Neill-Fraser v Tasmania
[2021] TASCCA 12
•30 November 2021
[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 and also, that her guilt was the only rational inference that could be drawn from the evidence accepted by the jury. The jury was directed by the trial judge that if there was any rational hypothesis consistent with innocence open on the evidence, the accused had to be found not guilty. The defence case at the trial was that a reasonable hypothesis consistent with her innocence had not been excluded that someone other than the appellant had killed Mr Chappell.
3 The appellant appealed her conviction and sentence to this Court. There were several grounds of appeal against conviction that were pursued on appeal, but it was not asserted that the verdict of the jury was unreasonable or unsupported by the evidence. On 6 March 2012 the appeal against conviction was dismissed, but the appeal against sentence was upheld and her sentence reduced from 26 years' imprisonment with a non-parole period of 18 years, to 23 years with a non-parole period of 13 years: Neill-Fraser v Tasmania [2012] TASCCA 2. The appellant sought leave to appeal to the High Court and special leave was refused: [2012] HCA Trans 213.
4 The appellant's statutory rights of appeal to this Court were, at that time, exhausted (see s 401 of the Code and Grierson v The King (1938) 60 CLR 432 at 435-436; Postiglione v The Queen (1997) 189 CLR 295 at 300; Burrell v The Queen [2008] HCA 34, 238 CLR 218 at 225).
5 Now, by virtue of amendments to the Criminal Code (Tas), in the form of s 402A, which came into effect on 2 November 2015, a convicted person may seek leave to bring a second or subsequent appeal to the Court of Criminal Appeal on the ground that they have fresh and compelling evidence. If the Court of Criminal Appeal is satisfied that there is such evidence and, after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice, the new provision allows the court to quash the original conviction and to either direct a judgment and verdict of acquittal to be entered or to order a new trial (s 402A(8)).
6 This Court has heard an appeal brought under the new section by the appellant against her conviction on the ground that she has fresh and compelling evidence. This is the first such appeal to be heard in Tasmania.
Background
7 Some of the circumstances of the crime and aspects of the chronology of events are
uncontentious.
8 The appellant was aged 55 and Mr Chappell was 65. The appellant and Mr Chappell were de facto partners having been in a relationship for some 20 years. They lived together at Mr Chappell's house in Allison Street, West Hobart. They had both been previously married. He had three adult children from his marriage and she had two adult children from her marriage.
9 The appellant and Mr Chappell were interested in purchasing a yacht. Ultimately they located a 53 foot ketch, the Four Winds, at Scarborough Marina in Queensland and purchased it in September 2008 for $203,000. There were a number of problems with the yacht, including mechanical issues
2 No 12/2021
with the engine and by 28 December 2008 they had spent $40,000 on expenses connected with the yacht with more expenditure required. They were considering legal action in relation to the survey they purchased because of the problems.
10 They hired two crew to assist them sailing the yacht to Hobart. They commenced sailing on 7 December 2008. Mr Chappell suffered a number of nose bleeds and had to been seen by a doctor at Southport. He was admitted to hospital for treatment and the appellant and two crew members continued to sail to Hobart. Mechanical and equipment issues marred the trip. Initially the plan was for Mr Chappell to join them in Sydney. However, the crew were concerned about his medical condition and potential difficulties in evacuating him while crossing Bass Strait, and he flew home to Tasmania.
11 The appellant and the crew arrived in Hobart late on 23 December 2008 and Mr Chappell met them on the morning of Christmas Eve.
12 On 25 January the appellant and Mr Chappell spent a day cruising to Bruny Island and return with his sister Caroline Sanchez who was visiting from Sydney. Once they arrived at Bruny Island they were unable to lower the anchor as planned because the anchor winch failed. They returned to the yacht's mooring.
13 The mooring was on the River Derwent on the western side of the river, approximately 450 metres from shore. On the shore was a beach referred to as Short Beach or the Marieville Esplanade beach. There were a number of moorings in the area and the Four Winds was moored at one of the outer moorings.
14 Marieville Esplanade is a street that follows part of the foreshore in the suburbs of Sandy Bay and Battery Point, on the western shore of the Derwent River. Marieville Esplanade provides access to the foreshore and amenities, and houses on the western side of the street. Short Beach is at the northern end of the Esplanade. At the southern end of the beach is a narrow area of reclaimed land that juts out into the river. Situated on that land is the Sandy Bay Rowing Club and rowing sheds. On the southern side of the rowing sheds is a grassed area and rocky foreshore and then the Royal Yacht Club of Tasmania and marina. The Four Winds mooring was 600 metres north-east of the Royal Yacht Club.
15 On 26 January at about 8:30am or 9:00am the appellant and Mr Chappell went out to the Four Winds on its mooring and Mr Chappell worked on the yacht. They went out to the yacht in the Four Winds tender, an inflatable dinghy with an outboard motor.
16 The appellant had arranged to return and have lunch with Ms Sanchez at the Royal Yacht Club. She took the tender into Marieville Esplanade beach and tied it up at a pole. Mr Chappell remained on the yacht. She drove to Allison Street in West Hobart, changed and went with Ms Sanchez to lunch as arranged. Later, in the afternoon, she returned to the Four Winds. Ms Sanchez gave evidence that the appellant left her at about 1:30pm. Ms Sanchez was staying with the appellant and Mr Chappell but she left the house that afternoon to spend two days on Bruny Island.
17 There is no contention that the appellant returned to the Four Winds. She gave evidence that she was assisted by a man who freed the outboard motor that was stuck in the sand. A witness, Christopher Liaubon, gave evidence that he provided that assistance at about 2:00pm. She then made her way in the dinghy to the Four Winds.
18 The evidence of the appellant was that during the afternoon Mr Chappell worked in the engine room and on the anchor winch motor. He was in and out of the engine room and had an electrical switchboard open. She gave evidence that he wanted to spend the night on the yacht to keep working.
3 No 12/2021
She left her mobile telephone with him and went to shore in the dinghy. She gave evidence that she thought she had been on the yacht for an hour at the most.
19 At about 5:40am on the morning of 27 January, the Four Winds dinghy was found by a witness bumping into the rocks in front of the rowing sheds at Marieville Esplanade. This was close to the area where the appellant had tied the dinghy up to a pole the day before. It was floating some hundreds of metres away from where the appellant said she had tied it up at the Royal Yacht Club. Its painter was inside the dinghy, which suggested that it had been put there by someone rather than simply coming undone from the ladder where the appellant said she had tied it. If it had become undone, it is likely that the painter would have been trailing in the water.
20 The witness and another man headed out in a boat and passed the Four Winds on its mooring. They noticed it was very low in the water.
21 When police boarded the Four Winds shortly after 7:00am on 27 January there were signs of a violent altercation. There was no sign of Mr Chappell and he has not been seen since. Police noticed blood on the steps to the wheelhouse and a knife on the floor. There was blood elsewhere including on a Dolphin torch in the wheelhouse. A DNA profile was obtained and it matched Mr Chappell's DNA profile.
22 When water was pumped out of the yacht, it was discovered that it had been sabotaged. One of the pipes to the toilet had been cut and a disused seacock under the flooring had been opened, in both instances allowing sea water to flow in. An automatic bilge pump and alarm system had been deactivated.
23 Police divers did not locate any trace of Mr Chappell in the water surrounding the yacht. The divers searched an area immediately around the Four Winds and to the south of it. In April 2009 sonar equipment was used to search the area. The river was up to 24 metres deep with a bottom of fine silt which made searching very difficult. Approximately 90 large items were detected with the sonar, some could be discounted, and about 15 items were dived on and checked. Mr Chappell's body was not found.
24 On the same day, 27 January, the Four Winds was towed to Constitution Dock where it was kept under police and video surveillance. The following day, 28 January, it was moved to CleanLift Marine at Goodwood and placed on a slip for inspection.
25 During the period from 28 January to 4 February, forensic scientists conducted an examination of the yacht. A screening test, luminol, which is used to test for the presence of blood, was applied and produced some positive results in various locations including on the deck of the yacht. On 30 January a swab was taken from a luminol positive area on the deck which revealed the presence of DNA of a female. At that time the DNA profile did not match the DNA of any individual on the State's DNA database. The chance of an unrelated randomly selected person also matching the profile was less than one in one hundred million. On 15 March 2010, the DNA profile was matched with the DNA profile of Meaghan Vass. She was 15 years old on the 26 January 2009.
26 Ms Vass gave evidence at the trial that she had never been on the Four Winds. She did not remember going to Constitution Dock or CleanLift Marine in Goodwood.
27 A forensic scientist, Carl Grosser, gave evidence at the trial that it was possible that a person's DNA profile could have been deposited by secondary transfer, such as if a person stepped into a bodily fluid and transferred it to the deck of the Four Winds on the sole of their shoe. He had never been involved in a case where that was known to be the cause, but said it was logically possible. As an explanation for the presence of Ms Vass's DNA, Mr Grosser's evidence of secondary transfer is highly contentious on this appeal.
4 No 12/2021
28 The inflatable dinghy also tested positive to luminol in a number of areas. Some of these returned a positive result from a hemastix test, another screening test for blood but again, not a conclusive test. These screening tests may react with agents other than blood to create false positive results. The State did not rely to any significant extent on the luminol reaction in the dinghy.
29 There was evidence that enabled the jury to readily conclude that the deceased was dead and had not staged his disappearance, that he had not met with an accident or taken his own life.
30 There was evidence of police enquiries that revealed no sign of him still being alive. His bank accounts and superannuation entitlements had not been accessed after 26 January 2009. Similarly, Medicare and the Pharmaceutical Benefits Scheme had not been accessed by him. He had not contacted any of his family members since and there have been no movements recorded in relation to his passport. There was no record of State or Federal police having had any involvement with him since his disappearance.
31 There was evidence that the deceased was not depressed or suicidal. He was employed as a physicist at the Royal Hobart Hospital and regarded his work as important. The evidence that the yacht had been scuttled, and that Mr Chappell had disappeared without a trace suggested that he did not commit suicide.
32 There was evidence that the deceased had met with violence. The evidence that the Four Winds was sabotaged, as well as the evidence of blood on the yacht and the torch supported the proposition that there had not been an accident.
33 Based on the evidence the jury was able to readily be satisfied beyond reasonable doubt that Mr Chappell was killed on the Four Winds on 26 January or early on 27 January 2009, his body was disposed of in the River Derwent and an attempt was made to sink the yacht. That finding is uncontroversial on this appeal. The controversial issue is not whether Mr Chappell was murdered but whether the appellant was responsible.
The State's case
34 The State's case was that the only reasonable explanation that could be drawn from the evidence was that the appellant was the person responsible for Mr Chappell's murder. The circumstantial case was described by this Court in the first appeal as involving a great amount of evidence and "made up of an accumulation of detail", Crawford CJ at [161], [164] per Porter J at [250]. At the risk of over-simplifying the circumstantial case, the essential aspects of it fall into the following categories:
•
evidence of the sabotage of the yacht that pointed to the saboteur as someone who had an intimate knowledge of the Four Winds.
