if not completely, negated the unfairness in the State not disclosing the opinion in advance by providing a proof. Perhaps there was a strategic advantage in defence counsel appearing to the jury to be unfazed by new evidence and being seen to proceed in a robust way. [216]

[It is shocking to suggest that defence counsel had some advantage by appearing calm in front of the jury whilst being ambushed. The situation was not dissimilar to that which occurred in Drummond. Peek J observed that ‘defence counsel had only been told about the technical evidence which was to be led moments before the witness was called. Defence counsel’s lack of understanding of the flaws in this evidence helped to explain why his final address to the jury on this topic would have taken ‘less than a minute to say’. Drummond (No 2) [129]. Perhaps defence counsel in SNF ‘appeared calm’ because he didn’t understand what the prosecution had but had not disclosed]

It is suggested that the opinion on secondary transfer was revealed towards the end of the trial. Given that the trial judge invited the defence to take time to prepare cross-examination, the stage of the trial loses significance. [217]

[So, a “late ambush” can be cured by the judge asking if defence would like to have time to think about it? The judge is suggesting that ‘near the end of the trial’, when defence counsel is made aware of the challenge to their position, he could have taken time to prepare cross-examination. So, defence counsel could have taken time to prepare a brief to an expert, identify an expert, inquire about the availability of the expert which may not be for some weeks ahead, wait for the expert to review the evidence and prepare a report, send it back to counsel who can then review it and prepare for further examination – all in the closing stages of a trial? I think it would be polite to say that ‘the stage of the trial’ can never be ‘without significance’] 

The expert evidence was not towards the end of the trial – it was a week before the trial finished – 29 Sept and 7 Oct – The complexity of the trial, a circumstantial case, the voluminous evidence, large number of witnesses, multiple factual issues are plain from the transcript and accepted. But secondary transfer was a critical issue for the defence and there was an invitation to take time.

[The emphasis here by the judge on the issue of due diligence by the defence is entirely misplaced. ‘Due diligence’ is said to be a component (although traditionally a minor and sometimes dispensable component) of fresh evidence. But Drummond makes it clear that where a non-disclosure by the Crown is involved, the issue of freshness is resolved by reference to the fact of the non-disclosure, rather than by a discussion of due diligence by the defence.

However, there is another approach to the issue of due diligence which we have set out in the Bromley report at p 71. The prosecution (or the appeal court) cannot raise a ‘lack of freshness’ argument against an appellant who has discovered errors in the case put forward by either the prosecution or an expert witness. The prosecution argument (or in this case, the appeal judge) presupposes that the appellant, by reasonable diligence, could have discovered the shortcoming at the time of the trial. Once the argument is raised by the prosecution, the response would be obvious. The appellant would ask the prosecution if they had exercised reasonable diligence at the time of the trial. A positive answer to that question would make it clear that the prosecution knew of the shortcomings at the time of the trial, but chose to conceal them, contrary to their duty of disclosure.

That discovery of the consciousness of wrongdoing by the Crown would then constitute the ‘fresh evidence’ required for the appeal to proceed. If the prosecution were to state that they had not exercised reasonable diligence at the time of the trial, then that admission would constitute the ‘fresh evidence’ of prosecutorial misconduct. It follows then that the prosecution (or the appeal court judge) cannot raise or act upon ‘lack of freshness’ in response to a claim of prosecutorial or expert witness error at trial.] 

Failure to disclose large amount of DNA

The other matter concerning disclosure is the failure to disclose before the trial and for the first part of the trial that there was a relatively large amount of DNA in the sample. [218]

Mr Grosser’s evidence obliquely referred to, but did not adequately disclose, the fact that there was a relatively large amount of DNA in the sample. He discussed the mechanism of secondary transfer generally and a suggestion of a possibility of a large amount of DNA in this case. [219]

There was no evidence from an expert of a “significant amount of DNA”

He had knowledge of the quantity of DNA as a consequence of the disclosure of Mr Grosser’s email to Detective Sinnitt, but that email was not part of the evidence before the jury.

The email was disclosed to counsel during the trial, the question is then, what opportunity was there for counsel to have adduced evidence with respect to the significance of the information it revealed? [220]

The disclosure of the email led to an application by defence counsel for Mr Grosser to be recalled. The application was opposed and refused. [221]

Defence counsel ‘could have’ cured defects

As soon as the email was disclosed, defence counsel could have made enquiries of an expert about the implications of the information disclosed such as the strong DNA profile and the relatively large amount of DNA – counsel could have sought the opinion of another scientist or considered speaking with Mr Grosser about its potential significance for secondary transfer as a possible explanation.

[After the application to recall Mr Grosser had already been refused?]

there would have been obvious difficulties for the appellant in presenting evidence on this appeal regarding these matters because senior counsel died in 2018. [223]

We know that a proof was not provided to the defence regarding secondary transfer, the evidence of secondary transfer was led without advance notice, and that defence counsel treated the email from Mr Grosser to Detective Sinnitt as having significance. If he had had knowledge of the strength of the DNA profile, it can be expected that he would have cross-examined Mr Grosser about it, which he did not do.

