In a historic decision to grant Sue Neill-Fraser leave to appeal against her 2010 murder conviction, Justice Brett of Tasmania’s Supreme Court has exercised for the first time the legislation that only Tasmanian and South Australian parliaments have passed: a further right to appeal for those convicted of serious crimes whose first appeals have failed.
It has taken three years to wind its way through the appeal process, which dampens the celebration somewhat, but Neill-Fraser left the court last Thursday with a smile on her face as she was wheeled out in a wheelchair (due to a leg-related health complaint). She has been incarcerated since her arrest in August 2009, charged with the murder of her partner, Bob Chappell, on board their new yacht, Four Winds, on Australia Day 2009. His body has not been found and she has always maintained her innocence.
The key to her cell door – if her appeal succeeds – is the DNA found on the deck that was matched with Meaghan Vass, a then 15-year-old homeless girl. Vass last week provided the court an affidavit to the effect that she was indeed on board – in the company of two men who were planning to steal from the yacht – and she had witnessed the murder. That followed her tell-all March 10 interview on 60 Minutes where she said the same things. Vass has been terrified ever since – and not just of the killers. Police have maintained their confidence in the investigation and the conviction.
The biggest irony in this week’s granting of leave to appeal is that it is based on exactly the subject, the impact of DNA at the crime scene, on which the 2012 High Court leave to appeal failed.
In September 2012, 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 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):
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.
There was no evidence whatsoever – ‘core’ or otherwise – that she was not on the boat, nor that she had no way of being on the boat. Astonishingly, the DPP played down the DNA as if it were the ‘red herring’ he called it at trial. And he confused the question of what the presence of DNA meant, despite referring to it not being at ‘the real scene of the crime’: it did not necessarily mean that Vass was a suspect in the murder. It meant that Vass was present on the yacht when the murder took place – and was a likely source of eyewitness testimony.
But there are other grounds that can be cited to overturn the conviction once the appeal is taken to court at a date yet to be determined ranging from inadmissible forensic evidence to the prejudicial address to the jury by the prosecution and prejudicial summing up by the judge.
Andrew L. Urban is the author of Murder by the Prosecution, published by Wilkinson Press.
Illustration: ABC Television/iView.
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