•
evidence that the dinghy from the Four Winds had been used and abandoned in the proximity of the Four Winds during the night Mr Chappell was killed, after the appellant had used the dinghy the day before to leave the Four Winds and had tied it up securely at the nearby yacht club.
•
the movements of the appellant on Australia Day and the night of Australia Day, which placed the appellant in the vicinity of the Four Winds with opportunity to access it, during the period the deceased was killed.
•
evidence that can be categorised as motive, principally that the appellant regarded the relationship with Mr Chappell as over and that there was considerable tension between them.
•
lies told by the appellant to police and others that were capable of revealing that the appellant told the lies because of a consciousness of her guilt.
5 No 12/2021
•
conversations with a Mr Triffett approximately 12 years before in which the appellant spoke of killing Mr Chappell when he was on board a yacht, sabotaging the yacht and disposing of his body.
The defence case
35 The appellant gave evidence at the trial and denied returning to the yacht during the afternoon or night of 26 January. She denied killing Mr Chappell and denied involvement in or knowledge of the circumstances of the disappearance of Mr Chappell. In both of her police interviews and in her evidence she gave answers to the effect that she was innocent of the crime with which she was charged.
36 The evidence of motive was disputed, the defence case was that there were no difficulties with her relationship with the deceased and she did not regard it as at an end. The defence was that any statements to police or in her evidence found to be untrue were not lies told out of a consciousness of guilt. The conversations with Mr Triffett were disputed.
37 The defence case was that the jury could not be satisfied of her guilt beyond reasonable doubt. There was a reasonable hypothesis, consistent with her innocence, that another person or persons were responsible for his death.
38 The defence relied heavily upon the finding of Ms Meaghan Vass's DNA on the deck of the Four Winds and the identification of a grey dinghy tied up to the Four Winds during the late afternoon of 26 January 2009 that was inconsistent with the dinghy from the Four Winds. The defence contended that there was a reasonable hypothesis that was open on the evidence that Ms Vass had been onboard the Four Winds, and that she and/or her associates were responsible for Mr Chappell's disappearance.
39 As will be seen, for the purpose of this appeal, the appellant relies on evidence, said to be fresh and compelling, from a forensic scientist, Mr Maxwell Jones regarding the rarity of secondary transfer having occurred by someone stepping into a biological substance containing DNA and transferring it to another location on the sole of their shoe, and the circumstances required for such a transfer to have occurred. This evidence is said to undermine the plausibility of the proposition advanced by the Crown at the trial that the presence of Ms Vass's DNA could be explained by secondary transfer of her DNA on the sole of someone's shoe.
The application for leave
40 Section 402A(2) provides that before this Court may hear an appeal by a convicted person on the basis that they have fresh and compelling evidence, the person has to have been granted leave to appeal under this section. The application for leave to bring an appeal may be heard by a single judge or this Court. Subsection (3) provides: "A convicted person may apply to a single judge for leave to lodge a second or subsequent appeal against the conviction on the ground that there is fresh and compelling evidence."
41 While a single judge may hear an application for leave, the appeal itself can be heard only by the Court of Criminal Appeal.
42 Section 402A(5) provides:
"(5) On hearing the application of a convicted person for leave to appeal, the
single judge or Court –
(a) must grant leave to appeal if satisfied that – 6 No 12/2021
(i) the convicted person has a reasonable case to present to the Court in support of the ground of the appeal; and
(ii) it is in the interests of justice for the leave to be granted; or
(b) must refuse to grant leave to appeal if not so satisfied."
43 The appellant brought an application for leave to appeal her conviction on the ground that she had fresh and compelling evidence. Her application for leave was heard by Brett J and leave was granted on 21 March 2019: Neill-Fraser v Tasmania [2019] TASSC 10.
44 The evidence on the leave application included evidence of a forensic scientist, Mr Maxwell Jones, which is central to the appellant's case on the appeal and which I will summarise later in these reasons.
45 There was other relatively extensive evidence presented on the leave application which is now not relied upon by the parties. A significant number of witnesses were called by the appellant and two for the respondent. It included evidence by eye witnesses with respect to matters such as sightings of dinghies and individuals in the area at the material time, a detective who gave evidence at the trial regarding his investigations, forensic evidence of an expert, Dr Mark Reynolds, with regard to the luminol testing of the dinghy by Ms McHoul and evidence given at the trial of a winching reconstruction, evidence by Mr Colin McLaren, a retired police officer who is now an author, investigative journalist and documentary film consultant. He gave evidence of a telephone conversation with Ms Vass on 16 January 2017 and, a statutory declaration purported to have been made by Ms Vass, signed on 27 April 2017.
46 Ms Vass gave evidence on the leave application, admitting she had made the statutory declaration but denying it was true. The court was informed that a journalist's interview with Ms Vass had been aired on the 60 Minutes program. The interview was not part of the evidence but an affidavit was tendered which purported to have been sworn by Ms Vass on 25 February 2019. It included detailed admissions of Ms Vass's involvement in events onboard the Four Winds on the relevant night. In particular, Ms Vass stated that she was present on the yacht with two named male companions. She witnessed at least one of them assault Mr Chappell. She recalled seeing a lot of blood. The affidavit provided that she could not recall leaving the yacht or what happened after the assault.
47 Brett J noted in his reasons granting leave that the test for the grant of leave is satisfaction that the convicted person has a reasonable case to present to the Court of Criminal Appeal, that there is fresh and compelling evidence, and that it is in the interests of justice for leave to be granted. His Honour held that on an application for leave, he was not concerned with the question of whether, after taking into account the asserted fresh and compelling evidence, there has been a substantial miscarriage of justice.
48 His Honour made a number of observations regarding the evidence of Mr Jones but ultimately did not need to decide whether that evidence may qualify as fresh and compelling: [36], [55]. His Honour resolved the application on the basis of the out of court representations of Ms Vass which he concluded gave rise to a reasonable case to present to this Court in support of the ground of appeal.
49 As will be seen, at the hearing of the appeal before this Court, Ms Vass gave evidence and subsequently, her so-called fresh and compelling evidence was abandoned by the appellant. It was the position of the appellant expressed by her counsel during the hearing of the appeal that this Court should disregard her evidence given at the hearing of the leave application, and all of her out of court representations led at the hearing of the leave application, and her evidence given at the hearing of the appeal.
7 No 12/2021
50 It is an interesting feature of the new statutory scheme for second or subsequent appeals in Tasmania that leave to appeal may be granted based on evidence that is ultimately not pursued at the hearing of the appeal. In this respect, the new procedure in Tasmania and its two stage process with a single judge having power to grant permission to appeal, can operate in a way that is generous to appellants. The filter of the leave provision does not necessarily apply to the evidence that is ultimately advanced on appeal. Whether, if not for Ms Vass's evidence, the appellant would have been granted leave to appeal is unknown and is irrelevant to our consideration.
This appeal hearing
51 After leave was granted, a notice of appeal was lodged on 2 August 2019. The notice of appeal in its original terms set out the grounds as follows: "The Appellant appeals pursuant to s 402A of the Code on the ground that:
Ground 1: Fresh and compelling evidence establishes that there has been a
substantial miscarriage of justice.Particulars:
There is fresh and compelling evidence that:
1.1 Meaghan Vass has boarded the Four Winds, and the deceased
was attacked while she was on board.1.2 Evidence led by the prosecution at trial in relation to:
1.2.1: the results of, and inferences that could be drawn from, DNA testing; 1.2.2: the results of, and inferences that could be drawn from, Luminol testing; 1.2.3: a winching reconstruction on the Four Winds; was
misleading.
1.3 The dinghy seen near the Four Winds around the time the
deceased was attacked was not the Four Winds' tender."
52 At the commencement of the hearing of the appeal the appellant abandoned reliance on particular 1.2.3, that "a winching reconstruction of the Four Winds was misleading" and also particular 1.3, that "the dinghy seen near the Four Winds around the time the deceased was attacked was not the Four Winds' tender". In relation to particular 1.2.2, "the results of, and inferences that could be drawn from Luminol testing", it was indicated that the appellant did not seek to pursue the aspect of the luminol testing relating to the dinghy.
53 During the appeal the appellant called Ms Meaghan Vass to give evidence. She gave an account of events of the night of Australia Day in 2009, that she and three men boarded a yacht at its mooring and that there was an argument with a man who was on board and he was subjected to violence. She saw a lot of blood, panicked and vomited on the deck. During cross-examination, Ms Vass dramatically recanted her evidence and stated that her account was not correct. Before cross- examination concluded, the appellant's counsel withdrew reliance on particular 1.1, that "there is fresh and compelling evidence that Meaghan Vass had boarded the Four Winds, and the deceased was attacked while she was on board." It was conceded that "the evidence of Ms Vass cannot support the notion of fresh and compelling evidence leading to the miscarriage of justice." It was said by senior counsel for the appellant that Ms Vass could be excused from further evidence because "there was not much point in any of it." It was further conceded by the appellant that "reliance upon Ms Vass having
8 No 12/2021
been abandoned midway through her cross-examination without any re-examination is not of any
relevance to this court's task."54 The ground of appeal as it stands for determination by this Court is:
"Fresh and compelling evidence establishes that there has been a substantial
miscarriage of justiceParticulars There is fresh and compelling evidence that:
1.2: Evidence led by the prosecution at trial in relation to:
1.2.1: the results of, and inferences that could be drawn from, DNA testing; 1.2.2: the results of, and inferences that could be drawn from, Luminol
testing; was misleading."
55 The luminol testing at 1.2.2 is described by the appellant as limited to "the luminol inflorescence which appeared on the starboard side of the deck, from which a swab was taken and a full DNA profile of Meaghan Vass was identified".
56 The evidence relied upon as fresh and compelling evidence is the evidence of Maxwell Jones, given at the hearing of the leave application before Brett J, two reports by Mr Jones and an exhibit, an electropherogram. This evidence is to be considered in the context of all of the evidence at the trial. This requires consideration of the transcript of the evidence at the trial and also exhibits tendered on
the trial, and the view of the scene that was undertaken by the jury on the first day of the trial.
The statutory test
57 The test for whether the appeal should be upheld is set out in s 402A(6):
"The Court may uphold the second or subsequent appeal of a convicted person if
satisfied that –(a) there is fresh and compelling evidence; and
(b) after taking into account the fresh and compelling evidence, there has been a
substantial miscarriage of justice."
