The second appeal against her 2010 (wrongful) conviction and 23 year sentence for the 2009 murder of her partner Bob Chappel by Sue Neill-Fraser was heard in March 2021. Wood J and Pearce J voted to dismiss the appeal while Estcourt J wrote a strongly dissenting opinion favouring the appeal and for quashing the verdict.
The Red Herring Certificate identifies prosecutors and judges who, in our sincere opinion supported by evidence, have helped bring about or retain wrongful convictions. The Inaugural Red Herring Certificate went to Tim Ellis SC, the former Tasmanian DPP whose prosecution of Sue Neill-Fraser led to what is widely regarded as a wrongful conviction. He called every element that didn’t fit his narrative a red herring.
The 2021 appeal court 2:1 decision was written by Justice Helen Wood. Her reasons were often unsupported by the rules, writes Flinders University legal academic Dr Bob Moles. The following extracts from Dr Moles’ analysis provide but a glimpse of the many errors and inconsistencies that mar her reasons, not least with her decision to dismiss the appeal, walking past the absence of evidence against the accused. His comments are in bold within [square brackets].
Justice Helen Wood (official portrait)
The Wood reasons:
“… the Director (DPP Tim Ellis) took some liberties with the evidence, or perhaps more precisely with the absence of evidence. I am not suggesting deliberately so.”
[Is it credible to suggest that a senior prosecutor could have taken such ‘liberties’ without ‘deliberation’?]
“I am not suggesting that the closing address was inconsistent with Mr Grosser’s (scientific) evidence.”
[It clearly was]
“The Director painted generalised scenarios which had not been explored in the evidence. There had been no evidence that picking up a “trace” of DNA on a person’s shoe could be transferred to a surface regardless of the viability of DNA from “anywhere” Ms Vass had been.
“Timeframes, environmental factors, may impact on secondary transfer – whether the biological material was dry or wet, the variables on the adhering of biological substance to a shoe, contact with other surfaces while walking or getting into a car. Grosser’s evidence was that as a general proposition secondary transfer was possible as a potential explanation but did not go into the variables.
The DPP strayed into ‘conjecture’
“The Director’s scenario strayed away from the evidence into conjecture. The misleading quality of the scenarios – it presented circumstances as giving rise to secondary transfer which had not been canvassed in the evidence and if they had been, would have been heavily qualified. It made it seem that any number of circumstances may feasibly give rise to secondary transfer when that had not been the subject of evidence.”
[This means the jury was misled.]
“This lack of evidence for generalised scenarios painted by the Director was apparent at the trial, and if the Director crossed the line …”
[Why is the judge expressing this as a conditional proposition? It is clear that the prosecutor did cross the line.]
“…in terms of a prosecutor’s duty, and in light of the “great trust” that jurors have in prosecution counsel, any unfairness, if it arose …”
[again, the judge expresses this as a conditional proposition rather than an assertion that unfairness had occurred]
“… could have been cured at the time of the trial or could have been the subject of the first appeal.”
[Surely the whole point of a second appeal is to deal with unfairness which has not been properly dealt with at trial or on a first appeal? Irrespective of whether the misrepresentations by the prosecutor ‘could’ have been cured at the trial, the fact is that they were not, unfairness had occurred, and the judge should determine whether it resulted in a substantial miscarriage of justice.]
*
Ellis and Wood have also earned the Red Light Demerit – a special addition to their Certificates for pushing conjecture to lead juries up the garden path. Ellis for doing it, Wood for endorsing it.
As Wood notes (as if it were of no importance) and as we have argued repeatedly, “the Director strayed into conjecture”. That is speculation, which is impermissible under the rules and sufficient to invalidate the guilty verdict. It also quietly damns trial Judge Blow for allowing the Director to “stray into conjecture”.
Ellis strayed into conjecture, for example, when he suggested the jury could draw inferences from the injuries Bob Chappell ‘would have had’ and inferences drawn from the fact that only family would dispose of a body when they kill someone …. These remarks would be laughable if not so tragic, says Dr Bob Moles. “Of course if you propose a chain of reasoning to a jury which is false and which could influence their decision – it has to be overturned – all so elementary!”
More Red Herring Certificates coming soon