[2012] TASCCA 2
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Neill-Fraser v Tasmania [2012] TASCCA 2
PARTIES: NEILL-FRASER, Susan Blyth
v
STATE OF TASMANIA
FILE NO/S: 929/2010
DELIVERED ON: 6 March 2012
DELIVERED AT: Hobart
HEARING DATE: 11 August 2011
JUDGMENT OF: Crawford CJ, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Motive – Whether facts establishing a motive are indispensable to the drawing of an inference of guilt – Whether those facts must be proved beyond reasonable doubt – Direction to jury.
Shepherd v R (1990) 170 CLR 573, applied.
Penney v R (1998) 72 ALJR 1316, not followed.
R v Pantoja [1998] NSWSC 565, R v Plevac [1999] NSWCCA 351, R v Fowler (2003) 151 A Crim R 166, R v Kotzmann [1999] 2 VR 123, R v Koeleman [2000] 2 VR 20, R v Nguyen (2001) 118 A Crim R 479, R v Cummins (2004) 10 VR 15, approved.
Aust Dig Criminal Law [2709]
Criminal Law – Evidence – Matters relating to proof – Standard of proof – Circumstantial evidence – Reasonable hypothesis consistent with innocence – Directions to jury - Adequacy – Whether a need for a direction that intermediate facts must be proved beyond reasonable doubt.
Shepherd v R (1990) 170 CLR 573, followed.
Re Belhaven and Stenton Peerage (1875) 1 App Cas 278, Liberato v R (1985) 159 CLR 507, referred to.
Chamberlain v R (No 2) (1984) 153 CLR 521, HML v R (2008) 245 ALR 204, distinguished.
Aust Dig Criminal Law [2711]
Criminal Law – Evidence – Corroboration – What constitutes corroboration – Admissions and conduct of accused – Lies, denials etc – Post-offence conduct – Allegations of laying of a false trial – Whether relied on by Crown as probative of guilt or going to credit – Direction to jury.
Edwards v R (1993) 178 CLR 193, Zoneffv R (2000) 299 CLR 234, Nguyen (2001) 118 A Crim R 479, R v Chang (2003) 7 VR 236, R v Cook [2004] NSWCCA 52, R v SBB (2007) 175 A Crim R 573, R v MC [2009] VSCA 122, approved.
Aust Dig Criminal Law [2910]
Criminal Law – Sentence – Relevant factors – Response to charges – Co-operation with police or assistance to authorities – Generally – Post-offence conduct – Inconvenience and expense of investigation caused by accused’s actions – Whether an aggravating factor.
R v Cavkic (No 2) [2009] VSCA 43, R v Wilkinson (No 5) [2009] NSWSC 432, applied.
Fox v Fletcher unreported 17/1970, referred to.
Aust Dig Criminal Law [3274]
REPRESENTATION:
Counsel:
Appellant: M J Croucher, K Cuthbertson
Respondent: T J Ellis SC, J Shapiro
Solicitors:
Appellant: Mackie Crompton
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASCCA 2
Number of paragraphs: 253
Serial No 2/2012
File No CCA 929/2010
SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
TENNENT J
PORTER J
6 March 2012
Orders of the Court
Insofar as leave to appeal against conviction is required, leave is granted.
Appeal against conviction dismissed.
Appeal against sentence allowed.
Sentence quashed and in lieu the appellant is sentenced to imprisonment for 23 years from 20 August 2009 and it is ordered that she is not to be eligible for parole until she has served 13 years of the imprisonment.
Serial No 2/2012
File No CCA 929/2010
SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
6 March 2012
At a trial before Blow J, the appellant was found guilty of murder. She was sentenced to imprisonment for 26 years with effect from 20 August 2009, and it was ordered that she was not to be eligible for parole until she had served 18 years of the imprisonment. She appealed against both the conviction and sentence.
The appeal against conviction
Insofar as she sought to appeal against the conviction, leave of the Court to appeal is required for a ground of appeal other than one which involves a question of law alone. Criminal Code, s401(1). Some of the grounds of appeal raise questions of fact. However, nothing of significance should arise out of deficiencies in the notice of appeal. Because of the importance of some of the issues raised, it is appropriate to give leave to appeal.
There are a number of grounds of appeal. For reasons I will give, none of them should succeed. They require individual attention, but before dealing with them it is worthwhile relating some of the aspects of the case.
