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.
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.
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.
*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. In truly exceptional cases, to avoid the risk of a serious miscarriage of justice, to vindicate the law or to prevent the repetition of similar mistakes of law, 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:
- The applicant was in the general area
- The appearance of a female
- 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.
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.
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 .” 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.”
 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  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”. 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”. The decision does not prevent this Court, within the record, from reconsidering the judgment, decree, order or sentence from which the appeal comes. 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”. 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. In truly exceptional cases, to avoid the risk of a serious miscarriage of justice, to vindicate the law or to prevent the repetition of similar mistakes of law, 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.