Sue Neill-Fraser case moves out of Tasmania to the High Court

Andrew L. Urban

At 9.30am on Friday, August 12, 2022, the (probably three) High Court judges assigned to hear the seeking leave to appeal her 2010 murder conviction by Sue Neill-Fraser, will watch their screens wherever they are geographically, but no longer within Tasmania’s jurisdiction, to hear the arguments on her behalf by Robert Richter QC on another screen. The DPP will respond, also via videolink, and by 10.30am, the judges will have made a decision: either consent to hear the appeal or dismiss the application. This briefing covers all the issues. 

As the backdrop to the August 12 hearing, this briefing begins with the findings of our further analysis of the trial.

1     The Crown case was based wholly on circumstantial evidence. The body of Bob Chappell was not found. No murder weapon was presented to the jury. Not knowing the time of death, the Crown could not prove she was even at the crime scene. The Crown case that Neill-Fraser was on the yacht at the relevant time starts with the conclusion it is trying to prove; thisis impermissible circular argument.

2     The Crown speculated that Neill-Fraser used a wrench to murder Chappell, speculation which was permitted – and reinforced by – the trial judge. This reverses the onus of proof. The jury was left with the speculation embedded in their consideration.

3     The DNA of Meaghan Vass that was found at the crime scene was dismissed by the Crown as a ‘red herring’ and the prosecutor persuaded the trial judge to dismiss the defence request to recall Vass for further examination after information that she had lied about her whereabouts at the relevant time when denying she had been on the yacht. The jury was denied the chance of hearing a rebuttal of the ‘red herring’ argument of the Crown.

4     The Crown presented Phillip Triffitt as a credible witness, a criminal with pending charges, who claimed Neill-Fraser had asked him to help kill Chappell more than a decade earlier. Neill-Fraser denied his allegation and it was not supported by evidence and required Neill-Fraser to disprove it.

5     The prosecutor, then DPP Tim Ellis SC, suggested to the jury that Neill-Fraser deliberately left her DNA on certain winches at the crime scene – which was her co-owned yacht, where her DNA would have been innocently deposited in many places. This poisoned the jury’s mind; all Neill-Fraser could do was deny the allegation that she acted in a manner to deceive investigators.

T1327 ELLIS: I think you were making sure that you were picking up things and could be seen to be picking up things?……SNF: .I don’t quite understand. ELLIS: And so that when your DNA turns out to be on the winch handle, then that’s perfectly explicable because you did pick them up in the presence of the police on the 27th of January?

6     In his summing up, the judge referred to ‘evidence’ which suggested that ‘the body’ was taken away and disposed of in some unsearched part of the river. There was in fact, no such evidence, and no rational basis upon which ‘the jury’ could make such a finding.

This prejudicial statement by the trial judge implies guilt.

7     In his summing up, the judge mentioned Neill-Fraser having ‘intimate knowledge of the boat’ as being relevant to ‘an attempt to sink it’, but failed to mention that she had stated the boat was virtually unsinkable because of its ‘six watertight bulkheads… it can’t sink’ – and it did not sink.

This prejudicial statement by the trial judge implies guilt.

8     The prosecutor repeatedly told the jury that Neill-Fraser had erected a ‘wall of lies’  – ‘though the truth will come seeping out through the edges’. Even a simple diary entry written with two pens was said to be ‘laying a false trail’. The prosecutor went so far as to say:

When you look at the number of lies and look at her credit, look how she seemed in the witness box to you, ladies and gentlemen, I suggest that you would be very hard pressed to believe anything she said unless it was reliably corroborated by someone else.

To suggest to the jury that an accused person should be disbelieved in all that she says unless she provided corroboration is effectively to reverse the onus of proof.

SEEKING SPECIAL LEAVE TO APPEAL

The written version of the grounds of this appeal will have been delivered earlier. At least 60,000 interested parties will be anxious to hear the judges’ decision immediately, including the nearly 34,000 signatories to the PETITION calling for a review of her case, plus all her family, friends and supporters, many in the Tasmanian population … and the entire Tasmanian legal establishment from the police on the street to the senior ranks of the legal fraternity. Many more thousands will be catching up with it in due course.

Sue Neill-Fraser herself will still be in prison, waiting for the call from Richter.

Sue and Bob

 This hearing was originally expected to be heard as part of the Seeking Special Leave applications scheduled for August 19, 2022 – ironically, the day before the 13th anniversary of her arrest for the murder of her partner Bob Chappell on Australia Day 2009. A whole day of Special Leave applications is now scheduled for August 12, perhaps to try and reduce cases piling up.

Part I

The proposed grounds of appeal:

Ground 1: The Court below, having accepted that the prosecution led evidence about secondary DNA transfer at trial without having complied with the duty of disclosure and over objection, erred in holding that the evidence that the applicant relied on before it was not fresh evidence.