The appellant was charged with the murder of Robert Adrian Chappell on or about 26 January 2009. At the time of the events she was aged 55 and he was 65. He was employed as a physicist at the Royal Hobart Hospital. From about 1992 they lived together at a house in Allison Street, West Hobart. He had three adult children from a marriage, and she had two adult children from a marriage. On 26 January 2009, the day upon which it was alleged the murder was committed, the appellant and the deceased were the only ones living at the house.
In September 2008, they purchased a 53 foot ketch called Four Winds in Queensland. It was brought to Hobart in December 2008.
From about 9am on 26 January 2009, the deceased was on the yacht where it was moored off Marieville Esplanade, Sandy Bay, for the purpose of doing work on it. The appellant was with him on the yacht for a short time in the morning and returned to it at about 2pm, using the yacht's tender, an inflatable dinghy. Later in the afternoon she returned to the shore in the tender. The deceased remained on the yacht.
At about 5.40am on 27 January, a witness found the dinghy bobbing against rocks. The witness secured it. With another man he headed out in a boat. As they passed the Four Winds they noticed that it was very low in the water on its mooring. They boarded it. Shortly after, the police arrived as a result of a call.
The deceased was not on board and he has not been seen since. The boat had been sabotaged and was sinking. A pipe had been cut and a seacock opened allowing seawater to flow in. An automatic bilge pump and alarm had been deactivated. Blood was found on the yacht, including on steps leading down to the cabin.
It was the Crown case that through violence the appellant killed the deceased, winched his body onto the dinghy and, having weighed it down, disposed of it somewhere in the water. The Crown case depended entirely on circumstantial evidence.
The circumstantial evidence and some of the Crown's case based on it
I will relate some of the circumstantial evidence and the Crown's case. As the appeal does not attack the correctness of the jury's verdict, it is unnecessary to relate the appellant's arguments concerning much of it, nor her evidence in which she denied responsibility for Mr Chappell's death.
The appellant and the deceased purchased and took possession of the Four Winds at Scarborough Marina in Queensland. The purchase price was $203,000. Work was required to be done on it. They organised for work on the engine prior to sailing from Queensland for Hobart. They expected it would cost $6,000 to $7,000, but there was evidence that it in fact cost close to $20,000. Once it was in Hobart it was discovered that the engine was damaged and in need of major work. In her evidence, the appellant accepted that by 28 December 2008 they had spent $243,422 on expenses connected with the boat, which included the purchase price. There was evidence suggesting that they had spent more than they had originally planned.
They hired two crew members for the journey from Queensland to Hobart. They were Peter Stevenson and David Casson. They commenced sailing on 7 December 2008. During the first part of the trip the deceased suffered a nose bleed. When approaching Southport on the second day the engine failed and the coastguard was called to tow them in. The deceased suffered another nose bleed which persisted. While at Southport he worked on the engine but continued to suffer nose bleeds and was admitted to hospital for treatment. It was arranged that the appellant and the two crew members would set sail and he would rejoin the yacht in Sydney. However, the crew members were concerned that he might have further nose bleeds and he did not rejoin them. Instead, he flew home to Hobart while the others brought the yacht there, arriving late on the evening of 23 December. A number of mechanical and equipment problems had marred the trip.
Evidence was given by Mr Stevenson that during the journey the appellant said that her relationship with the deceased was strained, it was over and it had been for some time. She also said that she would like to borrow $100,000 from her mother to buy out the deceased's interest in the yacht.
The deceased went to Marieville Esplanade early in the morning of 24 December to meet with the appellant and the crew following their arrival. Mr Stevenson's evidence was that the deceased "went to approach Sue and she really just stood back from him and ignored him, didn't sort of respond to his – to, you know, acknowledging that – how he was". He said that he had noticed no sign of affection between them when they were together on the boat.
Evidence was given by the deceased's son, Timothy Chappell, that on 26 December 2008, and again two or three weeks later, he was on the Four Winds when the appellant and deceased were both present. He thought that "there was quite a lot of tension between them", and said that he "felt a bit uncomfortable on the boat because of the tension between them". He referred to sniping words and obvious friction between them. The source of it appeared to him to be that they had different expectations for what they would do with the yacht.
Evidence was given by Jeffrey Rowe, a Queensland yacht broker who negotiated the sale of the Four Winds to the appellant and the deceased. He said that in the course of a telephone conversation he had with the appellant on 8 January 2009, she told him that she and the deceased had separated and she commented "that she was just tired of having to do everything".