58 Section 402A (1) provides assistance in relation to key words and phrases:
"(1) In this section – convicted person means a person who, before a court of trial, has been – (a) convicted of a serious crime; or
(b) acquitted of a serious crime on the ground of insanity –
whether that conviction or acquittal occurred before or after the
commencement of this section;
fresh and compelling evidence has the meaning given by subsection (10) ;
serious crime means a crime punishable upon indictment listed in Appendix D"
59 The appellant is a "convicted person", the crime of murder is listed in Appendix D. Subsection (10)(a) provides the meaning of "fresh evidence":
9 No 12/2021
"Evidence relating to the serious crime of which a convicted person was convicted –
(a) is fresh evidence if –
(i) it was not adduced at the trial of the convicted person; and
(ii) it could not, even with the exercise of reasonable diligence, have
been adduced at that trial; and
…"
60 Subsection (10(b) of s 402A informs the meaning of "compelling evidence":
"Evidence relating to the serious crime of which a convicted person was convicted –
…
(b) is compelling evidence if –
(i) it is reliable; and
(ii) it is substantial; and
(iii) in the context of the issues in dispute at the trial of the convicted
person, it is highly probative of the case for the convicted person."
61 The statutory test under the Tasmanian Code substantially replicates the South Australian statutory model. Section 353A of the Criminal Law Consolidation Act 1935 (SA) (CLC Act) was enacted in 2013, it was later repealed and a new provision in identical terms was enacted as s 159 of the Criminal Procedure Act 1921 (SA). Section 353A of the CLC Act provided:
"(1) The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. (2) A convicted person may only appeal under this section with the permission of
the Full Court.(3) The Full Court may allow an appeal under this section if it thinks that there
was a substantial miscarriage of justice.… (6) For the purpose of subsection (1), evidence relating to an offence is –
(a) fresh if – (i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence,
have been adduced at the trial; and
(b) compelling if –
(i) it is reliable; and (ii) it is substantial; and (iii) it is highly probative in the context of the issues in dispute at
the trial of the offence."
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62 The South Australian provision is similar to the Tasmanian section in terms of providing for a permission or leave stage and a substantive appeal stage but the questions are discrete for each stage. The Full Court of South Australia may grant permission for a second or subsequent appeal against conviction by a person if satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. The questions of whether evidence is "fresh" and "compelling" arise at the leave stage. It can be seen that the definitions of both "fresh" and "compelling" are to the same effect as the Tasmanian definitions. If permission to appeal is granted, the test on the substantive appeal is whether there has been a "substantial miscarriage of justice". See the discussion in R v Bromley [2018] SASCFC 41 at [374].
63 Under the Tasmanian provision, the questions which arise, either for the judge or the Court on hearing an application for leave to appeal, are whether the convicted person has a reasonable case to present to the Court in support of the ground of the appeal and, whether it is in the interests of justice for the leave to be granted: s 402(5)(a) and (b). If the judge or Court is so satisfied, leave to appeal must be granted. Then, at the substantive appeal stage, pursuant to s 402A(6), the Court may uphold the appeal if satisfied there is fresh and compelling evidence and, after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice. The legal principles governing applications for leave in Tasmania were considered by Brett J in Neill-Fraser [2019] TASSC 10 when hearing the application for leave to appeal in this case, and his Honour addressed the considerations that arose at that stage.
64 The jurisdictions have in common the need for the courts to be satisfied that there is fresh and compelling evidence and, having taken that evidence into account, that there has been a substantial miscarriage of justice.
65 In Van Beelen v The Queen [2017] HCA 48, 262 CLR 565 the intention of s 353A was identified by the High Court as follows:
"[27] Section 353A manifests an intention that finality yield in the face of fresh and compelling evidence which, when taken with the evidence at the trial, satisfies the Full Court that there has been a substantial miscarriage of justice. If, following an unsuccessful s 353A appeal, further fresh and compelling evidence is discovered, the evident intention is that the Full Court have jurisdiction to remedy any substantial miscarriage of justice. The right to approach the Full Court directly conferred by s 353A in such a case is to be contrasted with the mechanism of executive referral in the case of a petition of mercy. The concern that a convicted person may bring successive, meritless applications under s 353A is addressed by the requirement to obtain the Full Court's permission to appeal."
66 The Second Reading Speech with respect to the amending bill in Tasmania, the Criminal Code Amendment (Second or Subsequent Appeal for Fresh and Compelling Evidence) Bill 2015, explains that the South Australian provisions "have formed the basis of this bill", Premier, House of Assembly 22 September 2015, p 48. The Second Reading Speech noted that the terms "fresh" and "compelling" are defined in the new provisions and the "definitions mirror current case law", p 49. Presumably, this is a reference to leading South Australian decisions such as R v Keogh (No 2) [2014] SASFC 136, 121 SASR 307.
67 If Parliament uses terms in a statute that have an established meaning, effect should be given to that meaning: Re Alcan (1994) 181 CLR 96. The Court in Alcan stated that there is a relevant principle of statutory construction that should be applied when Parliament re-enacts words that are almost identical to those considered in a particular decision. It was said at 106:
"There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to [them]' (39), although the validity of
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hat proposition has been questioned (40). But the presumption is considerably
strengthened in the present case by the legislative history of the Act."
68 In the case of s 402A, the presumption is strengthened by the Second Reading Speech and the legislative history of the section in following the statutory text in South Australia.
69 Accordingly, guidance is provided by South Australian decisions that have considered the meaning of "fresh" and "compelling" evidence and the concept of a "substantial miscarriage of justice". These cases are principally R v Keogh (No 2) (above) and R v Drummond (No 2) [2015] SASCFC 82.
The meaning of fresh evidence
70 The starting point for a consideration of the meaning of fresh evidence is s 402A(10)(a) which provides that evidence is fresh evidence if it was not adduced at the trial of the accused person and it could not, even with the exercise of reasonable diligence, have been adduced at the trial.
71 The Court in the South Australian case of Keogh (No 2) considered the definition of "fresh" and the statutory requirements that the evidence was not adduced at the trial and "it could not, even with the exercise of reasonable diligence, have been adduced at the trial" in s 353A(6)(a) of the CLC Act. At [102] the Court said as to these requirements:
"… The question of whether evidence was adduced at trial for the purpose of s 353A(6)(a)(i) may be determined by having regard to the transcript of evidence at trial. The requirement in s 353A(6)(a)(ii), that the evidence could not, even with the exercise of reasonable diligence, have been adduced at trial, requires an objective assessment of what the applicant could reasonably be expected to have done in all of the circumstances leading up to and including the trial."
See also MJJ v The Queen [2021] SASCFC 36 at [94].
72 The Court in Keogh (No 2) noted that the concept of fresh evidence is well known to the common law and that the common law definition of fresh evidence in the context of a first appeal (common form appeal) is not dissimilar, in a practical sense, to the definition provided in the equivalent South Australian provision, s 353A(6)(a). The Court referred to the judgment of Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 516-517 which treated fresh evidence in that context as evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. Thus, as stated by the Court at [99], "Ordinarily, an appellant will not have acted with reasonable diligence if they could reasonably be expected to have become aware of the evidence and adduced it at trial."
73 The Court at [100] noted that when considering the question of fresh evidence at common law, there are two areas of flexibility where latitude might be extended to an appellant. First, the courts will have regard to the circumstances of the accused when deciding whether the evidence could have been adduced with reasonable diligence. There is a second area of flexibility in that a court may receive evidence that is not strictly fresh if the evidence establishes that there has been a miscarriage of justice. At common law the overriding consideration before a Court of Criminal Appeal is whether there has been a miscarriage of justice.
74 The Court in Keogh (No 2) contrasted fresh evidence at common law with the terms of s 353A of the South Australian legislation, concluding that the second area of flexibility available at common law is not available. It was said in relation to appeals under s 353A that, "Only evidence that comes within the framework of the statutory definition of fresh can satisfy that element or component part of the jurisdictional fact that must be established before a second appeal can be heard".
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75 At the hearing of this appeal, counsel for the appellant highlighted a quote from the judgment of Barwick CJ in Ratten at 517-518, that appears in Keogh (No 2) at [99], and in particular the need for "great latitude" to be extended to an accused:
"… It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his decision as to the calling and treatment of evidence at the trial."
76 It can be seen that as a consequence of the Court's reasoning in Keogh (No 2), there is latitude that may be extended to an appellant in that the statutory requirement with respect to reasonable diligence involves having regard to the circumstances of the accused. However, as noted, because of the terms of the South Australian provision, there can be no latitude with respect to evidence that is not strictly "fresh" and does not satisfy the jurisdictional requirement of "fresh". This point about the need to satisfy the strict application of the statutory definition is also emphasised in Helps v The Queen (No 3) [2021] SASCFC 10 at [197]. This point applies with equal force in Tasmania to the statutory requirement of "fresh" as one of three essential requirements for upholding an appeal.
77 The decision of R v Drummond (No 2) (above) followed the approach taken in Keogh (No 2). In Drummond (No 2), the charge was kidnapping and identification was in issue. The evidence of the complainant was that there was a physical tussle. There was no evidence of a DNA result matching the complainant or the defendant on their upper clothing. A forensic scientist, Ms Mitchell, gave evidence that DNA was not always found after contact had occurred. She said that Forensic Science South Australia studies had shown that only 10 per cent of samples provided any useful information or usable DNA. This evidence was relied upon by the prosecution for the purpose of explaining why the absence of the complainant's DNA on the defendant's clothing did not exculpate the defendant. On a second appeal, relying on fresh evidence it was shown that the statistic of 10 per cent was wrong and misleading (not deliberately) and a 90 per cent figure was not unreasonable as a general guide to the effectiveness of clothing yielding contact DNA.
78 The Court was required to consider whether the evidence was fresh and compelling and applied the meaning of "fresh" that was expressed in Keogh (No 2). The application of this approach yielded different outcomes. The majority view was that the evidence was both fresh and compelling while Gray J concluded the evidence was neither. In relation to the issue of whether the evidence was "fresh", Gray J was of the view that reasonable diligence would have resulted in all or, at the very least, substantially all of the evidence before the court on appeal being available to tender at trial. It was noted that cross-examination had fundamentally undermined the weight of Ms Mitchell's evidence. Gray J added that it may be inferred that this is the reason why steps were not taken at the trial and counsel did not call for the studies.
79 In one of the two majority judgments Peek J highlighted the great trust that jurors have in prosecution counsel and forensic science experts. This passage at [108] was relied upon in the appellant's submissions:
"It must be remembered that jurors have great trust in prosecution counsel employed by the Office of the Director of Public Prosecutions and have great trust in the experts from the FSSA that are called to give evidence. I have no doubt that the jurors in the present case would have gained the firm impression that they were being told that they could confidently apply such evidence to the case before them, and that they
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could do so on the basis that the statistics referred to by Ms Mitchell were indeed
logically applicable to the present case."