Ground 2: The Court below, having received evidence that the circumstances required to produce the DNA profile critical to the defence case required a rational explanation of specific events with a sufficient connection between the obtaining of the sample and its deposit, erred in holding that the evidence that the applicant relied on before it was not compelling evidence.

Ground 3: The Court below, in light of the matters addressed in Grounds 1 and 2, erred in holding that there had not been a substantial miscarriage of justice in circumstances where there was no rational basis to reject the conclusion that Meaghan Vass had been on the Four Winds* at the relevant time.

Four Winds at anchor

*The Four Winds was the yacht owned jointly by Neill-Fraser and Chappell, on which – according to the Crown case – she murdered him.

Part II (as prepared by the applicant)

  • What is the significance of prosecution non-compliance with the duty of timely and full disclosure to the assessment of whether evidence subsequently relied on as fresh evidence could have been adduced with reasonable diligence?
  • In cases where the method by which a DNA sample has been deposited is critical to the assessment of whether a reasonable hypothesis consistent with innocence exists, what is the significance of requiring credible circumstances necessary for a secondary DNA transfer to the assessment of whether evidence subsequently relied on as compelling evidence is substantial and highly probative?
  • In relation to prosecutions that rely entirely on circumstantial evidence, what is the significance of fresh and compelling evidence that would if led at trial have destroyed the methodology by which the prosecution sought to remove a critical pillar of the defence case to the assessment of whether there has been a substantial miscarriage of justice?

Part III is an overview of the case.

***

DPP RESPONSE TO APPLICATION

Responding to the application, the DPP lodged an 11 page, 47 paragraph document; we critique a selection of the points:

9 It is completely implausible that Ms Meaghan Vass was responsible for the murder:

This is a mischievous response. The applicant at no time claimed, suggested or implied that Vass was responsible for the murder. In rebutting its own hypothetical suggestion, the DPP is posing a false argument in its Response.

39, 45 –  see above

13 (& 32) The applicant has improperly referred to evidence which was not before the court below ….

This assertion is not correct. See (below) Gipp v The Queen, Kirby J stated: From the earliest days, in the determination of appeals, this Court has asserted a jurisdiction, held in reserve, to avoid an injustice brought to its notice, although not raised at the trial or in the court of appeal[112].  In truly exceptional cases[113], to avoid the risk of a serious miscarriage of justice, to vindicate the law[114] or to prevent the repetition of similar mistakes of law[115], the Court has upheld a prisoner’s appeal although the point ultimately successful was never taken below, whether at trial or in the court of criminal appeal.

 33 Mr Jones evidence neutralises the issue of how Ms Vass’s DNA was deposited on the yacht. Considering all of the evidence leads to the conclusion that the most likely and most rational conclusion is that the DNA was deposited after the murder. Therefore his evidence in total strengthens the prosecution on the case.

It is not a rational conclusion and does not strengthen the prosecution case. Such a conclusion would require a rational explanation of why Meaghan Vass ever claimed to have been on the yacht at the relevant time (see 60 Minutes, March 10, 2019), creating for herself a whole range of uncomfortable, perhaps dangerous consequences.

40 (1) The jury also had to consider the evidence of motive and the numerous lies told by the applicant.

This paragraph misrepresents the facts. The applicant told one lie to police and gave a credible and benign explanation of it; she was protecting the Chappell family from possible embarrassment.

As to motive, defence counsel submitted at trial (jury absent) “Now it’s – there’s no doubt that a jury can infer guilt from motive, but it’s my submission the jury must be instructed that they have to be satisfied beyond reasonable doubt that the motive asserted by the Crown has been proved to that extent. Now the authority for that is to be found in R 15 v Murphy which is reported in [1985/86] 63ALR@53, starting at the bottom of page 67, and that of course, was the appeal from the original convictions of Lionel Murphy, J. and a court consisting of Street, CJ. and Hope, Glass, Samuels and Preecely, JA. – and your Honour would appreciate, a court of some senior judges.” And in Chamberlain, Gibbs CJ and Mason J in their joint judgment said: “the jury cannot view fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond a reasonable doubt.”

40 (2) Ultimately the applicant admitted that she was present at Marieville Esplanade late on the relevant night at a time when an inflatable dinghy containing a single person, who had the appearance of a female travelled from where the dinghy had been tied towards the Four Winds.

There can be few less convincing propositions claiming to be evidence in criminal matters before a court. It smacks of desperation and is an insult to the Court’s intelligence to put this forward in support of the verdict:

Grant Maddock in 2009

  1. The applicant was in the general area
  2. The appearance of a female
  3. Towards the Four Winds

Further discrediting this response, this matter was comprehensively dealt with in hearings before Brett J in a court below,* where a witness came forward to identify HIMself as (the slightly built and long haired) Grant Maddock, the person in the dinghy, whose testimony (helping another yacht) was corroborated by the witness, John Brettingham-Moore. To make matters worse, the signatories to this Response are the same DPP and assistant who represented the Crown at that appeal; they know full well that it was not the appellant in the dinghy.

