A Burning Issue in the Sue Neill-Fraser Case: "But she had two appeals and they failed - she must be guilty!"
It seems that a lot of people genuinely believe that Sue Neill-Fraser (SNF) must be guilty because she had two "appeals", including one to the High Court, and they both failed. In this blog posting, I try to explain the nature of those "appeals", the key issues raised in such proceedings, and the reasons why caution should be had in relation to such a view.
Firstly, it needs to be appreciated that Sue did not get an appeal in the High Court. Her application for special leave to appeal was refused. Hence, the issues were not ventilated in a proper appeal to the High Court. The High Court held on 7 September 2012 per Crennan J (with French CJ agreeing with the order):
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.
In the High Court, SNF appealed the whole of the judgment of the Court of Criminal Appeal (CCA) of the SC of Tasmania, dismissing the appellant’s appeal against conviction, given on 6 March 2012. The appeal ground that went to the High Court was:
The Court of Criminal Appeal erred in failing to hold that a miscarriage of justice resulted from the prosecutor’s failure to recall Meaghan Vass following disclosure, during the subsequent evidence of Detective Sinnitt, of matters concerning the whereabouts of Ms Vass on 26 January 2009, which matters had not been disclosed to the appellant until after Ms V gave evidence.
The High Court appeal ground was on a point of law. The High Court is in any case not able to receive new and fresh evidence.
In relation to the appeal to the Tasmanian CCA, the right of appeal is outlined in section 401 of the Tasmanian Criminal Code. The appeal (in relation to the conviction) primarily relates to a question of law, but, with leave of the Court or a certificate from the trial Judge, an appeal can involve a ground of appeal which involves a question of fact alone or a mixed question of fact and law or which appears to the Court to be a sufficient ground of appeal. Crawford CJ commented :
Insofar as she sought to appeal against the conviction, leave of the Court to appeal is required for a ground of appeal other than one which involves a question of law alone Criminal Code, s401(1). Some of the grounds of appeal raise questions of fact. However, nothing of significance should arise out of deficiencies in the notice of appeal. Because of the importance of some of the issues raised, it is appropriate to give leave to appeal.
(Note, references in square brackets below are to the paragraphs in the CCA judgment).
In relation to determination of appeals, this is covered in section 402 of the Tasmanian Criminal Code. It states that on appeal, the Court shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a MoJ, and in any other case shall dismiss the appeal. However, the Court, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, can dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred (also more generally known as “the proviso”).
The grounds of appeal to the CCA related to:
- The failure of the prosecutor to recall .... [V] which it was said resulted in a miscarriage of justice; (that is, the same ground as the High Court application)
- The suggestions made by the prosecutor in relation to the 10 January 2009 diary entry and SNF touching the winches on the yacht and the failure of the trial judge to give certain directions;
- The direction given by the trial judge in relation to the difference between murder without an intention to cause death and manslaughter;
- The failure of the trial judge to instruct the jury that they could not accept the hypotheses raised by the prosecutor that the appellant had used a wrench to kill Mr Chappell and that she had employed yellow rubber gloves and, in re-directing, in an answer to a question from the jury, by reference to the example of “hitting a man on the head with a wrench”, as those hypotheses amounted to speculation;
- The trial judge had erred in his directions in relation to circumstantial evidence;
- The trial judge had erred in his failure to direct the jury on the issue of motive;
- The trial judge erred in admitting the evidence of Phillip Triffett which involved a plan to kill from the 1990’s.
There were actually ten grounds of appeal but two of them were abandoned prior to the hearing. None of the grounds were successful . However, at court, the DPP apparently admitted that his comment was “inappropriate” in relation to the glove . In relation to the failure to recall Ms V, the court held that the ground could not succeed unless the court was persuaded that a MoJ occurred because of such failure. The Court commented :
The appellant has failed to establish that there is a significant possibility, one greater than a merely speculative one, that the jury would have acquitted her if Ms V had been recalled. It cannot be concluded that the verdict was unsafe or unsatisfactory, or that a miscarriage of justice occurred.
In relation to the wrench, the CCA held that there was no error of law made in relation to the wrench or the glove . Crawford CJ stated that the trial judge had made it clear to the jury that use of the wrench was merely a theory and there was no evidence that one was used . His Honour also held that the references by the DPP to the gloves were “insignificant in the overall context of the trial” . Further, the trial judge was not obliged to comment on everything that was raised in cross-examination or argument by counsel . Crawford CJ further commented [153-154]:
Concerning his Honour’s use of a wrench in the examples he gave to the jury, it would have been obvious to the jury that examples were being given and that the judge was not endorsing the theory raised by counsel for the Crown.
No miscarriage of justice has been demonstrated in support of the ground.