On 25 January 2009, the appellant, the deceased and his sister, Caroline Sanchez, spent a day cruising to Bruny Island and return on the yacht. Ms Sanchez was staying with them on a visit from Sydney. They used the motor there and back. There was no evidence that they tried to sail.[1] When they were at Bruny Island the anchor winch failed and they were unable to lower the anchor. Ms Sanchez said that the appellant and the deceased wrestled with it but decided they would have to get a spare part later on. The appellant's evidence was that the deceased was grumpy about having to get into the chain locker when attempting to free the chain and that he was cross about the failure. They both worked on it, she said. In a police interview she said that the deceased was "very, very upset" and he said, "look I'm beginning to wonder about this boat, what else is going to go wrong with it?"
[1] Evidence was given by Mr Stevenson that neither the appellant nor the deceased were strong enough to carry out the physical work required on the yacht and, in particular, to operate winches that raised and lowered the sails.
The appellant's evidence was that on 26 January at about 8.30am or 9.00am, she and the deceased went to the Four Winds on its mooring. They used its dinghy to do so. She said that the deceased was in and out of the engine room as he worked on it. He had an electrical switchboard open. Later in the morning, she left the Four Winds in the dinghy to keep a pre-arranged luncheon appointment with Ms Sanchez. She said that she tied the tender up to poles at the Marieville Esplanade beach. The deceased remained on the yacht.
Evidence was given by Barbara Zochling that early that morning she saw the deceased walking along a path from the direction of the Royal Yacht Club on Marieville Esplanade towards Short Beach (off which the Four Winds was moored). She was not precise about the time of day, but, in the light of her evidence, it could have been between 8.30am and 9.30am. She said that a woman was walking behind the deceased and talking in a raised voice. It was the Crown case that a strong inference could be drawn that the woman was the appellant. However, there was also evidence that Ms Zochling had recently seen a photograph of the appellant on news media and did not believe that she was the woman she had seen on 26 January 2009.
The appellant drove home to Allison Street, changed and returned to the Royal Yacht Club with Ms Sanchez for lunch. At the club, Ms Sanchez took some photographs of the appellant. They showed that she had no injuries or strapping on her wrist. After lunch they returned to Allison Street. Ms Sanchez said that the appellant changed again and left the house at about 1.30pm. Ms Sanchez left the house that afternoon to spend two days on Bruny Island.
At about 2pm, Christopher Liaubon assisted the appellant at Short Beach to free the outboard motor of the dinghy that was stuck in the sand above the waterline, the tide being about three-quarters of the way out. The dinghy was tied to a pole. At about 2.30pm he saw the appellant in the dinghy making her way out from the beach. She was on her way to the Four Winds. Jane Powell also gave evidence of seeing a woman in an inflatable dinghy making her way out to a yacht on a mooring at about that time.
Evidence was given by Paul Conde that he saw a rubber dinghy tied to the portside of the Four Winds at about 3.55pm. Evidence was also given by Peter Lorraine that at about 5pm he watched from a nearby jetty a moored two-masted yacht with an elderly man pottering about on it. A dinghy was tied to it.
The appellant's evidence was that during the afternoon the deceased worked in the engine room and on the anchor winch motor. She said that he had isolated an engine oil leak and wanted to spend the night on the yacht to keep going. He wanted to trace wiring and to have a look at things, she said. She left her mobile telephone with him and departed in the dinghy, she thought after she had been on the yacht for an hour at the most.
In her statutory declaration made two days later, she said that the deceased was a bit snappy. On 5 February 2009, she told police officers that they had a row because she was working at a washing machine and was in the accused's way when he wanted tools, which she said were "my tools as well". When interviewed on 4 March 2009, she described the deceased as "getting very snippity with me". In an interview on 5 May 2009, she said she was irritating him.
The appellant said to police that it was safer for her to leave the deceased on the yacht without the dinghy because he was not adept at getting in and out of it on his own. However, his son, Timothy Chappell, gave evidence that the deceased was quite capable in the dinghy. Ms Sanchez's evidence was that on 25 January 2009, the deceased showed the appellant how to use a new outboard motor on the dinghy. The deceased's daughter, Katherine Chappell, gave evidence that when she went out to the Four Winds on 26 December 2008, the deceased operated the dinghy and the appellant criticised him concerning the way he was driving it into the waves. There was also evidence that the deceased controlled the dinghy containing him, the appellant and two men who were going out to work on the Four Winds in early January 2009.
