While waiting for the judges’ decision on her March 2021 appeal, ‘What if the appeal is dismissed,’ ask readers whose confidence in Tasmania’s criminal justice system has been utterly destroyed by the prosecution of Sue Neill-Fraser, convicted in 2010 of the 2009 Australia Day murder of her partner, Bob Chappell? We sought to find out ….
In a conversation about this topic with an authority on the case, Flinders University legal academic, Dr Bob Moles, we learnt that under the ‘second or subsequent’ right to appeal provisions (passed in 2015) of the Tasmanian Criminal Code Act 1924, Neill-Fraser could mount a subsequent appeal. Such an appeal would need to be based on grounds not previously argued in the earlier appeal. As a sad indication of how many wrongs this case managed to have gathered, Moles offers a veritable menu of newly appealable errors to choose from, each capable of quashing her conviction.
On their networked knowledge database, Moles and Bibi Sangha publish a thoroughly researched academic report on the Neill-Fraser case together with its many legal flaws. Here are a few samples, from which Neill-Fraser’s legal team would be able to draw up fresh grounds for a further appeal – in a worst case scenario:
Tim Ellis SC, former Tasmanian DPP – prosecutor at trial
VALID APPEAL GROUNDS
The prosecutor’s address to the jury – prejudicial
Above all, the duty of the prosecutor is to ensure a fair trial in accordance with the rule of law.
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing [the] function of presenting the case against an accused, [the prosecution] will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.
Above all, the ‘rule of law’ principles require the various officials of the legal system to act with rationality, reasonableness, coherence, consistency and compliance with the prevailing legal norms. Qualities which were significantly lacking in the Neill-Fraser case.
The prosecution case was based upon the claim that Neill-Fraser had beaten Bob Chappell to death with a metal wrench or had stabbed him with a screwdriver.
The prosecutor developed the analysis by informing the jury that ‘wrenches had been found to be missing’. It would have been better to say that wrenches had not been found and were assumed to be missing. It was then said that ‘[a] great big fifty three foot boat, they’d need a bit more than a tiny little wrench.’ The suggestion appears to have been that the size of the missing wrench could be inferred from the size of the boat. That would have to be regarded as an invalid inference. It would be more rational to suggest that the size of a wrench would be related to the size of the equipment or machinery it was to be used on.
Sue and Bob
The development of the scenario put to the jury by the prosecutor was:
Anger, bang. Maybe once, maybe twice. But here comes the – here is perhaps the
significance of there being no body found. Why, if this is a complete stranger to
Mr Chappell and a complete stranger to the boat, would there be no body left on
board? That doesn’t make sense, does it? But if in fact it was someone who was closely connected to the boat, closely connected to Mr Chappell, and who would be able to be behind him without raising his attention because they’re known to
be in that space, where there’s only one way in. She’s walking backwards and forwards and delivers blow – a blow or blows, or maybe stabs him with a screwdriver, I don’t know, he doesn’t look round, and so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he knew and expected to be behind him.
There was no evidence whatever to support those assertions.
The jury is then told that where a person is killed by a stranger the assailant does not attempt to dispose of the body. That is clearly untrue. If any person, friend or foe, had killed Mr Chappell, they would have the same interest in disposing of the body because of the potential for there to be some evidence (possibly DNA evidence) to connect them to the body or to delay or confuse any investigation. There is no criminological hypothesis which suggests that only family members or friends will dispose of the body of a murder victim and that strangers to a victim will leave the bodies of their victims to be found by the police. There is no evidence to support the submission, ‘[s]he’s walking backwards and forwards and delivers blow – a blow or blows, or maybe stabs him with a screwdriver, I don’t know.’ There is no evidence to support the submission: He doesn’t look round, and so the body doesn’t have any marks of what you’d expect if someone had come down there, a stranger, intent on doing him harm, the body I suggest would have marks consistent only with being delivered by someone who he knew to be there, who he knew and expected to be behind him.
Given that the prosecution has already accepted, ‘we don’t have a body in this case’, then there can be no possible basis for making assertions about the type of injuries the body does or does not have.
The prosecutor also said that he knew where the body was – it was somewhere outside the search area because it was not found inside the search area. This was seriously prejudicial because it suggested to the jury that ‘there is a body’. That was in fact unknown at the time and still strictly speaking unknown now.
The prosecutor stated that the claim that the boat could have been used to courier drugs from Queensland was also fanciful and far-fetched. He failed to disclose that the Federal police in fact has a significant and dedicated task-force to intercept such boats being used for crimes of this sort. The prosecutor is obliged to disclose to the defence and the court any such material which might open up a new line of inquiry for the defence.