80 Peek J at [170] cited Keogh (No 2) and noted the common law principle referred to by Barwick CJ in Ratten, being the need for great latitude in assessing reasonable diligence, applies to a second appeal under s 353A(1) and (2). Peek J referred to authorities in the context of common form appeals standing for the propositions that, first, there is an obligation on the prosecution in a criminal trial to disclose all relevant evidence to the accused and second, there is no obligation on an accused person to seek out information which the prosecution is obliged to produce. His Honour held at [174] that these authorities are relevant to the question of whether the evidence is fresh pursuant to s 353A of the CLC Act:
"…. when assessing whether defence counsel used reasonable diligence, one must take into account that counsel is entitled to assume that the prosecution will disclose to the defence relevant evidence and material and, a fortiori, that the prosecution will not lead false or misleading evidence as part of its case. Further, when making an assessment of whether there was reasonable diligence, the court will extend to an accused great latitude."
81 Peek J at [175] agreed with the comments of Blue J regarding the obligations of expert
witnesses.
82 Blue J also highlighted the passage from Barwick CJ and the need for great latitude as applicable to the statutory scheme for second appeals. At [311] his Honour highlighted the duties of an expert witness in proceedings, the duties of disclosure on the prosecution in criminal proceedings and the conditions of admissibility of expert opinion evidence:
"As noted above, the prosecution has an affirmative duty to make disclosure to the defence of all evidence that it intends to lead against the applicant at trial, material that would assist the defence case and in the case of scientific evidence all material matters that affect, positively or negatively, the scientific case relied on by the prosecution."
He identified six aspects of the circumstances of that case bearing on whether the evidence could with reasonable diligence, have been adduced at trial.
83 It is trite, but worth pausing to observe, that each case turns on own facts. As Peek J stated, Drummond (No 2) was highly unusual in that it involved the giving of evidence by a prosecution expert witness that subsequently had been demonstrated to be incorrect.
84 In relation to the content of the duty of disclosure on the prosecution in criminal proceedings, the duty is to disclose all material relevant to an accused's defence; it is a duty owed to the Court, not the accused. It is ongoing and includes, where appropriate, an obligation to make enquires, and is imposed upon the Crown in its broadest sense. It may extend to material known to investigating police but not known to the prosecutor: Mallard v The Queen [2005] HCA 68, 224 CLR 124; Roberts v The Queen [2020] VSCA 277 at [127]; Roberts v The Queen [2020] VSCA 58, 60 VR 431 [55]- [64]; Visser v Director of Public Prosecutions [2020] VSCA 327 at [39].
85 In Helps v The Queen (No 3) (above) the court gave attention to the question of whether evidence was "fresh" in circumstances where trial counsel had been incompetent in not seeking the evidence which could have been obtained. The plurality considered that generally the actions and inactions of legal representatives are to be attributed to an appellant, although there may be circumstances where that is not appropriate: [202]–[206]. Ordinarily, potential evidence will not be "fresh" within the meaning of the section if it was known by and available to a defendant's lawyers at trial and they made a forensic decision not to adduce it: MJJ v The Queen at [160].
The meaning of compelling evidence
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86 Section 402A(10)(b) defines compelling evidence:
"(10) Evidence relating to the serious crime of which a convicted person was
convicted –…
(b) is compelling evidence if –(i) it is reliable; and
(ii) it is substantial; and
(iii) in the context of the issues in dispute at the trial of the convicted person,
it is highly probative of the case for the convicted person."
87 The High Court decision of Van Beelen (above) considered the criteria in the definition of compelling evidence in s 353A of the CLC Act, set out above. The South Australian provision is in the same terms as the Tasmanian legislation other than the aspect of s 353A(6)(b)(iii) which provides: "it is highly probative in the context of the issues in dispute at the trial of the offence." The Tasmanian provision is expressed in terms of, "it is highly probative of the case for the convicted person". Van Beelen v The Queen concerned fresh evidence of an expert which markedly extended the period of time during which some person, other than the appellant, had the opportunity to commit the crime. It was common ground that the evidence was fresh and reliable. The Full Court of the Supreme Court of South Australia had been divided on whether the evidence was "substantial" and whether it was "highly probative" in the context of the issues in dispute at the trial. The High Court held the fresh evidence was of real significance on the issue of the time of death, and possessed the requisite high probative value given that time of death was an issue in dispute at the trial. However, the appeal was unsuccessful because the consideration of the fresh evidence did not disclose that there was a substantial miscarriage of justice.
88 The judgment of the Court considered the terms "reliable" and "substantial" and "highly
probative" at [28]:
"Nothing in the scheme of the CLCA or the extrinsic material [34] provides support for a construction of the words 'reliable', 'substantial' and 'highly probative' in other than their ordinary meaning. Understood in this way, each of the three limbs of sub- s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding [35]. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly 'substantial'. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression 'the issues in dispute at the trial' will depend upon the circumstances of the case."
Subject to the difference in wording with respect to the third criterion of highly probative, these comments have application to the Tasmanian legislation.
89 In the above quote, footnote 35 refers to Keogh (No 2) at [105] and Drummond (No 2) per Blue J at [325]. There is some further assistance to be found regarding the meaning of "substantial" in Keogh (No 2) at [106]. The Court said that "substantial" as used in the Act was a qualitative and not a quantitative notion. Evidence will be substantial, that is, of substance, if it merits being accorded weight as part of the consideration of the issue to which it relates.
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90 The Court in Keogh (No 2) considered the term "highly probative" at [107]-[109]. It was observed at [109], that "highly probative" and alternative qualifiers such as "probative" or "significant probative value" call for judgments to be made which will blend into one another, and there can be no precision to any definition. The Court's consideration of the term led to the conclusion at [109]:
"We are content to observe that evidence will be highly probative within the meaning of s 353A(6)(b)(iii) if it has a real or material bearing on the determination of a fact in issue which, in turn, may rationally affect the ultimate result in a case."
91 In DPP v TAL [2019] QCA 279 the Queensland Court of Appeal considered a provision allowing an acquitted person to be retried, which employs similar language to the Tasmanian provision but requiring that the evidence is "highly probative of the case against the acquitted person." The Court at [27] highlighted that the provision requires probative value to be considered "in the context of the issues in dispute". It was noted that this requires an appreciation of the significance of the issue towards which the fresh evidence is directed. The evidence must be highly probative of the case against an accused because of the relationship of that issue to the case for guilt.
92 That is worth noting for our purposes too. The probative value of the evidence is not considered in a vacuum but in the context of the issues in dispute, and the evidence must be highly probative of the case for the accused.
Substantial miscarriage of justice
93 The final requirement of s 402A(6) is that, after taking into account the fresh and compelling evidence, there has been a "substantial miscarriage of justice". In Van Beelen the High Court at [22]- [23] and [75], endorsed the test in Mickelberg v The Queen (1989) 167 CLR 259. The Mickelberg test is whether there is a "significant possibility" that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before the jury at the trial. Van Beelan was concerned with fresh evidence regarding the reliability of expert evidence given at the trial. The issue before the High Court was whether the appellant had established on the balance of probability that in light of fresh expert evidence taken with the evidence adduced at the trial, there was a significant possibility that a jury, acting reasonably would have acquitted. There is no argument in terms of the court's task in having regard to the evidence at the trial, that the court ought to proceed on the whole of the record of the trial and make its own independent assessment of the evidence, making allowance for the "natural limitations" that exist for an appellate court in proceeding on the record: Weiss v The Queen (2005) 224 CLR 300 at [41].
94 In the case of R v Bromley (above) at [401] and [402], the Full Court in its judgment noted two matters regarding the application of the Mickelberg test and the High Court's consideration of the test in Van Beelan at [22]-[23], [32] and [75]. The first is that the Mickelberg test looks backwards to the trial and asks whether there is a significant possibility that the jury in that trial, acting reasonably, would have acquitted the appellant had the fresh evidence been before it. The evidence is to be viewed in combination with the evidence given at trial: Mickelberg at 301, Rodi v Western Australia [2018] HCA 44, 360 ALR 54 at [28]. The second matter is that one must proceed upon the presupposition or presumption that "the accused has had a fair trial according to law on the available evidence".
95 There is a particular category of appeal that attracts a different test. A substantial miscarriage of justice may be established by demonstration of a material error or serious irregularity in the trial process. This type of case was considered in Roberts v The Queen (above). The Court was concerned with new legislation similar to the South Australian legislation allowing a second or subsequent appeal and a discrete two stage process involving permission and the substantive appeal. Section 326D of Criminal Procedure Act 2009 (Vic) provides that the Court must allow an appeal in certain cases if it is satisfied that there has been "a substantial miscarriage of justice." In Roberts the
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appellant's case was that non-disclosure of relevant evidence deprived him of a fair trial. The Court at [30] accepted that the Van Beelan (Mickleberg) test applied for the purpose of establishing a substantial miscarriage of justice and that it states the test governing fresh evidence adduced on a second appeal following conviction in the first instance at a fair trial. It was emphasised that Van Beelan did not raise any issue as to the fairness of the trial in the first instance [31]. The decision in
Van Beelan was not directed to an issue of material error or irregularity in the trial process.
96 It was held that in a case involving a material error or irregularity in the trial process the test articulated in Baini v The Queen [2012] HCA 59, 246 CLR 469 applied. In Baini, the High Court held that a substantial miscarriage of justice may be demonstrated by a serious departure from the prescribed processes for trial, or by an error or irregularity in, or in relation to, a trial in circumstances where the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial: Baini 479 [26] French CJ, Hayne, Crennan, Kiefel and Bell JJ. In cases where evidence has been wrongly admitted or wrongly been excluded, "the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made": 481 [33].
97 In this case the appellant does not suggest a serious departure from the prescribed processes for trial or a material procedural irregularity and, in fact, it was conceded by her counsel that the Mickelberg test was the correct test to be applied. There were issues raised at the hearing of the appeal about disclosure of material but only as context for the application of the test of fresh evidence, and whether the appellant acted with reasonable diligence. The appellant does not assert that there was any procedural irregularity that resulted in an unfair trial.
98 Accordingly, in considering this appeal, this Court must take a backwards view, and consider the fresh evidence in the context of the evidence at trial.
Onus of proof
99 The onus is upon the appellant to satisfy the Court on the balance of probability that the statutory conditions for upholding the appeal have been satisfied. The Court must be positively persuaded of the statutory requirements: Van Beelan v The Queen at [32]; R v Keogh (No 2) (above) at [80], [86], [102], [118].
| Summary | ||||||
| 100 | I have discussed at length relevant cases and principles that have application to s 402A of the Code. The following key principles are distilled from that discussion: | |||||
|
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have been adduced with reasonable diligence: Ratten v The Queen per Barwick CJ at 517-518;
Keogh (No 2) at [102].
•
In assessing whether the defence exercised reasonable diligence, the Court allows for the fact that defence counsel are entitled to assume that the prosecution will disclose relevant evidence and material in accordance with the duties of disclosure on the prosecution in criminal proceedings, and that the prosecution will not lead false or misleading evidence as part of its case: R v Drummond (No 2) per Peek J at [174], Blue J at [311].