The appellant said that when she returned from the Four Winds, she tied the dinghy to a ladder at the Royal Yacht Club in her usual way with three knots. She believed she had tied it up adequately and said that it had never come undone before.
At 9.17pm on 26 January 2009, the appellant made a 14 minute telephone call to her daughter, Emma Mills, on the landline at Allison Street. At 9.31pm she telephoned her mother for about five minutes. At 10.05pm she received a telephone call on the landline from Mr Richard King. The call lasted approximately 29 minutes.
The next telephone call to or from the Allison Street landline was at 3.08am on 27 January, when a *10# call was made from it. The function of such a call is to retrieve the number of the last unanswered telephone call to a landline service.
John Hughes gave evidence that between 11.30pm and midnight on 26 January, he was parked at the end of rowing sheds at Marieville Esplanade when he saw and heard an inflatable dinghy with an outboard on the back coming from the direction of the Royal Yacht Club, heading northeast towards the Eastern Shore of the Derwent. It was open to infer from that evidence that it was travelling roughly from where the appellant had said she left it at the Royal Yacht Club and roughly towards the Four Winds. Mr Hughes said that there was only one person in it who had the outline of a female, but he could not be definite. He was "almost 100 per cent definite" that there were no other persons in the area of the sheds.
As I mentioned, at about 5.40am on the morning of 27 January the dinghy was found floating, nudging up into rocks. It was some hundreds of metres and several small coves away from where the appellant said she left it the previous day. Its painter was inside the dinghy, which suggests that it had been put there by someone and that it had not simply come undone from the ladder where she said she had tied it. If it had become undone with the result that the dinghy drifted away, it is likely that the painter would have been trailing in the water.
At 7.04am, on 27 January 2009, an unanswered telephone call was made from the landline at Allison Street to the appellant's mobile telephone which was later found on the Four Winds. No further call was made by the appellant to that telephone and she raised no alarm. Having received reports of the Four Winds sinking, police telephoned her on the landline at Allison Street at 7.11am. She headed directly to Marieville Esplanade in the car. Her evidence was that she had parked it overnight outside the house.
On the shore at Marieville Esplanade, before it was known that the deceased was missing, she spoke with Constable Shane Etherington. She told him that the deceased had been on the yacht making some repairs in relation to some panels that had apparently been loosened by unknown persons. She said that she believed the boat may have been boarded in the two or three days prior to the deceased being on it. She explained that a similar yacht had been used to smuggle drugs into Australia from other countries and the drugs were stashed in similar panels and she believed that was what may have happened to the Four Winds. She asked if the police had sniffer dogs which could go onto the yacht.
That morning, a red jacket was found on a brick wall outside 2 Margaret Street by the occupant. It was about 120 metres from where the appellant said she had left the dinghy tied up on 26 January. The occupant had not seen it there when he arrived home the previous evening at about 6pm. A police officer took possession of it and it was placed in the boot of a police car at Marieville Esplanade. It was shown to the appellant who said that it did not belong to her and she had never seen it before. However, a swab taken from the inner surfaces of the collar and cuffs of the jacket was found to contain a DNA profile that matched her DNA profile and the chances of some other unrelated person matching it was less than one in 100 million.
When the appellant was at Marieville Esplanade that morning, police officers observed that she had some strapping round her wrist and a Band-Aid on her left thumb. She said she had cut her thumb. At the request of Constable Stockdale she removed the Band-Aid and revealed a one to two centimetre cut. In the course of the conversation she said that her fingerprints might be on a torch on the Four Winds. A torch was indeed found on the Four Winds. It had human blood splattered on it and a DNA analysis of the blood matched the DNA profile of the deceased.
When police boarded the Four Winds that morning they noticed blood on steps, a knife on the floor of the wheelhouse and the torch with blood on it and no trace of the deceased. The yacht was low in the water and sinking. The causes were located. A pipe to the for'ard toilet had been cut allowing seawater to flow in. It was also discovered that a seacock under the flooring in the for'ard part of the yacht had been opened, allowing seawater to flow in.
Evidence was given by Constable Lawler, who had experience in marine and rescue services and with water craft, that in his opinion the person responsible for cutting the pipe and opening the seacock had an intimate knowledge of the Four Winds. That was particularly the case with the seacock, which was under a carpet and panel, and which served no apparent purpose.
