Andrew L. Urban.
August 12, 2022: The High Court today refused Sue Neill-Fraser leave to appeal her 2010 murder conviction for the 2009 murder of her partner Bob Chappell. The devastating decision comes eight days before the 13th anniversary of her arrest. (And two days before the 2019 six-part Ch. 7 docuseries on the case, Undercurrent, finally becomes available in Tasmania – see below.)
The Court, comprising Justices Gageler, Steward and Gleeson, refused special leave to appeal. The Court stated that the principles applying to a second appeal based on fresh evidence are established and that it was not persuaded that there were sufficient prospects of demonstrating that the majority of the Court of Criminal Appeal erred in applying those principles.
In a statement issued after the decision, Sue’s daughter Sarah Bowles said, “Mum has been brave and stoic for 13 years in jail, always maintaining her innocence, and we will not be deterred in our efforts to overturn what is a clear miscarriage of justice.”
The statement said the judicial system is not equipped to deal inquisitorially into the actual truth. That is a function only discharged by a properly constituted independent inquiry, as was demonstrated in the Chamberlain and Eastman cases. Sarah Bowles said, “Australia needs a better way to handle wrongful convictions such as the British system provides. Every Australian should be concerned by this case. We will continue to fight to press for an Independent Commission of Inquiry.”
At the 2012 seeking special leave to appeal, then Tasmanian DPP Tim Ellis SC convinced the two sitting justices of the High Court that he and the trial judge were right to refuse recalling Meaghan Vass to give further evidence as to how her DNA came to be at the crime scene, after new information came to light about her whereabouts (see ADDENDUM below). Leave was refused (a cause for regret among some judges).
Today, Vass again turned up at the High Court’s door, featuring in errors at the 2021 Tasmanian Court of Criminal Appeal, as claimed in the grounds of seeking special leave to appeal (see below), all about her DNA – again.
High Noon at High Court
In High Noon, the classic 1952 Western, Gary Cooper as the courageous Marshal Will Kane, has to face an outlaw gang due in town on the noon train. So it was High Noon this morning at the High Court in Canberra. It wasn’t just the justices on the video screens, Sue Neill-Fraser was ultimately facing the gang of lawless cowboys masquerading as the Tasmanian legal establishment. The gang had pursued her for 13 years, trampling on the rule of law, making up stories about her murderous behaviour, setting vicious watchdogs on anyone trying to help her or even just tell the full story. Much of old Hobart town watched in cowered silence. As the town did in High Noon. This time, the outlaw gang won the shoot-out … but in the eyes of many, remain discredited, despised outlaws.
The High Court’s decision is not only devastating for Neill-Fraser, her family, friends, and tens of thousands of her supporters, it shines the spotlight on the 2:1 dismissal of Neill-Fraser’s 2021 appeal and in particular, Justice Estcourt’s logical dissenting opinion which is echoed in the grounds put before the High Court:
Reading Part 3 of the application, the summary of the case, the High Court ought perhaps to have considered why at trial and the subsequent appeal, the DPP made every effort to diminish or dismiss the DNA evidence that put Vass at the crime scene? It was never suggested that then homeless 16 year old Vass was the killer. The logical answer is that her presence (even without her damning eye witness testimony that Neill-Fraser was not there) is powerful evidence of a reasonable alternative hypothesis consistent with the innocence of the accused.
That would have required the trial judge to direct the jury to return a verdict of not guilty. Subsequent efforts (by the ODPP and senior police spokesmen) may be seen as further attempts to protect the conviction. The conviction stands, but confidence in the legal system does not.
Justice Estcourt’s Conclusion (extracts)
“426 The relevant provisions of the Code are set out earlier in my reasons. The question may be distilled as one of whether Mr Jones’s evidence concerning the nature and quality of the DNA sample taken from the walkway of the Four Winds on 30 January 2009 and as to the likelihood of its secondary transfer, is fresh and compelling evidence within the meaning of s 402A of the Code, and whether if so, that evidence demonstrates a miscarriage of justice.
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 [linked together] 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.”
Grounds of High Court seeking leave appeal 2022
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.
These grounds focus on the DNA evidence, raising the following question:
If at the time of the trial, the jury had known that Vass had in fact been on the boat at some stage, is there a reasonable possibility it could have influenced the jury in arriving at their verdict?
Clearly Vass could have been on the boat at some time unconnected to the disappearance of Bob Chappell; she could have been there on her own, or with others. “The point is that now we don’t know which of those are real possibilities, and what the jury might have made of them. If the DNA is sufficient to create a doubt about the evidence they were given at trial, that is sufficient to set the verdict aside.
“If the DNA is a primary deposit, the DPP would have no objective basis upon which to say that it could NOT have been deposited contemporaneously with the commission of a crime – how could he know what time ‘the crime’ was committed? It is the inability to exclude that which opens up the reasonable ‘possibility’ of an explanation consistent with the innocence of the accused. If such a possibility exists, then in a circumstantial case, that is a barrier to the conviction of the accused,” comments Dr Bob Moles.
The Crown’s use of a circular argument in this case is also of concern; this error was overlooked by the trial judge. The body of Bob Chappell was not found. No murder weapon was presented to the jury. We say, not knowing the time of death, the Crown could not prove she was even at the crime scene. The Crown speculated that Neill-Fraser was on the yacht at the relevant time; the case starts with the conclusion it is trying to prove, this is what we say is impermissible circular argument.