*See transcript 1 November 2017, from P-194 – 217, Maddock & Brettingham-Moore EXN & XXN, seeking leave to appeal, Court of Appeal, before Brett J

Further notes and reference citations

There are many other appealable errors in this case as can be seen from many of the articles we have published, including errors identified by Flinders University legal academic Dr Bob Moles. These range from inadmissible forensic evidence to prejudicial conduct by the prosecutor and the trial judge. Others have been documented in the Etter/Selby documents tabled in Parliament.

Meaghan Vass

But there are some crucial questions that have been obscured by all the arguments about Meaghan Vass’ DNA (no doubt intentionally), which must be addressed by the High Court.

The Crown did not provide evidence at trial that a) Chappell had been murdered – it was assumed; b) that Neill-Fraser was at the crime scene at the relevant time, as the Crown does not know the relevant time; and c) that she killed Chappell – it was speculation by the prosecutor.

If we accept Meaghan Vass’ claim to have witnessed a fight on board, there is confirmation that Neill-Fraser was not there. If we dismiss her claim, the prosecution case remains as is – namely unproven; see above.

Case law:

According to this opinion by Justice Kirby in Gipp v The Queen (par 137), and contrary to what some people think, the High Court has extensive powers to evaluate “substantial arguments that a manifest miscarriage of justice has occurred, particularly, but not only, where such miscarriage has resulted in a custodial sentence.  This Court has adequate means to defend itself from insubstantial attempts to raise for the first time points of objection earlier neglected or overlooked [106].” And “… in criminal appeals, all courts should be vigilant to miscarriages of justice brought to their notice. When a manifest miscarriage can be shown, Australian courts, unless forbidden by statute, do not turn a blind eye.”

[106] Bataillard v The King (1907) 4 CLR 1282 at 1289; Liberato v The Queen (1985) 159 CLR 507 at 509; Morris v The Queen (1987) 163 CLR 454 at 475-476; Pantorno v The Queen (1989) 166 CLR 466 at 475; Baraghith v The Queen (1991) 66 ALJR 212; Warner v The Queen (1995) 69 ALJR 557.

Especially worth noting [par 138,] where KirbyJ articulates the wide powers of the court in an appeal:

“Nothing in Mickelberg v The Queen [107] or any other authority of the Court forbids the course which I favour.  In Mickelberg, the Court construed the “appeal” provided for in s 73 of the Constitution as excluding the reception, in this Court, of fresh evidence which was not before the courts below. It restated the proposition that an appellate court is called upon to “redress error on the part of the court below”[108].  In deciding whether error is demonstrated the appellate court looks to, and not outside, the materials that were before the court a quo.  Otherwise, Mickelberg simply confirms the principle that the powers of this Court in an appeal “are of the widest character which true appellate jurisdiction may possess”[109].  The decision does not prevent this Court, within the record, from reconsidering the judgment, decree, order or sentence from which the appeal comes[110].  Doing so, on a matter not called expressly to the attention of the court below, does not, as such, involve this Court in a “rehearing”.  It does not take this Court “beyond the jurisdiction or capacity of the Court appealed from”[111].  It does not partake of an impermissible exercise of the original jurisdiction of this Court.  From the earliest days, in the determination of appeals, this Court has asserted a jurisdiction, held in reserve, to avoid an injustice brought to its notice, although not raised at the trial or in the court of appeal[112].  In truly exceptional cases[113], to avoid the risk of a serious miscarriage of justice, to vindicate the law[114] or to prevent the repetition of similar mistakes of law[115], the Court has upheld a prisoner’s appeal although the point ultimately successful was never taken below, whether at trial or in the court of criminal appeal.”

***

For errors in the police investigation and questions about evidence, see our reports on the Etter/Selby papers  

Our report on the outcome of the seeking leave application will be published as soon as possible after the decision is available.

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41 Responses to Sue Neill-Fraser case moves out of Tasmania to the High Court

  1. Diane Kemp says:

    I am a bit late catching up but thank you Andrew for your response. My hope is as always that truth will win out and that Sue’s application for leave to appeal is successful. It certainly has a greater chance now it is out of Tasmanian hands. 13 years is way too long for this charade to continue. Time for real justice to begin.

  2. Owen allen says:

    Well said Robert, I have nothing to contribute at this time, I am slightly traumatised decision time has been announced, anxiety is a curse. I assure you it is not cowardiceness; thats why I kept on, to face the anxiety and stress they imposed on me for breathing Tasmania air (oxygen) and attempting to stand up for civil, legal and human rights in Tasmania, as an outsider from overseas (Bass Strait), but worse a New Zealander. Yep, I am Kiwi, son of ANZACS. Chio.

