What is Meant by the Term "Red Herring"?
I thought it would be interesting to look at the origins of the term "red herring" given the term was used extensively by the Prosecution in the trial of Sue Neill-Fraser in 2010. The Prosecution throughout the case accused the Defence of introducing “red herrings” and “setting off hares” or “laying a false trail” (see, for example, see the Court Transcript at pp. 1214, 1217, 1309, 1335, 1386 and 1395, 1399-1404, 1407-1411). At page 1214 of the transcript, the trial judge stated:
What you're saying Mr Ellis, essentially is that the - the willingness of this witness to raise red herrings to complicate matters by introducing unimportant questions or non-questions, is an indication of her guilt - is that what you're saying?
To which Mr Ellis SC responded "Yes, your Honour".
Mr Ellis SC stated in his closing address (CT pp.1399-1400):
Well I want now to just mention some of the red herrings and so on that have been thrown about. No doubt you'll hear much more about them from Mr Gunson when he speaks to you, after all it's been the way the case has been conducted I suggest, red herring, red herring, red herring, with the boats, must add up to a doubt, you've got so many red herrings. It's like that interesting program that the man from the Victorian police showed us how you can look at the bottom of the Derwent, there was a school of fish, well it could have been a school of red herrings as far as this case is concerned because that's how many have been strewn about.
The so-called "red herrings" in the trial were said to be the drugs issue (CT p.1217), not being able to remember where she parked her car (CT p.1217), the diary entry about the unlawful access to the yacht some time before 10 January 2009 (CT pp.1309 & p.1395), what was said to her by Mr King about Clare Chappell's state of mind (CT p.1403), her trip to Bunnings (CT p.1403), her apparent memory problems (CT p.1404) and the throwing of the EPIRB overboard supposedly knowing that it would not activate (CT p.1335).
However, Mr Ellis stated that there were "two big red herrings". In his closing address he stated (CT p.1407):
The two - two big red herrings that were raised in this trial were firstly the so-called other dinghy that was at Four Winds in the afternoon and the young girl, Meaghan Vass and in both cases when they were raised and pursued very, very energetically by her counsel, Mr Gunson. (emphasis added)
Wikipedia states that, in a literal sense, there is no such fish as a "red herring"; it refers to a particularly strong kipper, a fish (typically a herring) that has been strongly cured in brine and/or heavily smoked. This process makes the fish particularly pungent smelling and, with strong enough brine, turns its flesh reddish. In its literal sense as a strongly cured kipper, the term can be dated to the mid-13th century, in the poem The Treatise by Walter of Bibbesworth: "He eteþ no ffyssh But heryng red."
The origin of the expression "red herring", according to Wikipedia, has a number of theories. Conventional wisdom has long attributed it to a technique of training hounds to follow a scent, or of distracting hounds during a fox hunt, but modern linguistic research suggests that it was most likely a literary device invented in 1807 by English polemicist William Cobbett, and never an actual practice of hunters. The phrase was later borrowed to provide a formal name for the logical fallacy, and is also a formal name for a literary device or technique.
The red herring is a seemingly plausible, though ultimately, irrelevant diversionary tactic. According to the Oxford English Dictionary, a red herring may be intentional, or unintentional. It does not necessarily mean a conscious intent to mislead.
As reported in Wikipedia, the expression is mainly used to assert that an argument is not relevant to the issue being discussed. In literature, a red herring is a false clue that leads readers or characters towards a false conclusion. For example, the character of Bishop Aringarosa in Dan Brown's The Da Vinci Code is presented for most of the novel as if he is at the centre of the church's conspiracies, but is later revealed to have been innocently duped by the true antagonist of the story. Interestingly, the character's name is a loose Italian translation of "red herring" (which is clever!).
We now know of course that the DNA of Meaghan Vass was not a "big red herring" at all, after an independent expert report on the nature of the DNA sample was provided by the Victoria Police Forensic Services Department in 2014. Unfortunately, it was suggested at trial, at the Court of Criminal Appeal and in the special leave application to the High Court that this was essentially an insignificant piece of evidence. In fact, the High Court was told that the "core evidence" was that Meaghan Vass was not on the boat.
Having provided the above on "red herrings" or false trails, I will now do a separate blog on what Bret Christian from WA has written in the Introduction to his book Presumed Guilty: When Cops Get it Wrong and Courts Seal the Deal (Hardie Grant Books 2013).