•
The Court has no flexibility to take into account evidence that is not "fresh" within the meaning of s 402A(10)(a). Ultimately, the statutory requirements must be met: Keogh (No 2) at [101]; Helps v The Queen (No 3) (above) at [197].
•
In terms of the requirement that the evidence be compelling, the words "reliable", "substantial" and "highly probative" are to be taken to have their ordinary meaning. Each has work to do, although commonly there will be overlap in the satisfaction of each: Van Beelen at [28].
•
To be "reliable" the evidence must be credible and provide a trustworthy basis for fact finding: Van Beelan v The Queen at [28].
•
To be "substantial" the evidence must be of real significance or importance with respect to the matter it is tendered to prove: Van Beelan at [28]. "Substantial" is qualitative and not a quantitative notion. Evidence will be substantial, that is, of substance, if it merits being accorded weight as part of the consideration of the issue to which it relates: Keogh (No 2) at [106].
•
The probative value of the evidence must be assessed "in the context of the issues in dispute at the trial". The term "highly probative" calls for a judgment to be made. Evidence will be highly probative in that context if it is of real or material bearing with respect to the accused's case: Keogh (No 2) at [109].
•
To be a substantial miscarriage of justice, there must be a "significant possibility" that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before the jury at the trial: Mickelberg v The Queen (above), approved in Van Beelan at [22]-[23] and [75].
•
In determining whether there has been a substantial miscarriage of justice, the fresh and compelling evidence is to be viewed in combination with the evidence given at trial (Mickleberg at 301, Rodi v Western Australia (above). The court must proceed on the assumption that "the accused has had a fair trial according to law on the available evidence": Van Beelan at [23]; R v Bromley (above).
•
There is a different test in cases involving a material error or serious irregularity in the trial process and raising an issue as to the fairness of the trial. A substantial miscarriage of justice will occur where the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial: Baini at 479 [26] French CJ, Hayne, Crennan, Kiefel and Bell JJ.
The trial
The forensic examination
101 Forensic Scientist Deborah McHoul was called as a witness at the trial and gave evidence of her examination of the Four Winds and the dinghy and search for biological material. Ms McHoul
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has a Bachelor of Science Degree and a Master of Science Degree in Forensic Science. She has been
employed as a forensic scientist since April 1991.102 Between 28 January and 4 February 2009 Ms McHoul attended the vessel Four Winds on several occasions to examine it for the presence of blood. At that time it was tied to a jetty within the CleanLift premises at 6 Negara Crescent. As mentioned, she used luminol, a screening test for blood. While it is very sensitive, it is not specific to blood and can produce false positives. Once an area is sprayed with this chemical it luminesces if blood is present. The strength and nature of a reaction may indicate whether it is a true positive or false positive reaction. The other screening test used by Ms McHoul was the hemastix test (HS) which is a plastic test strip impregnated with chemicals, and when applied it produces a colour change for the presence of blood.
103 Ms McHoul observed red/brown apparent transfer staining on steps which led into the wheelhouse and red/brown drops and stains in various areas: on a wooden panel which was at the entrance way to the saloon and to the right of the wheel, and the panel on the opposite side of the entrance way, the starboard panel inside the saloon, a seat back cushion, the bulkhead above this area of seating and the paintwork behind the cushion. Some of the stains were tested with the hemastix test with a positive result for the presence of blood. There were other numerous interior areas which reacted positively to luminol testing. She observed the saloon was in disarray with cushions upturned and piled to the sides, some of the floor appeared to have been unscrewed and some of the carpet squares appeared to be missing. A large bracket, possibly for a fire extinguisher, was empty.
104 Ms McHoul's report details the results of her luminol testing of the exterior of the yacht. She reported numerous luminol positive areas present on both outside walkways on the deck described as possible drops and general stains. There were also luminol positive areas on the cabin roof, the cockpit seat and cockpit floor, and a number of locations inside the cockpit, a rope coiled on the starboard cockpit seat and in a seating area adjacent to the winch. In total, there were eight areas on the deck walkways and three in the cockpit that gave a positive reaction to luminol spray. These areas were swabbed and were either negative to the hemastix screening test or weakly positive. In the cockpit there was one luminol positive area surrounding a red/brown stain which provided a DNA profile and a strong match with the DNA profile of Robert Chappell. Only two of the areas on the deck provided a DNA profile. One of those provided a mixed DNA profile and Robert Chappell was not excluded as a contributor to that profile.
105 The other luminol positive area on the deck providing a DNA profile was described as "area 11" and was on the starboard walkway. This area was swabbed and it produced a DNA profile of an unknown person, described in the forensic report as Person E. Later, the DNA profile was matched with the DNA profile of Meaghan Vass. The luminol positive area was about 9.45 metres from the bow on the starboard walkway. It was about 250 millimetres from the rail and near the "gate" providing access to the deck if boarding the vessel. The area that reacted to luminol was approximately 210 by 260 millimetres.
106 Ms McHoul's observations and examination of the Four Winds were set out in a report of 12 June 2009. A second report, dated 1 July 2009, sets out in a tabular form a description of the items examined, including swabs that were taken from areas on the Four Winds, a description of the source of the items, a description of any samples taken from, or swabs of, an item, the results of the biological examination of items, and the results of the DNA profiling undertaken by Carl Grosser.
| 107 | The report refers to the swab from area 11 as item 20 and describes it in the following terms: "Luminol positive area 11 (possible drops). Negative with HS Screening test for blood." |
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| 108 | The source is described as: "starboard walkway, 'Four Winds', 6 Negara Cres, Goodwood". |
109 Ms McHoul explained the reference to "possible" drops. She said that it can be very difficult to tell whether you have a stain that is in the form of a drop or whether you have a drop from the spray bottle of luminol.
110 Ms McHoul gave evidence clarifying that as the swab of area 11 was luminol positive it was certainly a possibility that the substance swabbed was blood, but that cannot be assumed because of the problem with false positives. As shown in the report, the HS screening test of the area was negative for blood. In cross-examination, she referred to that and added that because luminol is so sensitive, it is possible that there was a very tiny amount of blood mixed in with some other body fluid. It is also possible that the "luminol positive result had nothing to do with what then gave that DNA result and they just happened to be adjacent to or on top of each other".
111 In cross-examination, Ms McHoul accepted that DNA processes cannot tell the age of a sample of blood. Ms McHoul stated, "… It is my understanding that if you get a result you can't say how old the sample was". Defence counsel at the trial, Mr Gunson SC asked whether it was "impossible to say how old it is, unless it's obviously wet and still dripping". Ms McHoul responded "From the DNA result alone, yes, I think that's true". Another forensic scientist called at the trial, Mr Carl Grosser, gave evidence to similar effect, "we can't actually time a DNA profile or put a specific time on when DNA was deposited on an item, we can only detect its presence and then analyse that."
DNA evidence: Carl Grosser
112 Mr Carl Grosser has a degree in science with a major in genetics. At the time of the trial he had been employed as a forensic scientist by Forensic Science Service Tasmania since 2002. A large part of his work was DNA profiling. Mr Grosser gave evidence about the DNA profiling he undertook in relation to item 20. The results of the DNA profiling are set out the forensic report dated 1 July 2009. The information provided with respect to item 20, the swab of the "DNA profile type" and whether the profile is a match or not excluded, is described as: "Full DNA profile (female)" and "Does not match any individual currently on the Tasmanian DNA database (Person E) (1 in 100 million)."
113 At the time of the profiling, the profile did not match the DNA profile of an individual on the database. Later, a reference sample from Meaghan Vass was put on the database and it was found to match the profile from item 20. As noted in the report, the chance of a person unrelated to Ms Vass matching the profile is less than one in one hundred million. As the learned trial judge informed the jury in his summing up, it was fair to conclude that the DNA found on the deck was the DNA of Meaghan Vass, especially since she gave evidence that she did not have a twin sister.
114 Once Mr Grosser had given this evidence regarding this DNA result and the match with Ms Vass, counsel for the State at the trial, the then Director of Public Prosecutions, Mr Ellis SC, commenced asking Mr Grosser a question tackling the issue that on the one hand, there was evidence from Ms Vass to the effect that she had never been on board the Four Winds and could not recall being near it, and on the other hand, a swab had been taken from the Four Winds apparently matching her DNA. Mr Gunson objected to the question on the basis that it was "not the subject of any proof at all". The trial judge allowed the question, indicating that if time was needed to plan cross- examination, counsel could ask for that time. Mr Ellis then asked how it was possible that a person's DNA may be on a surface when the person had not been there. Evidence in relation to the possibility of secondary transfer of DNA material then emerged.
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115 Mr Grosser gave evidence that it was "entirely possible" that a person's DNA profile might be found in a swab taken from a surface where they had not been. He elaborated that DNA is in bodily fluids such as blood and saliva. He stated:
"… there is a potential for that to be transferred in some way, so if for example I was to bleed onto a tissue, somebody could pick that tissue up and spot it against a wall and then there would be a blood stain on a wall that I'd never seen that potentially carried my DNA."
116 He agreed that potentially the mechanism for transfer to occur onto a walkway could be on the bottom of someone's shoe. He said, "you could step in something and transfer DNA that way, that's sort of logically what goes through my head, but again it's speculation. I can't say categorically that's what's happening in this case." Mr Grosser described that potential mechanism as a possibility. He further said:
"… Potentially anything that would be carrying a lot of DNA from that individual
could have been transferred onto that [walkway]."
117 At the end of examination in chief, despite the trial judge's invitation to take time to plan cross-examination, defence counsel moved straight into cross-examination. One of Mr Gunson's first questions concluded with the proposition that given there was "no evidence of Miss Vass being anywhere near the yacht at any stage", and then he suggested, "the likelihood of her DNA being accidentally transferred onto the yacht is near impossible?" Mr Grosser responded:
"... I – I can't make any assessment about the possibility of transfer without having some knowledge of where it may have come from, what kind of scenario we're talking about, so this feels a little bit speculative to me in that we've detected this DNA profile and all we can say is that it was present in the sample that we tested and that's the result we got. I really can't say with any degree of certainty that given a certain scenario it's impossible that it could have got there any other way than by her being present on the boat, so I'm not really sure – "
118 It was then suggested that the strongest likelihood is that Ms Vass's DNA got onto the boat by her presence on the boat. Mr Grosser responded:
"No, I can't agree. I think basically what we've got is some suggestion that there's possibly a large amount of DNA that may have originated from Miss Vass present on the boat and as to how that got there I really can't say that any one particular scenario is vastly more likely than another scenario."
119 Mr Gunson then put the question another way, "The suggestion that it was accidentally transported there is less likely than the obvious answer, which is she was there?" Mr Grosser responded:
"I don't know that I can realistically assess those two likelihoods, I – you know, if she's testified and has some particular proof that there's no way she could've been there then I would have to say that it's more likely that there's transfer onto the boat. If she had no way to say that she hasn't been anywhere near it and no proof that she hadn't been anywhere near it then I would say potentially that that may be a more likely scenario. But without any indication as to how likely it was, that she could have had access to the boat, I can't say.
