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Neill-Fraser v Tasmania

Neill-Fraser v Tasmania

Case [2021] TASCCA 12 30 November 2021

Statutory Construction

Criminal Law

Evidence

Statutory Interpretation

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[2021] TASCCA 12

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Neill-Fraser v Tasmania [2021] TASCCA 12
PARTIES:	NEILL-FRASER, Susan Blyth
v
STATE OF TASMANIA
FILE NO:	2015/2019
DELIVERED ON:	30 November 2021
DELIVERED AT:	Hobart
HEARING DATE/S:	1–3 March 2021
JUDGMENT OF:	Wood J, Estcourt J, Pearce J
CATCHWORDS:

Criminal law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial, materiality and cogency – Availability at trial – Evidence in possession of Crown not disclosed to defence – Not established that evidence could not, even with the exercise of reasonable diligence, have been adduced at trial.

Criminal Code Act 1924, s 402A(6), (10)(a).
Van Beelen v The Queen [2017] HCA 48; 262 CLR 565, followed.
R v Keogh (No 2) [2014] SASCFC 136, 121 SASR 307 and R v Drummond (No 2) [2015] SASCFC 82,
applied.
Aust Dig Criminal Law [3498]

Criminal law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial, materiality and cogency – Materiality and cogency – Generally – Evidence not compelling.

Criminal Code Act 1924, s 402A(6) and (10)(b)
Van Beelen v The Queen [2017] HCA 48; 262 CLR 565, followed.
R v Keogh (No 2) [2014] SASCFC 136, 121 SASR 307 and R v Drummond (No 2) [2015] SASCFC 82,
applied.
Aust Dig Criminal Law [3498]

Criminal law – Appeal and new trial – Miscarriage of justice – Generally – Second or subsequent appeal – Substantial miscarriage of justice not demonstrated.

Criminal Code Act 1924, s 402A(6).
Mickelberg v The Queen (1998) 167 CLR 259, Van Beelen v The Queen [2017] HCA 48; 262 CLR 565,
followed.
R v Keogh (No 2) [2014] SASCFC 136, 121 SASR 307 and R v Drummond (No 2) [2015] SASCFC 82,
applied.
Aust Dig Criminal Law [3455]

REPRESENTATION:

Counsel:

Appellant: R Richter QC, C Carr SC, P Smallwood
Respondent: D Coates SC, J Shapiro

Solicitors:

Appellant: P Galbally (Galbally O'Bryan)
Respondent: Director of Public Prosecutions

Judgment Number:	[2021] TASCCA 12
Number of paragraphs:	544

Serial No 12/2021 File No 2015/2019

SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL WOOD J ESTCOURT J (Dissenting) PEARCE J 30 November 2021
Order of the Court:
Appeal dismissed

SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL
WOOD J
30 November 2021

1 On 27 October 2010 the appellant was convicted after a trial by jury of the murder of her partner Robert Adrian Chappell on or about 26 January 2009.
2 The trial was conducted before Blow J (as he then was). The Crown case consisted entirely of circumstantial evidence. In order for the jury to have found the appellant guilty, they needed to be satisfied beyond reasonable doubt that the appellant was responsible for the murder of Mr Chappell…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Neill-Fraser v Tasmania

Details

AGLC: Neill-Fraser v Tasmania [2021] TASCCA 12
Case: [2021] TASCCA 12
Decision Date: 30 November 2021

CaseChat Overview and Summary

The case of *Neill-Fraser v Tasmania* concerned an appeal against a conviction for murder. The appellant, Ms. Neill-Fraser, sought to introduce fresh evidence on appeal, arguing it was material and cogent, and that it had not been available at the time of her trial. The appeal was heard by the Full Court of the Supreme Court of Tasmania, comprising Wood J, Estcourt J, and Pearce J.

The central legal issue before the court was whether the fresh evidence, which had been in the possession of the Crown and not disclosed to the defence, could have been adduced at the trial. The court was required to determine if the defence had established that this evidence could not have been discovered and presented at trial even with the exercise of reasonable diligence.

The court's reasoning focused on the test for admitting fresh evidence on appeal in criminal matters. It was held that for fresh evidence to be admitted, it must be shown that it could not, with reasonable diligence, have been obtained for use at the trial. The court found that the appellant had not discharged this burden of proof, concluding that the evidence in question could have been discovered and adduced at trial through the exercise of reasonable diligence. Consequently, the appeal was dismissed.

Orders