Whilst the court expressed some concern about aspects of the trial, it held that it could not be concluded that a MoJ resulted . For instance, Crawford CJ held that the suggestions made to the jury about the touching of the winch was not a significant aspect of the Crown case, whereas there was a substantial body of other evidence that was probative of guilt .
In relation to the evidence of Triffett, Crawford CJ held that the plan to kill was “strikingly similar”  and, for that reason, the evidence could rationally affect the determination of guilt. It was held that the jury would have been entitled to think that it was more than a coincidence that the circumstances of the Bob Chappell disappearance were the same as those planned by SNF, albeit many years before .
The leading judgment was given by then Crawford CJ, with Tennent J agreeing with his judgment and reasons. Porter J, whilst agreeing with the judgment, wrote a judgment expressing concern with aspects of the Phillip Triffett evidence and the possible need to give consideration to directions, which, arguably ought to be given as a matter of prudence in circumstantial cases. However, Porter J found that, of itself, the evidence of Mr Triffett was not particularly influential or significant.
The Court found that proof of the appellant’s guilt depended entirely on circumstantial evidence of which there was a great amount. It was said to be a circumstantial case made up of an accumulation of detail [per Porter J at 250].
Essentially, in summary, while there appeared to be merit in some of the grounds, the court held that there was a great amount of other circumstantial evidence, that the verdict was not unsafe or unsatisfactory, and, in any event, no substantial MoJ occurred. People do not appreciate either the circumscribed or narrow nature of appeals. Even Crennan J in the High Court special leave application found the need to comment on the other circumstantial evidence. Her Honour stated:
There were some strong aspects of the circumstantial case, were there not, not only the evidence about the scuffling (sic), but evidence in relation to a female figure being in a dinghy about the relevant time, evidence about - as I understood it anyway - the applicant having a conversation with another person about somehow dealing with her brother on a very similar basis?
Importantly, it should be noted that, whilst other circumstantial evidence was considered by the higher courts, in the appeal and the special leave to appeal application, there was no new or fresh evidence presented.
It should also be remembered that there have been a number of high profile MoJ cases which failed at appeal. The WA case of Andrew Mallard is certainly a case that falls into this category and he even failed in a proper appeal to the High Court. Lindy Chamberlain also had two failed appeals to the Full Bench of the Federal Court in 1983 and the full court of the High Court in 1984. But a very striking case in this regard is the matter of the Mickelberg brothers, yet another WA case. As Langdon and Wilson point out in their important work on MoJ cases called "When Justice Fails" (2005) ("When Justice Fails: A Follow-Up Examination of Serious Criminal Cases since 1985" Current Issues in Criminal Justice Vol.17 No.2 pp.1-18):
The appellate courts are not only reluctant to reconsider wrongful convictions (Greer 1994), but are also limited, for a variety of reasons, in reviewing all of the evidence presented at trial (Kirby 1991). And, in circumstances when appeals have been successful, these were usually based on legal technicalities rather than questions of guilt or innocence (Roberts 2003). In other instances, when appellate courts do recognise miscarriages of justice, this usually occurs quite belatedly (Thornton 1993; Brown 1997). This is exemplified by the Mickelberg case. The Mickelberg brothers' 1983 conviction for defrauding the Perth mint was quashed in July 2004 (Mickelberg v R 2004), some 20 years after the original verdict, and after eight appeals (Mayes & King 2004). (emphasis added)
In addition, Brendon L. Garrett's work in the book Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press 2011) is equally instructive (see my detailed blog for 7 July 2013). In this useful and insightful text, Garrett examines what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated in the US by DNA testing (now at 310 persons). Garrett considered the role of the judge and how well the criminal justice system handled the cases of these innocent people after their trials and convictions (p.183). He referred to the notion that a court on appeal will correct a mistaken conviction as the "Upper Court Myth" (p.183). He points out that very few cases are ever reversed on appeal and post-conviction review - no more than 1% or 2% (p.183). Referring to research in this area, he states that the appellate court knows no more than the jury and the trial judge and has a limited role. Garrett found that compared to the normal 1 to 2%, exonerees earned higher numbers of reversals - a 13% reversal rate - in criminal appeals and post conviction proceedings, that they brought before they obtained the DNA testing that exonerated them. Garrett thought that this might be the courts uncovering flaws. However, rape and murder trials apparently produce higher rates of reversible errors (p.184). Garrett stated that when these innocent people did challenge the evidence that had led to their convictions, they were very rarely successful (p.184).
Garrret stated that while many of the trial errors were "ominously harmful", the judges in the US reviewing the exonerees' claims often called these errors "harmless" and even referred to the perceived strength of the prosecution case and the likely guilt of the petitioners (p.185).