120 Mr Gunson then asked whether the likelihood of it accidentally being deposited is far less than it being deposited through her presence? Mr Grosser responded:
"I really can't answer that because it does depend on whether her presence is possible or not. If we knew for instance that she was overseas skiing in Canada at the time then we would know that there was no way she could have had access to that boat and then transfer is by far the most likely scenario. If, however, we know that she was in
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Hobart and potentially around the area then each of those scenarios seems like a likely possibility to me and I can't give you any indication of the relative strengths of those possibilities."
121 Mr Gunson then asked a broader question about Mr Grosser's experience:
"How many occasions have you dealt with transfer of DNA in the sort of circumstances we're talking about, how many times have you come across it in your career?……Transfer is one of those things that's potentially quite difficult to identify so I could have inadvertently come across transfer of DNA evidence numerous times without knowing it it's not until you see…".
122 Some ground was made when his Honour posed the question:
"HIS HONOUR: Have you ever knowingly come across transference in the course of your work where someone's DNA has been transferred to a place where that person hasn't been?
WITNESS: I'm – I'm not certain that I could categorically say that I haven't, but I'd say that if I have it would be very rare."
123 Cross-examination continued and Mr Grosser said that without going back through his cases, he believed he had not identified transfer. He explained that the problem with being able to identify transfer is that it requires additional knowledge but "typically when we're doing our DNA profiling we're not privy to any of this additional information". He said that while, quite frequently, defence lawyers suggest transfer as an explanation, "Normally I'm in a position where I say that I can't make any inference either way as to how that could have occurred. I'd agree that both possibilities are possibilities."
124 He said he did not believe he had come across DNA that has been known categorically to have been carried from one place to another through spittle or something on the ground that has been transferred by walking. When asked about whether he had seen transfer "on a shoe", he replied "I don't believe I've seen any of that."
125 Before leaving Mr Grosser's evidence, I note that during cross-examination Mr Grosser gave evidence of general relevance that on the assumption Ms Vass had been on board the boat she could have left her DNA behind in a bodily substance, "potentially blood, saliva, sometimes even contact, you can have DNA in your sweat and if you touch something you could leave DNA behind that way."
Mr Grosser's email to Detective Sinnitt
126 Later in the trial, Detective Senior Constable Shane Sinnitt gave evidence with respect to aspects of the police investigation and, in particular, enquiries he made concerning Meaghan Vass which I will return to. He referred to a folder of information which he had with him while he gave evidence but which was not tendered as an exhibit on the trial. Mr Gunson sought the opportunity to read the contents of the folder. It included an email exchange with Mr Grosser. This exchange had not previously been disclosed and Mr Gunson had not seen the emails at the time he cross-examined Mr Grosser. The email exchange included the following from Mr Grosser to Detective Sinnitt on 18 March 2010:
"This was an area (the black outline in the photos) that was positive with luminol, which suggests the presence of blood. However our testing of the swab taken from this area was negative for the blood screening test, suggesting that we cannot confirm the presence of blood. Given the strong DNA profile that we obtained from this swab I'd suggest that this is indicative of the presence of a relatively large amount of DNA which is more likely to come from body fluids (blood, saliva etc) than a simple contact/touching event.
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So, basically we cannot say with any certainty where the DNA may have come from. The positive luminol result suggests that the source may have been blood, and the fact that this was an external surface means that there may have been washing or weathering events that have prevented us from being able to definitively identify the presence of blood. More complex scenarios, such as the luminol result coming from an older event (eg an old stain) which has been overlayed by a more recent event which is where the DNA came from (eg spitting onto the deck), cannot be ruled out. "
127 The disclosure of this email gave rise to an application by the defence to recall Mr Grosser. As I will come to shortly, this application and an application to recall Meaghan Vass were refused by the learned trial judge.
Meaghan Vass
128 Meaghan Vass was called at the trial. At the time she gave evidence she was 16 years of age. In January 2009 she was 15. The police had not been able to obtain a statement from her. She gave evidence first in the absence of the jury on a Basha inquiry which enabled defence counsel to hear her account and to cross-examine her in the absence of the jury. This procedure is often adopted by trial judges in cases where defence counsel have not had an opportunity to cross-examine a witness in preliminary proceedings.
512 Further, in my assessment, the evidence of the two witnesses in other respects was similar, subject to what I regard as subtle differences of expression, context and emphasis:
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• Mr Grosser told the jury that "potentially anything that would be carrying a lot of DNA from that individual could have been transferred onto [the deck]". Mr Jones contemplated that to enable secondary transfer he would "expect there to be a significantly large amount of biological material on the shoe to begin with". • Mr Grosser told the jury that he could not recall a case in which he had come across transfer of DNA to a place that the person "hasn't been", but that if he had it was very rare. Mr Jones thought that secondary transfer in this case would require a "specific set of circumstances", or "ideal conditions", but that he could not exclude "a very rare occurrence occurring". • Mr Jones all but excluded the DNA having been present as a result of a "touch scenario". Mr Grosser, leaving aside the email which was not before the jury, did not contemplate secondary transfer by "touch" and confined his evidence to transfer of bodily fluids, blood and saliva. • Although both men were asked about the specific scenario of transfer of DNA by means of the bottom of a shoe, neither expert confined their respective expressions of opinion to that scenario. • With the possible exception of the limited evidence that the premises at Goodwood had been broken into, neither witness was aware of any other evidence which tended to explain how Meaghan Vass's DNA could have been transferred onto the Four Winds, on the bottom of a shoe or otherwise. 513 In my view it has not been demonstrated that, even were Mr Jones's evidence to be accepted in full, Mr Grosser's evidence was, to any degree, in error. There was little, if any, inconsistency between his evidence and that of Mr Jones. It was submitted by counsel for the appellant to this Court that there was a "stark" distinction between the evidence of Mr Grosser and Mr Jones. When asked to identify the evidence in support of that submission it was contended that the distinction was apparent from the "sum total" of the evidence of one when compared with the evidence of the other, and that while Mr Jones accepted the possibility of secondary transfer, it was his elaboration of the kind of circumstances which would be required for secondary transfer to have occurred which distinguished his evidence from that of Mr Grosser. It was not contended by the appellant that Mr Jones's elaboration of circumstances, a required specific chain of events, was inconsistent with the evidence of Mr Grosser. Rather, the submission was that the evidence was inconsistent with the case argued by the prosecution at trial, and the absence of it enabled the prosecution to suggest the "plausibility" of the transfer scenario advanced in closing. According to the appellant it enabled the prosecution to "deconstruct" the defence case. I would accept, for the purposes of determining this appeal, that Mr Jones placed emphasis on his opinion that the nature of the profile was strongly suggestive of having come from bodily fluid rather than touch (albeit noting that Mr Grosser made no suggestion to the contrary), and paid greater attention to the nature of the circumstances which might be required to facilitate the transfer of bodily fluid, such as to result in a profile of the one obtained in this case. Mr Jones also gave an opinion on one matter not touched upon by Mr Grosser, that is, that were the tread of a shoe retaining a substantial amount of moist biological substance the likely means of the transference, then other similar staining would likely have been deposited on the deck.
The legislative provisions and the grant of leave
514 Section 402A(6) provides:
"The Court may uphold the second or subsequent appeal of a convicted person if
satisfied that –
(a) there is fresh and compelling evidence; and (b) after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice."
515 By s 402(10)(a), evidence:
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"(a) is fresh evidence if –
(i) it was not adduced at the trial of the convicted person; and (ii) it could not, even with the exercise of reasonable diligence, have been adduced at that trial; and (b) is compelling evidence if –
(i) it is reliable; and (ii) it is substantial; and (iii) in the context of the issues in dispute at the trial of the convicted person, it is highly probative of the case for the convicted person."
516 The concepts of what is fresh evidence and compelling evidence are based on the terms of the analogous South Australian legislation considered in R v Keogh (No 2) [2014] SASCFC 136, 121 SASR 307 and R v Drummond (No 2) [2015] SASCFC 82. I would accept that the approach adopted in those cases should guide the approach of this Court to the expressions used in s 402A. As to whether there has been a substantial miscarriage of justice, Van Beelen v The Queen (above) at [22], authoritatively establishes that the test to be applied is that which was stated by the majority in Mickelberg v The Queen (1998) 167 CLR 259: whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial.
517 The South Australian provision considered in Keogh and Drummond was the Criminal Law Consolidation Act 1935 (SA), s 353A. It is similar to the Tasmanian provision, but not the same. In South Australia, a convicted person was required to establish that there is evidence which is fresh and compelling and should, in the interests of justice, be considered on an appeal as a pre-condition to the exercise of the jurisdiction of the appellate court to hear the second appeal. A convicted person may only appeal with permission of the Full Court, and the Full Court may only allow the appeal if satisfied that there was a substantial miscarriage of justice. In Tasmania, leave to appeal is required: s 402A(2). However, leave must be granted if the convicted person establishes that he or she "has a reasonable case to present to the Court in support of the ground of the appeal", s 402A(5)(a)(i), and it is "in the interests of justice for leave to be granted", s 402A(5)(a)(ii). The grant of leave was made in this case on the basis of different contentions and substantially different evidence than is now before this Court. The primary reason given by Brett J for the grant of leave concerned evidence given by and concerning Meaghan Vass, and out-of-court statements made by her since the trial. During the hearing of this appeal the appellant called evidence from Ms Vass. In the course of her evidence the appellant expressly withdrew any reliance on the contention that evidence from Meaghan Vass was fresh and compelling. It must follow, even if not part of the express concession, that it could not be contended that any of the related evidence before Brett J on the application for leave about out-of- court statements made by Ms Vass since the trial could be regarded as a credible or reliable basis for fact finding, and no reliance was placed on that evidence by the appellant. The appellant also withdrew reliance on grounds referring to other evidence asserted at the time of the application for leave, to be fresh and compelling. This appeal is confined to the contention that Mr Jones's evidence about the DNA testing of the sample said to contain the DNA of Meaghan Vass taken from the luminol positive area on the deck is fresh and compelling and demonstrates a substantial miscarriage of justice.
Is the evidence from Mr Jones fresh evidence?
518 The appellant must establish that the evidence could not have, even with the exercise of reasonable diligence, been adduced at trial. As to the definition of "fresh" used in the South Australian legislation, in R v Keogh (No 2), Gray, Sulan and Nicholson JJ said at [102]:
"An applicant bears the onus of establishing that evidence relied upon for this purpose is fresh. The question of whether evidence was adduced at trial for the purpose of
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353A(6)(a)(i) may be determined by having regard to the transcript of evidence at trial. The requirement in s 353A(6)(a)(ii), that the evidence could not, even with the exercise of reasonable diligence, have been adduced at trial, requires an objective assessment of what the applicant could reasonably be expected to have done in all of the circumstances leading up to and including the trial."