VALID APPEAL GROUNDS
The Judge’s summing up – prejudicial
(Among other things) the judge said that it is unlikely that Mr Chappell would have tied the extinguisher to himself and thrown himself overboard. But this is based upon an assumption (put to the jury by the prosecution) that this is in fact how his body was disposed of. There is no evidence to support it. The discussion of it by the judge in this way may have improperly influenced the jury.
Justice (now Chief Justice) Blow
He mentioned the fact that the relationship between her and Bob Chappell was not good. In this connection he cited as witnesses, the person who had helped navigate the boat down from Queensland to Hobart; an electrician who had worked on the boat, and a diesel mechanic who worked on the boat engine. This is after a 19 year relationship. None of her long term friends or family it seemed were willing to accept there was anything wrong.
The diesel mechanic expressed the opinion that they didn’t seem to be particularly intimate. Of course, diesel mechanics are not suitably qualified experts on human relationships and should not therefore be giving such opinions. It also begs the question as to what degree of intimacy people should display when talking to their diesel mechanic about how to fix the engine. Many might think that none at all is most appropriate, and that does not indicate any intention to want to do away with your partner.
VALID APPEAL GROUNDS
Testimony of forensic scientist – inadmissible
Testimony of forensic pathologist – inadmissible
…forensic evidence in this case should have been held to be inadmissible. The evidence of the forensic scientist concerning the results of the preliminary screening tests was inadmissible on the basis of legal authority and common sense. The testing agents can give a positive result to a substantial number of different substances, and the witness on many occasions says in her evidence that she does not know whether the response is to blood or other substances. The claim that blood-based responses are distinguishable is in conflict with that evidence and in any event is not substantiated by any validation studies. The frequent references to stains and positive results being references to the existence of blood would have been seriously prejudicial to the interests of the accused.
The evidence of the forensic scientist as to the meaning of the interpretation of statistical information relating to DNA was inadmissible, because on her own admission the witness was not an expert in this field. The suggestion that she would be regarded as an expert because she had overheard real experts talking about the topic is clearly contrary to legal authority.
The evidence of the forensic pathologist with regard to the ways in which an elderly person could be beaten or stabbed to death was inadmissible, because it was not based upon specialised knowledge as the Act requires and it was not a matter upon which the jury required expert assistance. It was also inadmissible because there was no factual basis in the evidence upon which the opinion could be based. Individually, and in combination, the cumulative effect of this evidence would have been to suggest to the jury that the boat and the dinghy were awash with bloodstains; that such evidence was linked in some way to the disappearance of Mr Chappell and that there may have been some correlation between those findings and the discussion about the ways in which an elderly man could be beaten or stabbed to death.
****
An appeal seeking special leave to the High Court is also open to Neill-Fraser, but would be far more restrictive and more drawn out. After Neill-Fraser’s first appeal (2011) was dismissed, she sought leave to appeal to the High Court (2012), on the grounds that the DNA of Meaghan Vass found at the crime scene was not properly canvassed at trial. Her then defence counsel, M. J. Croucher SC, argued that the finding of the DNA was a very important and powerful consideration because it pointed to a hypothesis consistent with Neill-Fraser’s innocence. There was discussion about the potential significance of her evidence with then DPP (Tim Ellis SC) arguing that there was “nothing else to connect her [Vass] or make her a remotely possible suspect except for the presence of a swab of DNA” (at page 11).
Moreover, the DPP argued (page 12), some may say surprisingly:
The core evidence was … she was not on the boat. She had no way of being on the boat. There was nothing credible suggested as to how she could be on the boat.”
Also surprisingly, some may say, the High Court accepted that submission –
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. (emphasis added)
I suspect that a third appeal is not open to Susan Neill-Fraser in the way that you describe, Andrew. Briefly, although I think that while you may have correctly reported your conversation with Bob Moles, it seems to me that Moles himself may be in error.
