[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…
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CaseChat Overview and Summary
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.
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