It is significant that there is no evidence suggesting that once Mr Grosser’s email was disclosed there was anything preventing a forensic scientist from being consulted, briefed and, indeed, called as a witness for the defence. It seems there was that opportunity. [224]

[No problems doing all that whilst the trial is continuing?]

The email was disclosed on 30 September 2010, the balance of the State’s case was presented over the ensuing days, the State closed its case on 7 October 2010.
Defence commenced its case on the same day
SNF’s evidence concluded on 12 October and closing addresses commenced on 13 October After disclosure of the email there was time for the contents of it to be explored and evidence to be adduced.

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. [240]

[Is it credible to suggest that a senior prosecutor could have taken such ‘liberties’ without ‘deliberation’?] 

I am not suggesting that the closing address was inconsistent with Mr Grosser’s evidence.

[It clearly was]

The Director painted generalised scenarios which had not been explored in the evidence.

[He was ‘making things up again]

There had been no evidence that picking up a “trace” of DNA on a person’s shoe could be transferred to a surface regardless of the viability of DNA from “anywhere” Ms Vass had been.

Timeframes, environmental factors, may impact on secondary transfer – whether the biological material was dry or wet, the variables on the adhering of biological substance to a shoe, contact with other surfaces while walking or getting into a car. Grosser’s evidence was that as a general proposition secondary transfer was possible as a potential explanation but did not go into the variables.

The DPP strayed into ‘conjecture’

The Director’s scenario strayed away from the evidence into conjecture. 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. [241]

[This means the jury was misled – now come the excuses!]

This lack of evidence for generalised scenarios painted by the Director was apparent at the trial, and if the Director crossed the line

[Why is the judge expressing this as a conditional proposition? It is clear that the prosecutor did cross the line.]

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,
[again, the judge expresses this as a conditional proposition rather than an assertion that unfairness had occurred]

The defects ‘could have been cured’

could have been cured at the time of the trial or could have been the subject of the first appeal. [242]

[Surely the whole point of a second appeal is to deal with unfairness which has not been properly dealt with at trial or on a first appeal? Irrespective of whether the misrepresentations by the prosecutor ‘could’ have been cured at the trial, the fact is that they were not, unfairness had occurred, and the judge should determine whether it resulted in a substantial miscarriage of justice. 

Counsel for the appellant could have asked the trial judge to remind [inform?] the jury that there was no evidence that the range of circumstances painted by Mr Ellis could lead to secondary transfer.

Why is the appeal judge putting this responsibility upon the defence counsel? Is it not the trial judge who has to ensure a fair trial? Why shouldn’t the trial judge deal directly with a prosecutor who is misleading the jury on a crucial issue? The appeal judge is stating that defence counsel has the responsibility to ensure that the judge tells the jury that the prosecutor was misleading them? This is clearly contrary to Drummond which made it clear that defence counsel is entitled to rely upon the fact that the prosecutor will act in accordance with prosecutorial duties, and will not lead false or misleading evidence and, presumably, will not put false or misleading submissions to the jury. ]

and further that all the jury had was evidence that it was possible that secondary transfer may occur by someone stepping in a biological substance and transferring it via the sole of their shoe. The first appeal did not assert any unfairness in the closing address.

[That is why we are having a second appeal]

Prosecutor’s address was not ‘evidence’ – see GBF v The Queen

There are other matters to bear in mind. It is important to bear in mind that Mr Ellis’s closing address was not the evidence. The trial judge reminded the jury that their findings must be based on the evidence. [243]

[It is clearly possible, indeed quite likely, that the jury might have been misled into thinking that the DPP would not be so irresponsible as to propose something to them which did not have some evidential support?

After a great deal of complex forensic evidence over many days, the jury might have been misled into thinking that the prosecutor was providing them with a summary of inferences which could be drawn from ‘the evidence’. In effect, the prosecutor was opening up an impermissible line of reasoning which could lead the jury into drawing inferences adverse to the accused on a central issue in the case.

As was said in GBF v The Queen [2020] HCA 40 “the impugned statement allowed the jury to reason to guilt by an impermissible path”. As in SNF, the appeal court in GBF reasoned that although the impugned statement should not have been made, there was no real possibility that the jury may have misunderstood earlier, correct directions of law that had been given, and no real possibility that the appellant had been deprived of a real chance of acquittal. Again, like SNF, the appeal court took into account the fact that neither the prosecutor nor defence counsel had applied for any redirection arising from the making of the impugned statement.

In Azzopardi v The Queen [2001] HCA 25 the court had stated that that the accused bore no burden, onus or obligation to prove anything – and as theimpugned passage may have affected the jury’s assessment of a critical witness … the appeal could not be dismissed under the proviso.

In GBF, the prosecution had argued that the impugned statement was ‘a comment’ which the jury may have found easier to ignore, and that the failure of counsel to seek a redirection meant that the integrity of the trial had not been compromised. The High Court pointed out that “any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice” therefore, the invitation to the jury to engage in a false process of reasoning was an irregularity amounting to a miscarriage of justice.