519 It is trite to observe that determination of what the exercise of reasonable diligence may or may not involve is a judgment to be made on the factual circumstances of a particular case. This is a not case in which any of the evidence given by Mr Jones was not available to be given at the trial. Mr Jones did not contend that his opinion involved the consideration of new scientific knowledge, techniques or studies not available at the time of trial. It is not contended that his opinion was based on any material which did not already exist at the time of trial. He agreed that his laboratory was operating in 2009, that it used much the same technology used by the Tasmanian laboratory, that he was sometimes consulted for advice by defence counsel, and that in 2010, given access to the same material upon which his opinion was based, his evidence would have been exactly the same. He also said that such evidence could have been given at trial by numerous other expert witnesses located throughout Australia who routinely provide advice, reports and evidence on such matters, including on behalf of accused persons.
520 The question in this case is whether, in the circumstances of this trial, the appellant could not have adduced the evidence even with the exercise of reasonable diligence. As the plurality pointed out in Keogh (No 2) at [99], citing Barwick CJ in Ratten v The Queen (1974) 13 CLR 510 at 516-517, ordinarily, an appellant will not have acted with reasonable diligence if he or she could reasonably be expected to have become aware of the evidence and adduced it at trial.
521 The appellant's primary submission is that, even with reasonable diligence, the appellant could not have adduced the evidence now adduced from Mr Jones. That is, it could not even with reasonable diligence, have investigated an alternative opinion about the matters which became the subject of Mr Grosser's evidence. That was so, the appellant contends, because, in breach of its duty of disclosure, the prosecution gave no notice to the appellant of the intention to lead evidence from Mr Grosser about the possibility that DNA matching that of Ms Vass had been transferred onto the yacht, and no notice of what Mr Grosser's evidence about that issue would be. As part of that submission the appellant contends that there was a related failure to disclose the electropherogram, as well as the contents of Mr Grosser's email to Detective Sinnitt to the effect that the strength of the DNA profile obtained from the swab was indicative of the presence of a relatively large amount of DNA more likely to have come from bodily fluid than by a contact touching event.
522 It may be accepted that compliance with the prosecution duty of full disclosure is a fundamentally important aspect of a fair criminal trial. It is ordinarily expressed as a duty to give an accused adequate notice of the case which is to be made against him or her, and to disclose all relevant evidence: see Grey v The Queen [2001] HCA 65, 75 ALJR 1708. See also the recent analysis of the duty in Roberts v The Queen [2020] VSCA 58, 60 VR 431 at [55] and following. A breach of duty here is not advanced as a material irregularity in the conduct of the trial, but in the context of determining whether Mr Jones's evidence could not have been adduced, even with reasonable diligence. The contention advanced by the appellant is that the absence of notice by the prosecution to adduce evidence from Mr Grosser about the relative possibility of the presence of the DNA being explained by direct deposit or secondary transfer effectively deprived the appellant of the opportunity to adduce evidence relevant to that issue. In my view, the contention does not, in the circumstances of this case, withstand scrutiny.
523 Well in advance of the trial, the appellant was given notice of the results of all of the scientific investigations conducted by the forensic scientists. Comprehensive reports were delivered which included an express indication that the full notes and details of the test methods and results of examinations and tests were available to defence counsel. The reports indicated that FSST "provides
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an impartial service and defence counsel are encouraged to contact the authors directly for clarification of any aspect of this report, without prejudice." Both scientists were cross-examined in preliminary proceedings.
524 Ms McHoul's forensic biology scene examination report dated 12 June 2019 described all of the luminol positive areas she found in the interior and on the exterior of the yacht. She collected at least 61 items from the yacht on various dates, including 24 swabs taken from luminol positive areas. Of those swabs, 12, on my count, were taken from the deck of the yacht or on, in, or adjacent to the cabin or cockpit. Following the DNA profiling conducted by Mr Grosser, the sample ultimately shown to contain DNA matching that of Ms Vass was reported as "Full DNA profile (female)." In the reports, the term "Full profile" was not defined. However the term "Partial profile" was defined as "an incomplete profile where some DNA characteristics have not been detected". It was readily to be inferred that a full profile was a complete profile in which all DNA characteristics were detected. The nature of the profile was to be contrasted with the results of the profiles obtained from other similar swabs of luminol positive areas which were variously reported as, in one case, a full male profile matching that of Bob Chappell, and others either containing no DNA profile or partial profiles from which no reliable conclusions concerning possible contributors could be drawn. Some contained male DNA and some were inconclusive as to gender. One was a mixed profile with at least three contributors with male DNA present, from which Mr Chappell was not excluded, with a probability ratio of 1 in 10, but inconclusive as to female DNA. Of the luminol positive areas I have described, eight, including the swab reported at item 20 from area 11, were negative to the HS screening test for blood. The swab containing DNA matching that of Mr Chappell was weakly positive to the presence of blood. Two other swabs, one taken from the seat in the cockpit, and another from the starboard walkway adjacent to the cockpit, were weakly positive to the HS screening test for blood. None of the samples were made subject to the confirmatory test for the presence of blood.
525 When it became known that the full DNA profile in the swab taken from the starboard walkway matched that of Meaghan Vass, the relevance of how that DNA may have come to be present on the yacht to the issue of whether she may have been present on the yacht at the time of Mr Chappell's murder was obvious to anyone, still more so experienced counsel. It may have been that counsel for the appellant at trial made a forensic assumption that, in the absence of a proof of evidence to be adduced from Mr Grosser, no evidence would be adduced by the prosecution about how DNA may be present in a particular location. It may have been thought advantageous to the defence that the jury would, absent any further evidence, have been left simply with the unexplained presence of Meaghan Vass's DNA on the yacht. The appellant now contends that, until evidence on the question was led from Mr Grosser, no occasion for enquiry by the defence arose. Put another way, that the failure of the prosecution to give notice of the evidence led from Mr Grosser meant that by the time it was in fact given, the evidence now relied upon could not have been adduced. I would accept that, until Mr Grosser gave his evidence, the defence had no notice of what he would say about the possible explanation for the presence of the DNA. That is not to say, however, that evidence relevant to the relative likelihood of direct deposit, as opposed to secondary transfer, could not, with reasonable diligence, have been obtained by the appellant. The available evidence on that question was, prior to trial, no different than it is today. There was no impediment at all to a request for expert opinion on that subject.
526 With due allowance for the very unfortunate fact that senior counsel for the appellant, Mr D Gunson SC, died in 2018, there is no evidence adduced by the appellant in this appeal that no enquiries about the relevant significance of the DNA profile were made prior to trial, or if not, why not. Mr Jones's evidence has been known since 2014. The amendment to the legislation permitting this appeal occurred at the end of 2015. The appellant's case on appeal is not assisted by any evidence of the reason that no enquiry was made about the nature of the DNA sample and what, if any, inferences could be drawn from it, or that further evidence would have been sought for the defence at trial had notice of the proposed evidence from Mr Grosser been made the subject of a proof of
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evidence prior to trial. I accept that it may be inferred from the objection to the relevant parts of Mr Grosser's evidence that no such enquiry had been made. However, to me, that does not adequately explain the absence of any enquiry about what is now described as a "pillar" of the defence case when such evidence was available.
527 Moreover, I am not persuaded that the reasonable opportunity to adduce the evidence now relied on was lost by late notice of Mr Grosser's evidence. Although an objection to the evidence was overruled, the trial judge offered the defence the opportunity to ask for time to prepare cross- examination. No adjournment application was made either to prepare for cross-examination or to investigate further evidence. Cross-examination of Mr Grosser on the relevant questions occurred. Mr Grosser's evidence was given on 29 September 2010. Detective Sinnit's evidence which led to discovery of the email from Mr Grosser was given on 30 September 2010, at which time counsel for the appellant became aware of Mr Grosser's opinion that the sample of DNA was of a nature more likely to come from bodily fluids than a touching event. In the course of the application to recall Ms Vass and Mr Grosser, made on that day, counsel for the appellant submitted to the trial judge that he intended to submit to the jury that "they can draw the inference that given the level of DNA on the deck that that girl was on that boat at some stage." The appellant was not called upon to make her election until 11 October 2010, when she elected to give but not adduce evidence. Without more, even with allowance for the demands of trial, there appears to have been an opportunity, with reasonable diligence, for enquiry on behalf of the defence about the availability of the evidence now relied on. Again, the appellant's contention that the evidence is fresh is not assisted by any evidence that enquiry was made, the result of any enquiry, or that there was a reason it was not. That the evidence could well have been adduced at trial is demonstrated, to my mind, by the relative ease with which an opinion was ultimately obtained from Mr Jones on material which existed at the time of trial and was readily available.
528 The appellant submits that "great allowance" should be extended to a convicted person when considering whether evidence could not, with reasonable diligence, have been adduced. I agree with the approach taken by Stanley and Doyle JJ in Helps v The Queen (No 3) [2021] SASCFC 10 at [198]- [202] and their Honours' remarks about the need to maintain a robust threshold for the hearing of second or subsequent appeals in accordance with the principle of finality. Their Honours were considering the South Australian legislation which required demonstration of fresh evidence as a condition to the exercise of jurisdiction to consider a second appeal. The principles apply with equal force when considering the position in Tasmania which limit the circumstances in which this Court may uphold an appeal. However, in this case, even with allowance for the latitude to be extended to an accused contemplated by the court in Keogh (No 2), deriving from the statements of Barwick CJ in Ratten v The Queen (above), the appellant has not established that the evidence could not, with the exercise of reasonable diligence, have been adduced at trial and is thus not fresh.
Is the evidence from Mr Jones compelling?
529 The appellant must, in accordance with the terms of s 402A(10)(b), establish that the evidence is reliable, substantial and, in the context of the issues in dispute at the trial of the appellant, highly probative of the case for the convicted person. In Van Beelen v The Queen (above) at 578, the Court addressed the terms "reliable" and "substantial" and "highly probative" at [28]:
"Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words 'reliable', 'substantial' and 'highly probative' in other than their ordinary meaning. Understood in this way, each of the three limbs of sub- s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly 'substantial'. Evidence that meets the criteria of reliability and substantiality will often
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meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression 'the issues in dispute at the trial' will depend upon the circumstances of the case." [Footnotes omitted.]
530 The criterion of reliability thus requires the evidence to be credible and provide a trustworthy basis for fact-finding: Van Beelen v The Queen at [28] citing Keogh (No 2) (above) at [105] and R v Drummond (above) at [325]. There is no question that Mr Jones is a credible witness and that his evidence would provide a trustworthy basis for fact-finding.
531 The criterion of substantiality requires that the evidence is of real significance or importance to the matter it is tendered to prove. According to the court in Keogh (No 2) at [106], evidence will be substantial "if it merits being accorded weight as part of the consideration of the issue to which it relates." In this case, whether the evidence is substantial is closely related to the question of whether the evidence is, in the context of issues in dispute at the trial, highly probative of the case for the appellant. If it is, then it will also be substantial.