    • Owen allen says:

      Correction, Chio to Ciao, I was misinformed or I misread, I was corrected using Chow. I like to do the best I can and improve, right my wrongs, and respect law. I love the Law of Aerodynamics. 16 degrees of angle of attack maximum, aircraft in balance if in a turn. Otherwise aircraft wing will not support lift, wing will aerodynamically stall. Aircraft will descend, at low level recovery is impossible. Crash……..The Law of Aerodynamics has no lawyers; but GOD FORGIVES even in fatal events. I crashed nose down after hitting wires cropdusting and I lived. JESUS LIVES, GOD FORGIVES,
      But Justice Has To Be Done. Now is the time Tasmania should take the opportunity to repent and fess up in honesty, like Nineveh did after Jonah warned them from GOD, THE CREATOR. AMEN….OWEN, my message on behalf so I can sleep.

  3. Sandra Duncan says:

    The sad irony of it all is that Sue by now would be highly qualified legally to defend herself ., she is super intelligent , knows her case better than anyone else and has been able to access with the help of Barbara Etter in particular, a vast knowledge of criminal law .., and access to the Tas state library .. to throw in a cliche ., her whole case smacks of the power of the patriarchy and very gendered assumptions in the Tasmanian legal system and media ., of course not forgetting the support of so many competent men researching and lobbying for her .. dear Sue I do hope that finally the truth told out of the state of Tasmania, can finally set you free .

  4. Robert Greenshields says:

    Interestingly another Tasmanian politician resigned today, the Police Minister. A coincidence or rodents deserting a sinking ship? Time will tell when all is told, and truth and honesty override the cultures of collusion and the more than apparent deceit and venality. Roll on the 12th of August.

  5. Lisbeth Eastoe says:

    Thank you, Andrew. I am heartened by your clarity and hopeful that the High Court judges may have the vision of J Kirby.

    We all have the right to the presumption of innocence and a fair trial. The Constitution provides this.

    The rule of law provides a shield against the arbitrary exercise of power. It ensures that judges’ independence can be relied upon. Sue’s trial judge failed in the exercise of his power.

    The American Supreme Court judge, Ruth Ginsburg, notes (1992) that the Chief Justice of Ireland reminds judges to bring to bear upon their judgements the instruction of the Irish Constitution ‘to promote the common good, with due observance of prudence, justice and charity that the dignity and freedom of the individual may be assured’.

    We unfortunately have no similar concept of the ‘dignity of the human being’ in our Constitution so it is too frequently trampled on by those of the judiciary whose capacity is limited. One can only hope that the discourse and decisions of the J. Blow are viewed as so clearly inept, erroneous and prejudicial to the Rule of Law by the High Court that a mis-trial is deemed the only option available.

  6. Ian Ronald Gardner says:

    I am pleased that the seemingly corrupt Tasmanian jurisdiction is not involved in this application. Justice for this poor wrongly convicted woman is long overdue and I can only hope that she ultimately receives a fair decision from sensible people. My next wish would be to see her exonerated and free to sue the backsides off the Tasmanian authorities.
    I have also lost all faith in Tasmanians for their lack of action in this miscarriage of justice. Perhaps they deserve to live in a State where dishonesty, deception and corruption is rife.

  7. Garry Stannus says:

    Personally, it is very disappointing to learn that Robert Richter QC will lead the Leave Application. We watched him at the 2nd Appeal. I felt like he abandoned Meaghan Vass to the wolves. His whole 2nd Appeal strategy, which put aside all the other evidence which had been heard during the several years of hearings for the Leave-Application-for-a-Second-Appeal, was mindless. He told the Court that in effect he was putting all his eggs in the Vass evidence basket.

    He set aside the issue of the grey dinghy. He set aside Grant Maddock who had said he’d been in a dinghy going out from the marina on the night. He set aside Gleeson and Wroe, he set aside Brent Brocklehurst’s evidence of his neighbour, Simon Pargiter. Pargiter (now dec.) had been out walking his dog on Sandy Bay’s ‘Short Beach’. He’d met three persons: Stuart Russell (to my last knowledge still in jail for an unrelated murder, Michael ? and a 14-15 year old girl who did “come out of nowhere on a dinghy” to Short Beach.

    Pargiter walked back with them to his place, turning at the Margaret St corner fence where the next morning the red jacket would be found. When they got to his place (short-cut through the bowling club) they -according to Brocklehurst- carried on loudly till asked to quieten down. All that was set aside.

    Mr Richter QC decided to abandon all that. He decided to leave aside the opportunity to illustrate how Peter Lorraine’s evidence was manifestly not evidence of seeing Bob Chappell on the back of the Four Winds. There is other new evidence which was raised in those years of application hearings which could have formed part of the 2nd Appeal when it took place (i.e. Mclaren’s?) – but Richter – in my opinion – threw it all away.

