Andrew L. Urban.
Here is an example of why the average person in the street cannot rely on press reports to be fully informed about matters relevant to wrongful convictions.
WEEKEND AUSTRALIAN, AUGUST 13/14, 2022
Tasmanian police officers have hailed the High Court’s rejection of the latest appeal bid by convicted murderer Susan Neill-Fraser as a vindication of detectives, forensic experts and prosecutors.
They would say that, wouldn’t they? It’s usually called ‘spin’. But the High Court was not asked to rule on the work of the detectives, forensic experts and prosecutors. The grounds of appeal were focused on the interpretation of ‘fresh’ and ‘compelling’ evidence. The Tasmanian Court of Criminal Appeal was conflicted on the issue, with a 2:1 decision.
On Friday, the High Court refused an application by Neill-Fraser for leave to appeal the Tasmanian Court of Criminal Appeal’s rejection of her second challenge to her 2010 conviction. The 68-year-old was sentenced to 23 years in jail for killing partner Bob Chappell aboard the couple’s yacht, Four Winds, on Australia Day 2009. Chappell’s body has never been found.
Police Association of Tasmania president Colin Riley said officers had always been confident in the judicial process. “We have also been confident in the integrity, thoroughness and professionalism of the investigative team, including the forensics experts, and the DPP’s prosecution case, since the initial conviction of Ms Neill-Fraser,” he said.
“However, since 2020, individual investigators and the investigation team have faced relentless scrutiny, media muck-racking and attacks.
What else could Colin Riley say? Although referring to relentless scrutiny as something to be avoided rather gives the game away. As for muck-racking, Colin Riley is accusing others of what he himself and some of his members might be accused of doing in their attempts to protect the conviction.
Then there is the massive Etter/Selby dossier on the police investigation tabled in Parliament (August 31, 2021). They found (among many other things): An inadequate investigation and tunnel vision by police, which led to obvious lines of inquiry being ignored or barely followed up. Police failure to provide to the Office of the Director of Public Prosecutions (ODPP) the full disclosure of all relevant information. Failures within the ODPP to ensure that their Director and the Defence received all the material supplied by the police. False evidence being put before the jury.
The facts remain Susan Neill-Fraser stood trial in the Supreme Court, she was convicted by a jury, her appeal was (twice) dismissed by the Court of Criminal Appeal, a coroner’s investigation reviewed all the evidence and supported the findings of the criminal proceedings. Today, the High Court rejected Ms Neill-Fraser’s (second) application for (a High Court) appeal.”
Citing the Coroner’s findings in this context is either uninformed or mischievous: the Coroner is bound by law to echo the verdict of the court. Incidentally, there have been other convictions where jury verdicts and subsequent appeals, including to the High Court, were dismissed before finally being quashed (eg Lindy Chamberlain, Henry Keogh…)
Lawyers for the Hobart grandmother wanted the High Court to consider whether a jury had given appropriate consideration to whether DNA evidence could have placed another person at the scene of the crime. High Court judges Simon Steward, Jacqueline Gleeson and Stephen Gageler “were not persuaded” by the defence’s argument and refused to hear the case.
The application for special leave to appeal centred on questions around how the DNA of a then homeless teenager, Meghan Vass, came to be found on the deck of the Four Winds. Ms Vass has given conflicting accounts of her whereabouts on the night Chappell was murdered, but told the 2010 trial she did not remember being on or near the yacht at the time.
At her 2012 appeal seeking leave to the High Court, on the ground that the defence was refused leave to recall Meaghan Vass was dismissed by the justices.
Neill-Fraser’s appeal before the Court of Criminal Appeal was dismissed last November after two of three judges rejected it. The court ruled the new evidence did not meet a required threshold of “fresh and compelling”.
During the 2010 trial, the prosecution argued the DNA deposit from Ms Vass had arrived on the deck of the boat via secondary transfer. In Neill-Fraser’s appeal, lawyers argued it was wrong to dismiss the DNA evidence and if the jury had the chance to consider the possibility it was a primary deposit, it could have raised a question of reasonable doubt.
The Tasmanian Court of Criminal Appeal found the evidence of forensic expert Maxwell Jones did not prove there was a miscarriage of justice. A dissenting view from judge Stephen Estcourt said there was a “significant possibility” the trial jury may have acquitted Neill-Fraser had it heard Mr Jones’ evidence. The High Court ruled the Tasmanian Court of Appeal had not erred and refused to hear the case.
One reason why so many lawyers and others consider the conviction unsafe is that the prosecution built its case on the most egregious prejudicial propositions. These include the absurd speculation about injuries the body of murder victim Bob Chappell “would have had”, even though the body has never been found. Would the High Court have dismissed the application had they known that?