I’m referring to the Moles-Sangha report [http://netk.net.au/Tasmania/Neill-Fraser95.pdf]. Under the heading on p59 The ‘fresh and compelling’ test of that report, they write:
“In the case of R v Drummond (No 2), Peek J explained that where there has been false or misleading forensic evidence led at trial, or where the prosecution has put submissions at trial which are false or misleading, that will be sufficient to satisfy the ‘fresh’ and (most likely) the ‘compelling’ requirement under the Act at the leave to appeal stage.“*
In my view, that statement is incorrect. The relevant sections of the R v Drummond (No 2) judgement are paragraphs 2 & 172-174. A search of R v Drummond (No 2), at 2, 172-174 does not show any reference to false or misleading submissions – every relevant reference is to evidence (para 2: disclosure of relevant evidence, not lead false or misleading evidence; para 172: failure to disclose, not disclosed; para 173: should have been provided; para 174: disclose to the defence, will not lead false or misleading evidence.
In short, if probative evidence was not adduced at trial by the defence due to lack of disclosure by the prosecution or due to false or misleading evidence led by the prosecution, then such evidence not presented at trial may be regarded as ‘fresh’ without having to prove itself with regard to questions of ‘due diligence’.
The operative word here – it seems to me – is evidence.
It seems to me quite clear that an application by a convicted person for leave to make a second or subsequent appeal can only be granted on the basis of there being ‘fresh and compelling evidence’ in support of the application and if it is ‘in the interests of justice’ for the leave to be granted.
What fresh evidence is there in the proposition that the prosecutor’s address to the jury was prejudicial? That may have been arguable at a first appeal (because a first appeal can be made on questions of fact/law or on any ground which appears to the Court to be a sufficient ground of appeal.) … but for a second or subsequent appeal, the rules appear to be different. For 2nd or subsequent appeals, fresh and compelling evidence is required. A prosecutor’s address to a jury is not evidence, as far as I understand it.
Similarly, that the judge’s summing up was prejudicial doesn’t seem to me to belong to the ‘fresh and compelling evidence’ category. For the same reasons I would doubt whether the propositions – that the evidence of forensic scientist Debra McHoul and of forensic pathologist Christopher Lawrence were inadmissible – could be shown to be evidence and further, that it was fresh and compelling.
Sure, maybe the prosecutor’s address was prejudicial. Sure, the judge’s summing up could reasonably be seen as prejudicial. But such propositions are only opinions, in my view. How does the widely-held opinion that Justice Blow prejudiced Sue’s trial by his repeated references to wrenches … how does that turn into fresh and compelling evidence to enable a third appeal?
*[There is a footnote (207) for that quoted statement, which reads: “See the discussion of R v Drummond (No 2) [2015] SASCFC 82 in Miscarriages at 6.5.5.1.” Unfortunately, there is no list of references provided in the report to enable the source to be accessed. Perhaps it canvasses strategies such as getting leading jurists to depose, as Andrew suggests, that Mr Ellis’s address to the jury was prejudicial and that it improperly influenced the outcome, that Justice Blow’s summing up was prejudicial and that the evidence from both the forensic scientist and forensic pathologist was inadmissible. Could such depositions/documents themselves then become the new – thus ‘fresh’ – evidence?]
Bob Moles has said that “the discovery that the prosecutor or expert witness at trial said things which were either false or misleading constitutes ‘evidence’ as to what occurred at trial – as we pointed out in our book on the chapter on ‘fresh evidence’ the court will not allow technicalities to prevent them from dealing with a substantial miscarriage of justice. The point of Drummond was to assert that prosecutors and expert witnesses are obliged to comply with their legal duties and the court will not tolerate either of them attempting to secure a wrongful conviction by misleading the court and the jury. I should add that the ‘evidence’ of the forensic scientist was clearly false and misleading – the discovery of that is sufficient to trigger the grant of leave to appeal – on the appeal any other error at trial is admissible if it supports the view that there has been a miscarriage of justice.”
Thank you for obtaining the response from Bob Moles, Andrew. There is a lot in Drummond to support Bob M’s view.
My own view was focused on distinguishing 1st appeals from 2nd/subsequent appeals and on taking a direct approach to ‘fresh and compelling’ evidence. Bob Moles has made the point that “the ‘evidence’ of the forensic scientist was [allegedly] clearly false and misleading – the discovery of that is sufficient to trigger the grant of leave to appeal – on the appeal any other error at trial is admissible if it supports the view that there has been a miscarriage of justice.”
That may well be the case, but perhaps we should firstly compare the ‘parent’ South Australian legislation on 2nd/subsequent appeals with that of the Tasmanian…
‘Fresh and compelling’ get a guernsey in the relevant provisions of both states. However, while South Australia’s s353A provides for ‘fresh and compelling’ to be a ‘trigger’ for the hearing of a 2nd/subsequent appeal, Tasmania’s s402A differs: it provides for a similar trigger, but goes further, stipulating also that the Court may [only] uphold the 2nd or subsequent appeal if satisfied that there is fresh and compelling evidence showing that there had been a substantial miscarriage of justice and may dismiss it if not so satisfied.