    He told the court there were only two questions to be determined in the appeal: ‘Was Vass on the boat?’ and ‘Was Neill-Fraser on it when Bob Chappell was killed?’ Richter told the court the only witness who could answer that was Meaghan Vass:

    There is we say but one witness who can answer these questions, and it is Meaghan Vass.

    Then on the second day he told the Court:

    We are in a situation in which we concede that the evidence of Vass cannot support the notion of fresh and compelling evidence leading to the miscarriage of justice.

    Out with all the rest … eggs in one basket! Well he got that wrong, now didn’t he?

    He also – from the outset – opposed Andrea Brown being allowed to sit with Meaghan when she gave evidence. There was obviously a failure on Richter’s part to have ‘proofed’ the witness, to have her confidence, to provide anonymity etc. It was a shambles. I was there for every part of those three days which resulted in Sue remaining in prison, where she is now, as I write. It was a shambles. Meaghan’s terror, seen in her face in the back of the taxi. The Mercury headline ‘Sam did it’. She had been promised anonymity but was let down.

    I wouldn’t send Richter round the street to get me half a dozen eggs – they’d arrive cracked and broken. I do note that Mr Percy and Mr Smallwood – who previously have acted quite capably for SNF – are signatories to the application, along with Mr McCusker.

    • Jess says:

      I feel like Robert Richter focused on the two most significant arguments. He probably also new it was an unwinnable appeal in Tasmanian and that it would need to go higher. I don’t believe it was him responsible for Meghan, she had her own legal representative that promised her protection. The court was bias from the start and had an agenda to destroy Meghan’s credibility. The appeal should’ve been closed to the media and also overseen by non-local justices.

      • andrew says:

        We also argued that the appeal should be heard by interstate judges; a common practice in jurisdictions that value the ethical delivery of justice.

    • Garry Stannus says:

      I note that in his final submission to the CCA, Mr Richter, in formally abandoning the evidence of Vass, had this to say:

      so far as any evidence of there being no vomit is concerned, we have – we concede that there is no evidence of vomit as such being found.

      I have the idea that somewhere in all the transcripts there is mention of a bag (below decks?) containing ‘vomit rags’. My impression is that somewhere along the way, the Editor noticed in photos of the Four Winds a blue rag on the walkway, aft of the gateway. My recollection is that the Editor associated this blue rag with the so-called ‘vomit rags’ and from that ‘Furphy water tank’ moment, the image of Vass vomiting on the deck/walkway was born.

      CLARIFICATION: Further reading has led me to Colin McLaren’s [Southern Justice, pp119-122]: It seems that it is McLaren who has first planted the Vass-vomited-on-the-FW idea:

      The blue rag is also very telling, when you try to unravel why someone was spitting or dry retching perhaps at the location, and wiping their mouth or face with a rag.

      Frankly speaking, I don’t think Vass can be relied on. I don’t think she has demonstrated any real memory of that day. Her statements (e.g. 60 Minutes) are full of ‘I would have been’ and ‘I must have been’ qualifications. Perhaps she has been conned into thinking that since her DNA was on the boat, then she must have been on it and since Bob Chappell was perhaps killed on the boat, then she must have been there when it happened … yes, there was [must have been] a fight ‘the old bloke [must have] arked up’ … there was lots of blood…

      No there wasn’t – the luminol spraying didn’t reveal lots of blood. A drop of so on the step, some fine spray on a panel, some on the cushion/seat below the hatch. I think it possible that Vass’s evidence of vomiting on the deck/walkway was inspired by the media article/s which ran with the supposed ‘fact’ of the blue vomit rag on the walkway.

      Blue rag? Yes!
      Vomit? No!

      https://wrongfulconvictionsreport.org/2021/09/23/the-homeless-girl-the-bikie-the-blue-rag-taspol-the-lawyers-and-how-it-all-went-pear-shaped/

      https://wrongfulconvictionsreport.org/2021/03/12/red-flag-about-the-blue-rag/

      https://www.facebook.com/garry.stannus 18Jun2021 [places the DNA deposit forward of the gateway, while the blue rag is seen (in WCR pic as aft of the gateway. Likewise, other pix show a blue rag on the superstructure of the saloon]

      • andrew says:

        From transcript of 60 Minutes Vass interview, March 10, 2019:
        LIAM BARTLETT: When you say there was a lot of blood, were you downstairs, were you on the deck, were you in the cabin?
        MEAGHAN VASS: I’m – on deck I think.
        LIAM BARTLETT: And what was your reaction to that?
        MEAGHAN VASS: [indistinct: ‘It’s when’?] I’ve thrown up, the vomit.