The operation of the plumbing aboard the Four Winds, including the location of the cut pipe and the seacock, had been explained to the appellant by a plumber, Mr Klaas Ruiter, when working on the yacht in Queensland. The yacht had a book that explained its electrical and general engineering. The book contained a diagram "of the plumbing and sullage tanks, black and grey water from the toilet and various other parts of the boat". Mr Casson gave evidence that on the way down from Queensland, he and Mr Stevenson explained to the appellant and the deceased how the systems worked and the appellant "seemed to be reasonably familiar with the plumbing side of things". A photograph in evidence showed her with the book open at the plumbing diagram. Evidence from Mr Nathan Krokowiak, a mechanical fitter who worked on the yacht on or about 15 January 2009, was that he explained to her about "gate valves, seacocks and things like that which are open to the outside of the vessel" whilst working on the area containing the seacock which was found on 27 January to have been opened.
Divers searched an area around the Four Winds and to the south of it. Because of poor visibility, it was impossible for the divers to find objects on the bottom. As a consequence, sonar equipment was used in April 2009 to search roughly the same area. Ninety items of interest were located with the sonar. Only 25 of them were dived on. They were not the body of the deceased.
The inflatable dinghy had many areas that were positive to luminol, a screening test for blood but not a conclusive one.
The Crown case was that it was open to conclude that the body of the deceased was dumped into the Derwent River but not found because either it was outside the area searched or it was missed by the divers.
After water had been pumped from it, the Four Winds was towed to Constitution Dock on 27 January. At about 4.30pm, the appellant, her daughters and Timothy Chappell went on board. The appellant pointed out a number of anomalies on the yacht. She said that a green rope on the starboard side was in disarray and out of place. She pointed out that a winch handle was in the winch on the mizzen mast and said that it should not have been there. She said that a rope around the winch had been cut and also another rope in a pile on the deck. In the main saloon area she pointed out that a fire extinguisher was missing from a bracket. She also pointed out that an EPIRB was missing from a bracket mounted on the back of the wheelhouse.
Sergeant Conroy also gave evidence that the appellant drew attention to some rub marks on the wooden surrounds of the main hatch for entry into the yacht, which she said had not been there before. The Crown maintained that the marks were small and inconspicuous. There were fibres in the marks that appeared consistent with those from a rope.
The appellant pointed out to police in the main saloon that floorboards had been unscrewed and lifted up and said that the deceased would not have unscrewed them. However, there was evidence from Mr Stevenson and Mr Casson that during the yacht's journey from Queensland they had unscrewed and lifted the floorboards to access pipes and wiring, and although they replaced the boards they did not screw them down again.
It was also Sergeant Conroy's evidence that when speaking to the appellant on 28 January, at which time he obtained a statutory declaration from her, she referred to the deceased throughout in the past tense, although at one time she apologised, saying that she and the family had come to the realisation that he was dead.
Next, I relate some of the evidence that the appellant said she visited Bunnings Warehouse on the Brooker Highway on the afternoon of 26 January, after she last left the deceased on the yacht.
In the days following 27 January she told Timothy Chappell that she had been to Bunnings the afternoon before.
On 28 January 2009 she made a statutory declaration in which she said that after tying up the dinghy at the Royal Yacht Club she went to Bunnings for a long time, although she did not buy anything, just browsed. It was starting to get dark when she arrived home. She mentioned the telephone calls she made and received and said she got off the telephone at 10.30pm. That accorded with records. She said that she stayed alone at home that night and that the following morning she was notified the yacht was sinking. She made no mention of travelling to Marieville Esplanade after 10.30pm.
On 5 February 2009, she told Constable Marissa Milazzo and Detective Senior Constable Shane Sinnitt that after she left the Four Winds on 26 January she went straight out to Bunnings. She said she drove in, turned left and parked facing the building, arriving at roughly 4.40pm at the main entrance near the checkouts. She said there was always someone at the door and that she was wearing a cream brimmed hat, beige shorts, joggers and sunglasses. She said she looked at timber and slip mats, turned right and looked at the paint section. She went up just about every aisle and left by the same entrance.
When interviewed by police on 4 March 2009, she continued to maintain that she drove to Bunnings from the Yacht Club. She said she remembered feeling guilty when doing so because she thought that if the deceased telephoned her, he had her mobile and she was not at home. However, she was aware that police had examined CCTV footage at Bunnings and could not find her on it and retreated to claiming that she was "pretty sure" she had gone there. She was told that Bunnings shut that day at 6pm, which made it unlikely that she could have been there for "hours" as she had previously claimed.