Finally:
s402A (6) of the Tasmanian Criminal Code 1924 seems explicit:
The ‘opening of the second appeal doors’ to other matters [as referred to by Bob M. in his “on the appeal any other error at trial is admissible if it supports the view that there has been a miscarriage of justice.”] is supported by ‘Drummond’ and perhaps by ‘Keogh’ – but in my view theirs are judgements possibly reflecting just the South Australian law … and not the newer s402A provisions of the Tasmanian Criminal Code.
Thanks, and for readers who might like to read further … let me post [below] some relevant details and links – Garry Stannus.
Criminal Law Consolidation Act 1935 [S.A: 1.4.2015 to 5.8.2015 i.e. at time of Drummond decision]
353A—Second or subsequent appeals…
(1) The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(3) The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
Criminal Code Act 1924 [Tas: as at 15July2021 … s402A unamended]…
(3) A convicted person may apply to a single judge for leave to lodge a second or subsequent appeal against the conviction on the ground that there is fresh and compelling evidence.
(5) On hearing the application of a convicted person for leave to appeal, the single judge or Court –
(a) must grant leave to appeal if satisfied that –
(i) the convicted person has a reasonable case to present to the Court in support of the ground of the appeal; and
(ii) it is in the interests of justice for the leave to be granted; or
(b) must refuse to grant leave to appeal if not so satisfied.
(6) The Court may uphold the second or subsequent appeal of a convicted person if satisfied that –
(a) there is fresh and compelling evidence; and
(b) after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice.
(7) The Court may dismiss the second or subsequent appeal of a convicted person if not satisfied as specified in subsection (6) .
LINKS:
[R v DRUMMOND (NO 2) [2015] SASCFC 82 (5 June 2015) https://tinyurl.com/74zp562w%5D
see paragraphs: Blue J 305-308, Peek J 172-174; also:
Gray J “in the interests of justice” 54, “substantial miscarriage of justice” 55, “evidence properly receivable” at a 2nd appeal 260.
Tasmanian Criminal Code [Criminal Code Act 1924
https://tinyurl.com/6vhc2fmp%5D
Criminal Law Consolidation Act 1935—1.4.2015 to 5.8.2015 [https://www.legislation.sa.gov.au/LZ/C/A/CRIMINAL%20LAW%20CO6NSOLIDATION%20ACT%201935/2015.08.05/1935.2252.AUTH.PDF
https://tinyurl.com/3pezt5a8 ]
R v Keogh (No 2) [http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2015/180.html?context=1;query=R%20v%20Keogh%20;mask_path=#fn69
https://tinyurl.com/kw5wuhkh ]
Like diesel mechanics I am not qualified to assess relationships but if a picture tells a thousand words and I defy anyone to suggest the pic of Sue and Bob does not convey a very happy and loving relationship.
It says very little in the way of a positive reflection on our legal system when blatant assumptions are allowed to be considered as good as hard evidence. I’m very fed up with people that maintain she is guilty based off the court transcript like that is evidence she did it. Whether guilty or not, she did not get a fair or unbiased trial. The DPP deliberately swayed the jury and made up “evidence” to convict her. Any case he prosecuted against should be reviewed throughly. Especially in light of his own criminal actions.
Hi Jess,
Thanks for your comments.
It’s difficult though because, as one who read the court’s transcripts FIRST, it was completely obvious to me from the very start, that anyone who actually read the court’s transcripts would realise that SNF was INNOCENT!
I find it hard to think it possible that anyone, with half a brain, could not come up with that answer on just the reading of those poor transcripts from what appears to be a very poorly written film scrip – when it’s clear that this is from a REAL court matter, then the nightmare begins (especially for SNF), and concern should be raised in the minds of anyone who can read and separate facts from fiction!
I would not be holding my breath for a positive decision! The clowns down there are just that: Clowns!
Given that grounds raised in this discussion were available/known before the first (2011) appeal, is there legal provision that would allow them to be now raised as “not previously argued in the earlier appeal”?
I hope they can.
My question is prompted by the strict rules to gain second appeal & arduous efforts to overcome the “fresh” and other legislated hurdles that had to be overcome to get to a further CCA hearing?
Good question. And here is a good answer, thanks to Dr Bob Moles:
What if … continued: how another appeal by Sue Neill-Fraser could get to court