        • Garry Stannus says:

          Thanks Andrew … look, I think you are quoting back to me the transcript which I produced from the 60 Minutes interview, but readers should keep in mind that the existence of the transcript itself doesn’t mean that what she told Liam (the interviewer) was true.

          In any case, my previous comment stands: I think that on the available evidence, one is entitled to surmise / allow for the possibility that Meaghan remembers little or nothing of the 26Jan2009 events … I think it possible that what she has since said is the product of suggestion from others and not the product of actual memory.

          Perhaps she remembers some things clearly, but so far, her statements have not – in my view – been convincing. We need her to have the opportunity to tell – in her own words – what she remembers. She can do that now. She can write, or she can tell Andy to write it down and she can tell the world what she actually knows and recalls. We need her to fully and frankly tell us about it. No more of the ‘would have been’ or ‘must have been stuff’ … just what she plainly remembers. If she remembers nothing … so be it – it doesn’t mean Sue is guilty … it means Meaghan doesn’t have any real memories. If Meaghan wasn’t on the boat, it doesn’t mean Sue is guilty … it means Meaghan wasn’t on the boat.

          • andrew says:

            Quite apart from the transcript which you kindly provided (there is one also from Ch 9) we all saw and heard Meaghan say those things. You are also probably right that her memory was clouded; it will remain so and ageing, dissolving now, as well, after a decade. The only thing that anchors her clouded memory is her DNA. But I won’t go there or I will have to reject my own comment. All I will say is that the police and the DPP made a complete botch of this case – it should never have gone to trial.

      • Mario says:

        Once again we have to stop the repetitious Vass/DNA commentary that goes round in circles. Comment rejected.

  8. John Biggs says:

    I found your summary totally convincing, Andrew. It is vitally important that the case be heard outside the Tasmanian jurisdiction: the prosecution’s replies you have printed are simply pathetic, as was the behaviour of the prosecution in the last appeal: bullying a witness until she broke down — and they got away with it! We can only hope that the High Court appeal is allowed (how can it not be?) and justice will at last be done.

  9. John Ferris says:

    Great summing up of all that has gone before. Thanks Andrew Urban. At least August 12 will see another move, albeit slow, but in the right direction. I must also agree with Sue Marsh’s comments and I too have serious doubts about the physical ability of one person to carry out the suggested scenario ! Best wishes and good luck to SNF.

  10. Carol Field says:

    Thank you Andrew.

  11. Mario says:

    Something in the Crown’s submission caught my attention that contradicts the image of the dinghy shown on this blog:

    “At approximately the same time that the applicant was present at the waterfront a wirbwas saw an inflatable dinghy with an out oard motor (the Four Winds dingy was inflatable with an outboard), travel towards Four Winds. A single person who appeared to be a woman was in the dinghy.”

    I researched the matter and found out that at the trial the prosecution witness by the name of Hughes said that he heard the dinghy’s overboard motor and that the dinghy was an inflatable. The time of night was between 11:30pm – 12pm.

    The boat shown on this blog is a wooden boat and doesn’t have an overboard motor.

    • andrew says:

      Your diligent research was based on the wrong premise. If you read the section in question again, you will realise your error. This photo is not about the dinghy. It is the image of how Grant Maddock looked at the time, his slight build and long hair, mistaken for possibly a female form in the night. (BTW, how exactly did you research ‘the matter’?)

      • Mario says:

        You ask “BTW, how exactly did you research the “matter”?

        I researched the matter by reading the ex-examination and the cross-examination of John Hughes in the Trial Transcript. I then researched online about Grant Maddock’s testimony during the 2017 right to appeal hearing.

        Grant Maddock used a single oar in a sculling procedure that involved continuous sideways movement of the oar. Such a movements would have been noticed had it been him that was seen by Hughes because there was light shining from Sandy Bay.

        Hughes saw an inflatable dinghy and heard its overboard motor. He estimated then dinghy to be between 3 and 5 metres in length. Sue’s dinghy was 3.6 metres in length. Maddock’s wooden dinghy looks to be about 2.5 metres in length.

        Maddock is flat chested (unlike Sue). I don’t associate a flat chest with a description of an “outline of a female figure’ that Huges said he saw on an inflatable dinghy.

        • andrew says:

          Gee, so thorough … and so misguided. Still, it kept you busy.

          • Geraldine Allan says:

            Gasp 😱!

            The quality of subjective, selected “research” leaves me almost breathless.

            It’s frustrating Andrew, yet we can do nought but scroll on. I’m not sufficiently patient nor am I willing to waste my time, to prepare detailed argument in an attempt to educate & persuade those who choose to be selectively uninformed.

            The information is available, for anyone prepared to remove the blinkers.

        • Mario says:

          Continuing on:

          Vexatious comment; rejected.

          • Helen K says:

            It’s discusting that your logical analysis is cut off by those who look at the evidence at a very superficial level.