532 Broadly stated, the issue in dispute at trial was whether the prosecution had proved beyond reasonable doubt that the appellant, and not another person, killed Mr Chappell. The case for the appellant was that the evidence did not exclude, as a reasonable and rational hypothesis consistent with innocence, the possibility that Mr Chappell was killed by someone other than the accused. Considered more narrowly, the appellant's contention is that Mr Jones's evidence is probative of the appellant's contention at trial that Meaghan Vass could have been on the yacht at or around the time of Mr Chappell's death, which raised as a reasonable possibility that she or someone associated with her, could have killed him.
533 The evidence of Mr Jones did not falsify the basis of Mr Grosser's opinion. It did not demonstrate it to be wrong or misleading. Mr Jones did not discount the possibility that the presence of Ms Vass's DNA on the yacht may have been explained by reasons other than her presence. The appellant's written submission that Mr Jones's evidence is that the presence of DNA matching that of Ms Vass was "more likely to have resulted from primary rather than secondary transfer", and that "expert evidence that the DNA was most likely deposited directly and not by way of secondary transfer" is not an accurate representation of Mr Jones's evidence. I would accept that his opinion that the sample derived from bodily fluid, his elaboration of the kind of circumstances which would be required for secondary transfer to have occurred, and his expectation of, if secondary transfer were to have been the source, the presence of other matching DNA on the deck distinguished his evidence from that of Mr Grosser. As expressed by the appellant's counsel to this Court, Mr Jones stated the likely need for the "concatenation of quite specific circumstances with a very close connection between the picking up of the DNA and its deposit on the deck of the Four Winds." The proper characterisation of Mr Jones's evidence is that his opinion about those factors was relevant to the assessment of the possible reasons for the presence of the DNA. The inference which might be drawn from his evidence is that the particular circumstances necessary before DNA, sufficient to result in a profile such as was obtained in this case, might have been transferred onto the boat by some other unknown medium, made that scenario less likely. However I agree with the observations of Brett J in his reasons for granting leave that "[Mr Jones] and Mr Grosser are unified in the position that the surrounding circumstances are essential to determining the relative probability between primary and secondary transfer. Each correctly and appropriately conceded that those are areas outside his area of expertise. They are, in fact, a factual question for the jury."
534 I accept the submission of the respondent that acceptance of Mr Jones's evidence that the biological source of the DNA was most likely bodily fluid, for example blood or saliva, made transfer a more likely explanation for the presence of the DNA as it virtually ruled out the possibility that Ms Vass left the DNA simply by touching the yacht.
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535 I do not think that Mr Jones's contention that, had the sample been produced from a significant quantity of bodily fluid then other examples would have been expected to be found, carries much significance. Mr Jones and Mr Grosser agreed that the evidence did not establish that the source of the DNA was the same substance that produced the luminol reaction. What caused the luminol reaction reported as item 20 from area 11 was not established by the evidence. In argument during this appeal counsel for the appellant emphasised the size of the luminol positive area, stating the area swabbed was 210mm x 260mm. The dimension was demonstrated with cardboard cut to size. Ms McHoul's evidence was that the luminous area within the swabbed area was somewhat smaller because she allowed a margin. Be that as it may, in the absence of evidence that the substance which caused the positive reaction was the source of the DNA, and the obvious inference that because the whole area was swabbed with a single swab, the DNA could have come from any part of the area, the contention carries little weight. There were many luminol positive areas on the deck. Mr Jones agreed that luminol can give a false positive for blood. Most areas on the deck which reacted to luminol were negative to the HS screening test for blood. Others were weakly positive. In no case was a confirmatory test for the presence of blood performed. According to Mr Jones, although the positive luminol reaction suggested the presence of blood, other factors in this case suggested that it may not be blood, and the possibility that the DNA was from vomit or saliva could not be ruled out. In my assessment, had the source of the DNA which was bodily fluid been directly deposited by Ms Vass when present on the boat, the likelihood of the fluid being present elsewhere on the deck would have been no different. The proposition just stated was acknowledged by Mr Jones when, in cross- examination before Brett J, the following exchange occurred:
"Q … if this is a walkway and all this DNA is being deposited there, however it got there, say if it was put there by direct transfer, however it go there, you'd expect some – it be found elsewhere, with people walking there on and off with – is that the case?
A I believe it's a reasonable possibility to propose, yes, particularly if there's liquid involved, if there's moisture and foot traffic and foot traffic transferring some of that moist material to another area that would be quite likely in my opinion."
536 Mr Jones also agreed with the proposition that, were the source of the DNA not blood, there would have been no means to identify the location of it for sampling.
537 The appellant places considerable weight on the contention that the effect of Mr Jones's evidence would have been to preclude the prosecution, in counsel's closing address to the jury, from advancing the scenario that the DNA on the yacht "could have been put there at any time before the DNA swab was taken by anyone who had acquired some trace on their footwear at any place and then maybe got in the car, driven down and got out and onto the boat and transferred it." This submission, it is contended, coming from the Director of Public Prosecutions and "with all the authority that that office carries", enabled the prosecution to dismiss aspects of the defence case as "red herrings" and to "deconstruct" one of the "two pillars of the defence case."
538 A distinction is to be drawn between the evidence itself and the submissions of counsel at trial. Strong contrary submissions were made by counsel for the appellant. The trial judge made clear to the jury that matters of fact and evidence were for them to determine, that it was their duty to form an independent view of the evidence and reminded the jury of the defence contention that the possibility of secondary transfer was not plausible.
539 Whether the evidence of Mr Jones is highly probative of the appellant's case is also to be considered in light of the other evidence relevant to the likelihood of Meaghan Vass's presence on the yacht at the time of Mr Chappell's murder. The evidence is reviewed in detail in the reasons of Wood J and I need not repeat all of it. There was no other evidence probative of her presence, or the presence of anyone associated with her, on the yacht at that time. The defence does not rely on any evidence to contradict her denial at trial that she was not on the yacht, although it was open to the jury to reject it. The jury was entitled to conclude that, even if the presence of her DNA on the yacht was
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not satisfactorily explained, it was implausible that a 15 year old homeless girl, with no connection to the deceased or the yacht, and no connection to the area where the yacht was moored, would be present on the vessel, either alone or with others. The defence scenario that another dinghy may have been used to travel to the Four Winds is discussed by Wood J in her reasons. I agree with her Honour's comments. Moreover, the suggested use of a different dinghy does not account for the appearance of the Four Winds tender, when it was found with the painter inside. A finder of fact is also entitled to regard as implausible a scenario whereby Ms Vass, in her circumstances, either alone or with others, stole the tender from where the appellant claimed she left it, the tender happening to be the one from the Four Winds, had the means to operate it, and then use it to travel to the yacht from which it had come, rather than one of the other perhaps closer yachts moored in the same area. The implausibility of the scenario that Ms Vass, or persons with her, was or were responsible for the murder was compounded by the evidence which suggested that that removal of the body, if by means of the winch, required a working knowledge of the winches on the yacht, and the compelling evidence that the method of sabotage required an intimate knowledge of the yacht.
540 I agree with the observations of Wood J that the evidence did not preclude the possibility of either secondary or direct deposit of the DNA when the yacht was moored at CleanLift in Goodwood from 28 January 2010 until the sample was taken on 30 January 2010. The evidence did not preclude the possibility of direct deposit during that time. It was open to the jury to disbelieve Ms Vass's evidence that she had not been on the yacht at Goodwood. The appellant gave evidence that the Four Winds was broken into whilst at Goodwood and items were stolen. The manager of CleanLift Marine gave evidence on the leave application that the yacht, while it was moored there, was left in the open, that the premises were not secure and that previous break-ins to other yachts had occurred. In this respect, as Wood J points out, there were aspects of Mr Jones's evidence which were arguably unfavourable to the defence case. When cross-examined before Brett J on the leave application, Mr Jones was asked about his conclusion that the electropherogram reported that the DNA sample displayed very little sign of degradation. He had earlier reported that there was no indication that "any component (allele) within the DNA profile had dropped out nor was there any indication of stochastic variation." Mr Jones explained that DNA may be degraded by exposure to sunlight and environmental factors, including bacteria. The evidence at trial established that the deck of the boat was exposed to the elements, as of course it usually was, from the time it was seized until the sample was taken. The evidence suggested that the area from which the swab was taken was exposed to a considerable amount of foot traffic during the same period. Mr Jones explained that sunlight degrades biological material "quite rapidly". He indicated that he was not in a position to give a definitive opinion about how long, in those environmental conditions, the biological material would survive so as to show the DNA profile which was subsequently produced from it. However he indicated that three or four days was a "grey area" and that his first response would be "one or two days … Potentially a little longer, but it depends on how much starting material you have." Although not definitive, that evidence was in favour of a scenario in which the DNA was deposited closer to 30 January 2010 than overnight between 26 and 27 January 2010.
541 When considering the context of the issues in dispute at trial, it is important to recall the basic but fundamentally important proposition that the prosecution carried the onus to prove the appellant's guilt beyond reasonable doubt. What is to be considered is whether Mr Jones's evidence is highly probative of whether the prosecution excluded, beyond reasonable doubt, the scenario consistent with innocence: the possibility that Ms Vass was on the yacht and could, either alone or with others, have killed Mr Chappell. For the foregoing reasons, when all things are considered, I am not persuaded that the evidence relied upon by the appellant adds anything which is correctly described as of real significance or importance to the case that murder by Ms Vass, or someone associated with her, was a reasonable hypothesis. I am not persuaded that the evidence of Mr Jones is highly probative of the appellant's case. The appellant has not established to my satisfaction that the evidence is compelling.
A substantial miscarriage of justice?
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542 It is accepted by the appellant that, when considering whether, after taking into account evidence which is fresh and compelling, there has been a "substantial miscarriage of justice" that the test in Mickelberg v The Queen (above) is to be applied. It is the test endorsed by the High Court in Van Beelen at [22]-[23] and [75]. It requires the appellant to demonstrate that there is a "significant possibility" that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before the jury at the trial.
543 To my mind, in the scheme of the Tasmanian legislation, and in the circumstances of this case, there is overlap between the question of a substantial miscarriage of justice and the second and third criterion of whether the evidence is compelling, that is, whether it is substantial and highly probative. In other words, whether evidence is substantial and highly probative may be judged against the combined force of all of the other evidence at trial which was probative of guilt. Regardless of the correctness of that proposition, Wood J has detailed the evidence probative of the appellant's guilt, and I respectfully agree with her Honour, for the reasons she gives, that there is not a significant possibility that the jury, acting reasonably would have acquitted the appellant had the evidence of Mr Jones been before the jury at trial.
544 I would dismiss the appeal.
above her evidence was disclosed during the trial during a Basha inquiry.
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