The reasoning of the appeal court would appear to have repeated the errors of the appeal court in GBF and Azzopardi. It is clear from the following comments by the judge in SNF that the reasons for avoiding the inevitable consequences of the prosecutorial submission are not acceptable, or in accordance with the principles laid down by the High Court]

(Defence counsel) capably countered and contradicted the scathing references to Meaghan Vass’s DNA as a red herring, and described the suggestion that DNA was “somehow trampled on board” as “pure fantasy”. He described the efforts of the Director to try and suggest that her DNA got there by transference as a “desperation ploy”. [244]

[This is to assume that the jury would accept the argument from defence counsel over that of the prosecutor.]

DPP engaged in ‘hyperbole and conjecture’ – ‘exaggeration and theatre’

It would have been obvious s to the jury that both closing addresses contained an element of hyperbole and conjecture. [245]

[This is to accept the DPP was putting ‘hyperbole’ and ‘conjecture’ to the jury in place of evidence or proper reasoning based upon admissible evidence. This is not the way in which serious criminal trials should be conducted]

In assessing the impact of the scenario upon the jury, it is necessary to bear in mind the matters set out above, such as the strong counter to the Director’s scenario in the defence closing, the trial judge’s direction to the jury that closing addresses are not evidence and that the jury must base their findings on the evidence. It would have been evident to the jury that common to both addresses was a level of exaggeration and theatre. [247]

[The indications from GBF and Azzopardi would support the view that if the prosecutor engages in ‘exaggeration and theatre’ when addressing the jury, the effects of that cannot be offset by a general judicial direction, or a critique by defence counsel]

Jones evidence would have prevented DPP submissions

If the evidence of Mr Jones [on this appeal] regarding the kind of circumstances required to give rise to the DNA profile had been before the jury, the Director would almost certainly not have painted that scenario or, if he had, it would have been, in its generalised terms, in conflict with Mr Jones’s evidence. The suggestion that there need not be any close or direct connection between the receipt of the DNA “trace” on the person’s shoe and the ultimate deposit on the boat could not have been made [by the DPP] [248]

Before turning to whether the evidence of Mr Jones in this regard qualifies as substantial and highly probative – [249]

[How could there be any doubt after what he has just said?]

The evidence of Mr Jones regarding rarity of an occurrence of secondary transfer is a ‘relative concept’ and this perspective of relative rarity only takes the jury so far and it doesn’t exclude the specific circumstances which may face the jury. [250]

[This is a repetition of the “Bromley approach” which de-valued or undermined the significance of the overwhelming expert evidence which was presented on the appeal. The judges there said the principles and conclusions of the experts were expressed in ‘general terms’ and therefore the specific factors of the witnesses’ evidence might lead to different conclusions. This is a bit like saying that legal principles or rules are expressed in general terms, so may not apply to specific circumstances of an individual case.

Philosophically this is profoundly unsound as all human knowledge is expressed at varying levels of ‘generality’. The clear guidance of the experts in Bromley (and SNF) was developed with the circumstances of those cases in mind. The judges are trying to avoid the necessary implications of that advice by suggesting that the ‘particularities’ are at variance with that advice when that is plainly not so. We should cry ‘foul’!]

[252] [this para engages in the devaluing exercise to trivialise the impact of the expert evidence by asserting that ‘not finding’ other traces does not mean they were not there – rather like the medical board in Keogh – ‘the absence of evidence is not evidence of absence’!

The key point is that material on a foot would be deposited every ‘two feet’ so it would not be hard to find? Two paces from the deposit in the direction of travel – if it arrived ‘by foot’ – there would be another and larger deposit – given that with each step the quantity for distribution would be diminished. This would continue every two paces, with increasing quantities, until one arrived at the initial deposit, or at the place where the traveller arrived by vehicle. The inability to find such further deposits supports the hypothesis that the deposit did not arrive as a result of foot travel. In other words, the failure to find additional deposits falsifies the hypothesis that it arrived as a result of foot travel. Given the constant references to the ‘sensitivity’ of the various testing methods, it would be unlikely that there had been some process by which all traces of such deposits had been removed]

* * *

Editor’s summary of key errors identified:

• Wood J failed to recognise that luminol test was inadmissible forensic evidence
• That this was incompetent, false and misleading evidence was not disclosed at the appeal by the prosecution
• Failure to recognise that some DNA evidence was incomplete & misleading
• Excusing that the Director ‘strayed into conjecture’ about secondary transfer of DNA
• Wood J’s misplaced emphasis on due diligence by the defence – actually a requisite by prosecution
• Wood J excusing impermissible prosecutorial speculation as ‘liberties’ & ‘hyperbole’ & ‘exaggeration and theatre’

Dr Bob Moles

Adjunct Associate Professor 
College of Business, Government and Law 
Flinders University of South Australia

 

 

Extract from Justice Estcourt Dissenting Conclusion at the appeal:

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.

FOOTNOTE: These three judges also heard the appeal against Marco Rusterholz’s murder conviction.