        • Garry Stannus says:

          Mario, you didn’t read the trial transcript closely enough: Hughes evidence was of hearing an outboard motor, not of seeing an outboard motor.

          Your research of Maddock’s sculling omits the fact that he told the 2017 hearing that in windy weather he would use two oars. (it was windy that night)

          Your stated size of the Four Winds dinghy is incorrect: it was 9 feet long (2.75m)

          Mario, if the dinghy that you saw was that of the Four Winds, the occupant was sitting on its floor. (there was no trestle seat). What outline did Hughes see, in the dark that suggested to him the outline of a woman, but he ‘couldn’t be definite’? Could it not have been the long hair of Grant Maddock?

          In general, Mr Hughes’ evidence does not inspire confidence: he told the court that there were no cars on the spit that night (except for his own which he had driven down to the end). However, to do so, he had passed Gleeson’s yellow car which was up by the alcove of the rowing-club shed. Hughes said that he had played golf that afternoon then might have gone to a movie or to the casino. His evidence is replete with ‘would haves’, ‘can’t remembers’, ‘can’t be definite’.

          Incidentally, SNF has said that to her knowledge the first mention made to her by police of the dinghy sighting by Mr Hughes was of a dinghy being rowed. She had replied to them that it wasn’t/couldn’t have been the Four Winds dinghy … because it didn’t have ‘rollocks’ (row locks). The police then went back to Mr Hughes … and then the next version apparently included hearing an outboard motor which by trial time was described as an inflatable dinghy.

          • Mario says:

            Garry,
            It says in my comment that “Hughes saw an inflatable dinghy and heard its overboard motor”. Note the words “heard its overboard motor”.

            About the length of the Four Winds dinghy: Conroy measured the Four Winds dinghy to be three and a half metres in length . From page 1024 of the Trial Transcript:

            “Did you this morning measure the length of the dinghy downstairs in the garage that I’ve just tendered?……Yes, I did.
            How long was that?……Three thousand five hundred millimeters. What’s that -……..Three and a half metres or eleven and a half feet.”

            In my continuation that wasn’t published I said “manually rowed with two oars or sculled with one oar”

            As for for portion of the body Hughes was taking: he didn’t talk about the head but he said that “the person had the outline of a female” page 378, 382

          • Mario says:

            Garry,

            Irrespective of whether an adult person set on the floor of the Four Winds inflatable dinghy or on the floor of Maddock’s wooden dinghy, the chest area would be visible.

            By looking at the map of the area where Hughes was located and noted the direction that the dinghy was moving, I concluded that Hughes would have looked at the side profile of the upper torso of the person he saw (not just the head). When Hughes said ‘outline of a female’ I sssociated that with the shape of the chest that would have been visible to him.

          • Garry Stannus says:

            Thanks Mario [July 28, 2022 at 2:20 pm ]:
            1 Yes, I have noted the words “heard its outboard motor.” I’ve wondered about this for years. Mr Hughes attributed the sound of the outboard that he heard to the dinghy that he saw. At the 2nd Appeal leave application hearings three people gave evidence that at a similar time to Mr Hughes’ sighting, a motor cruiser was approaching the marina. [It was in line-of-hearing with Mr Hughes, the dinghy and the original,(as it was), seawall of the marina, beyond which (in same line) the motor cruiser was trying to anchor.

            In my view, it is possible that Mr Hughes, hearing the sound of the cruiser’s motor from the same direction as he saw the dinghy, incorrectly associated it with the dinghy which Grant Maddock was using to go out to his own yacht (and also to approach the cruiser to offer assistance in the dark).

            I have stood where Mr Hughes had viewed the dinghy from, and I have stood at the end of the old sea-wall. My estimate is that the distance of the dinghy was at least 60m from Mr Hughes and possibly as far as 150m. [I write this because as far as I can ascertain, the marina was as some stage extended north and east of the original ‘seawall’. I can not obtain a precise date for the extension].

            I accept the possibility that Mr Hughes did actually see an inflatable dinghy going out from the RYCT, just as I retain the possibility that he saw a dinghy being rowed and at the same time heard the muted sound of the motor cruiser approaching the end of the marina’s seawall. [For all readers, LISTmap is a fantastic, free, Tasmanian mapping tool – but it supplies only current data?]

            2 Thank you for supplying the transcript entry where Dtv Sgt Conroy gave the length of the Four Winds dinghy as three and a half metres or eleven and a half feet. I accept your figure. I think with my nine feet figure, I may have been piggy-backing off my own or someone else’s notes to the effect that Mr Conde has estimated the FW dinghy as being at 8-9 feet in length.

            3 Relevant to your ‘deleted’ continuation, I see that you had included the ‘two-handed’ rowing option. But I don’t think that negates your earlier comment which was along the lines of ‘surely Hughes would have noticed single-handed sculling’.