Likewise, the prosecutor’s speculation was inadmissible, and a further error by the judge to allow it. With much of the forensic evidence inadmissible, the case is awash with appealable errors, most of which could well be High Court material.
This decision by the High Court follows the nolle prosequi entered earlier in the week as the 5-year old pervert course of justice charges were dropped against Hobart solicitor Jeff Thompson, who had worked on the Neill-Fraser case. Thompson’s barrister David Edwardson QC commented “Finally when the Judgements are published everyone will appreciate how misconceived this prosecution was and why the conduct of TASPOL in the context of this case is so reprehensible …. (Thompson’s) life and career was turned upside down by illegal conduct the details of which will be published in due course.”
The six-part docuseries, Undercurrent, premiered on January 30, 2019 (Channel 7) but was geoblocked in Tasmania. It will be now shown again on Channel 7, including in Tasmania, starting on Sunday 14 August at 10.40pm, AND all episodes are now on 7plus.
Produced by Missing Man Productions’ Eve Ash and Sydney based CJZ Productions, Undercurrent, is gripping from the start, showing the cinematic flair Ash demonstrated with her award winning 2013 doco on the same subject, Shadow of Doubt. That film raised doubts about the police investigation. This series leaves no doubt: they charged the wrong suspect.
ADDENDUM – HIGH COURT 2012
On September 7, 2012, commencing at 11.47am by videolink between Canberra and Hobart, French CJ and Crennan J heard oral arguments seeking special leave to appeal. M.J. Croucher SC and T.J. Ellis SC appeared on behalf of Sue Neill-Fraser.
Croucher opened by summing up the ground of appeal, referring to the refusal to allow Meaghan Vass to be recalled for further questioning.
MR CROUCHER: Your Honours, the special leave questions in this matter concern the appropriate tests to be applied by a trial judge upon considering an application that a witness be recalled and, in turn, how a Court of Criminal Appeal deals with a refusal thereof.
In our respectful submission, where the Court of Criminal Appeal went wrong such that it was simply a manifestly wrong decision … where his Honour said that, as far as he was concerned, it seemed that what the witness was doing on the night of 26 January seems to be peripheral when her version of events unshakably, says his Honour, was that she was not on the boat or anywhere near anywhere like that and that ultimately, he said, there is no realistic prospect of it making any difference if she were recalled.
The Court of Criminal Appeal effectively agreed in that view … So that the fact that DNA of this witness was found on the yacht, on the walkway, was a very important consideration in the first instance because it pointed to a hypothesis consistent with her innocence, namely, that someone else was involved, or at the very least someone else had been involved in an unauthorised entry.
Ellis gave the court the benefit of his speculation:
Now, the only question of her credit that could arise was did she or did she not tell the institutional accommodation where she was to be that night correctly? Had she done it in the past? When it is in the course of, clearly, several days of absence and never returning to that accommodation, in my submission, it is a nothing piece of evidence. But her credit as to that insofar as it might be affected would not advance her to be a reasonable alternative suspect to this crime in these circumstances. There is just no other connection besides DNA, one piece of DNA; no fingerprints, nothing else, and a piece of DNA found in a common walkway, not in relation to the real scene of the crime which was below decks …
He continues his completely unfounded (and impermissible) speculation about “the manipulation of a tender, a dinghy, to remove the body” … and then adds:
The question of break‑ins was, in my submission, a furphy – dismissing the very reason Vass and her companions were on the yacht.
The transcript suggests that the learned justices had not been fully briefed on the details of the case. But let’s get to the nub of the matter as it relates to our purpose here – namely to be reminded how the court’s refusal to grant leave came about.
The critical exchange:
FRENCH CJ: The question is whether the defence was deprived of the opportunity to elicit evidence which might have been supportive of a hypothesis consistent with the innocence of the accused.
MR ELLIS: It would only work on the basis in an unfair way. Through the written submissions of my learned friend it is asserted that the witness had lied to the court about her whereabouts. There is just no basis to say that. You can see from that the tenor of what would have been in court. A young girl says, “I’m not sure, I’m homeless and have been since 13, I’m confused”. “You have lied”.
The High Court had been blindsided.
Crennan J concluded:
At her trial in the Supreme Court before Blow J, the case against the applicant was mainly circumstantial. DNA evidence had been found at the scene of the crime that matched another person, Ms Vass. The latter was 15 years old at the time of the deceased’s disappearance, and had been homeless since she was 13. After Ms Vass gave evidence at trial, further evidence was given by a police officer suggesting that there were certain inconsistencies in Ms Vass’ account of her location on the night of the deceased’s disappearance. That evidence was ultimately ruled inadmissible.
On appeal to the Court of Criminal Appeal, the applicant contended, among other things, that a miscarriage of justice resulted from the prosecutor’s failure to recall Ms Vass. The Court of Criminal Appeal unanimously rejected that ground of appeal. The applicant now applies for special leave to appeal from that decision.
In our view, this application does not give rise to a question suitable to a grant of special leave as the applicant has not shown that she was denied an opportunity to produce evidence on a point of substance which can be shown to have had a significant possibility of affecting the jury’s verdict. Accordingly, special leave is refused.
At 12.35pm the matter was concluded. Those 48 minutes stretched into 10 more years behind bars for Sue Neill-Fraser.