            4 Yes, without checking, Mr Hughes did talk about the occupant having the outline of a woman, But is was you, Mario, who wrote:

            Maddock is flat chested (unlike Sue). I don’t associate a flat chest with a description of an “outline of a female figure’ that Hughes said he saw on an inflatable dinghy.

            I think it’s fair enough to wonder whether the sight of long hair on a head (on a dark night at distance) could have led Hughes to say that the occupant (sitting on the floor of a distant dinghy) had the outline of someone who was possibly a woman.

          • andrew says:

            I don’t mean to spoil the party here, but really, is this supposed to be evidence of Sue Neill-Fraser returning to the yacht?

  12. Sue Marsh says:

    Finally, please let justice prevail. I still wonder how they even put the possibility of Sue being physically able to complete this task alone and of course why? The whole case appeared an impossibility with no evidence available. Beyond reasonable doubt, was not adhered to. Instead they allowed one person (with history) to cloud their judgement. Sue has had her life stolen from her for way too long. We certainly hope and pray that the judges presiding over this follow the trail of deceit and make the correct decision. Enough time has been wasted.

    • Amy Millhouse says:

      Great article. Everyone in Tasmania and Australia should be outraged with how this case has unfolded. I simply cannot fathom how cold, hard scientific evidence (the DNA of Meaghen Vass) can be described as a “red herring”. DNA evidence literally solves cases, and every single one of us should be fearful of a legal system in this state which regards scientific facts as red herrings and sends a person to prison based on a made up story with zero evidence

  13. Thank you, Andrew. You have put it before us succinctly. You are a brave man. May truth will out this time.

    What did Lindy Chamberlain’s lawyer say to her? I think it was along the lines, “The truth will set you free.” And finally it did, but an English tourist had to fall off Uluru and die for Azaria’s jacket to be found before Lindy was released. So sad.

  14. Rosemary says:

    Thank you Andrew for setting out the case so well to make sense of it for us non legal minds. But we do common sense very well. I liked your Kirby quote that when the High Court sees a miscarriage of justice it cannot turn a blind eye. And that the High Court has an obligation to fix injustices via errors in lower court processes.

    This is what we are all hoping for in Sue’s case.

    Your points on the reversing the onus of proof in the original trial are well made. And for those of us who witnessed before our eyes in the appeal of March 2021, I think you called it ‘mischievousness’; certainly covers the vagueness of the crown case.

    This is my take out quote from your article.

    “Response are the same DPP and assistant who represented the Crown at that appeal; they know full well that it was not the appellant in the dinghy.“

    Perhaps the obligation of not turning a ‘blind eye’ does not apply lower down.

  15. LizP says:

    This is so great, Andrew.

    May the High Court do justice for Sue Neill-Fraser, as they did for the late Andrew Mallard.

  16. Garry Stannus says:

    Thank you Andrew.

    For readers who may be interested, I have (this same afternoon) posted my own compilation of the Leave Application to the HCA. It is not an opinion piece, it is basically a transcription and in part, a summation of what the HCA published when in receipt of the Applicant’s leave to appeal application.

    Readers may view it on my open-to-all ‘Garry Stannus’ Facebook page [https://www.facebook.com/garry.stannus]. I would ask readers not to make comments there, on that document of mine, for reasons of possible ‘contempt of court’ and / possible jeopardising-interference with what will take place at the Court… the doc is there for information purposes only.

    We – the many of us – are vitally concerned with this application for leave to appeal. Thank you for your post – Garry.

  17. Julie says:

    May justice be served.

  18. Rodger Warren says:

    Fingers crossed Sue Neill-Fraser will get a fair outcome this time.
    However I am not confident after the previous rubbish decisions.
    Take care
    Rodger Warren

  19. Geraldine Allan says:

    A comprehensive and scholarly article. Thanks Andrew.

  20. Robert Greenshields says:

    August the 12th, let us hope that it is not just another date that will go down in infamy, and cement Australia unprogressively to the continuity of outrageous British Empire cultural aspects and flawed legislation, policing, and judicial practices.
    Sue Neill Fraser deserves to be correctly treated and heard without the incredulous contributions of pitiable public servants who, to me, and evaluating near countless
    comments on this site, obviously struggle to adhere to their oaths of office, let alone any cultures of honesty or professionalism. Obliging compliance to cultures of venality and criminality seem closer to the truth.
    While being able to respect the processes and proceedings, as a matter of consideration, I will be waiting in anticipation of the inglorious Tasmanian Policing and Judicial administrations being held to account, and Sue Neill Fraser being rid of the moral and psychological trauma she and her family have had to endure under the guise of legitimate government programs and processes.
    Keep strong Sue, the bell tolls for those cowards who rely upon deceit, disinformation, and lies to survive in our communities.

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