Later in that interview she maintained that she did not leave her home on the night of 26 January after receiving the telephone call from Mr King.
On 5 March 2009, Detective Sergeant Conroy spoke to the appellant's two daughters about the investigation and showed them a photograph taken by a camera at the corner of Sandy Bay Road and King Street, Sandy Bay, at 12.15am on 27 January 2009, which showed a grey station wagon similar to the appellant's vehicle travelling on Sandy Bay Road. The appellant's daughters were in constant contact with her.
Ms Sanchez gave evidence that on either 8 or 10 March 2009, she had a telephone conversation with the appellant, in the course of which the appellant told her that on the night of 26 January she was disturbed or anxious about the content of the telephone call from Richard King and had driven down to Sandy Bay, looked across at the yacht, but it was in darkness, and then drove back. That was the first occasion upon which the appellant had admitted to returning to Marieville Esplanade that night.
On 13 March 2009, she was interviewed by an ABC journalist, Ms Felicity Ogilvie. She told Ms Ogilvie that after the telephone call from Mr King she drove down to the boat to check that everything was okay, did not see anything going on at the yacht and drove home. She added that she saw homeless people with fires while down there. Ms Ogilvie later provided that information to police. It was the first time they were aware that the appellant had returned to Marieville Esplanade on the night in question.
On 23 March 2009, Ms Sanchez had another telephone conversation with the appellant in which the appellant said that although she had driven down to Marieville Esplanade that night, she left the car there and walked back home to West Hobart for the exercise. It was the first time she said she had left the car at Marieville Esplanade.
Police interviewed her again on 5 May 2009. Asked about what she had done on the afternoon of 26 January after going out to the Four Winds, she said that she had been mistaken about going to Bunnings, claiming that she had mixed up the day with another day a few days earlier when she had left the deceased on board the yacht and gone to the store.
During the same interview, she said she had been on the yacht on the afternoon of 26 January until later than she had previously indicated, and after tying the dinghy at the Royal Yacht Club, she walked back to Allison Street, West Hobart, leaving the car on Marieville Esplanade or around the corner in Margaret Street, she could not remember which. She said she did not remember whether it was daylight or dark. After the telephone call from Mr King, the content of which had unnerved her, she decided to collect the car and drive it home so that it would be available to her to drive to the yacht if the deceased called her. She decided not to telephone him because having regard to the lateness of the hour, he might be asleep. So she walked to the car at or near Marieville Esplanade. However, on arriving there she found she had farm keys and not the car keys and had to walk back to Allison Street to collect them and return once again to the car. She then drove along to the rowing sheds, which was the only place from which the boat could be seen properly. She got out, walked down to the beach and saw a fire going and homeless people there. She could not see the boat because it was pitch black. She felt a lot better for having gone there. She then drove home.
It was the Crown case that her version in that interview conflicted with the evidence of Mr Hughes who said that between 11.30pm and midnight he was parked at the end of the rowing sheds, there were no other persons in the area of the sheds, and he witnessed an inflatable dinghy with an outboard running, and with a woman on board, heading from the direction of the Royal Yacht Club roughly in the direction where the Four Winds happened to be.
In that interview, the appellant was told that the red jacket police had shown her on the morning of 27 January was in fact hers because it contained her DNA. She conceded it was hers and said she had no idea how it came to be on the fence in Margaret Street.
She agreed in the interview that when on 27 January she gave an account to police of her movements the night before, she had not told them about returning to Marieville Esplanade. She gave as her reason that she was worried Timothy Chappell would be upset at mention of her concern about the subject of the telephone conversation from Mr King[2].
[2] The Crown does not dispute the appellant's claim concerning the content of the conversation with Mr King and that it might have been unnerving in normal circumstances. I have found it unnecessary to relate what the content was.
She also told the police that when the yacht was being repaired at Scarborough Marina in Queensland, the mechanic, Mr McKinnon, advised her that it had been illegally entered and panels had been opened and things moved about.
It was Timothy Chappell's evidence that on 27 January the appellant told him that the yacht had been broken into twice in Hobart on its mooring, which surprised him because he had not heard about it before. The appellant told Constable Etherington on 27 January that the Four Winds may have been boarded two or three times before, that some panels had been removed by unknown persons, and that the yacht may have been used to smuggle drugs. On the same day, she made a statement in which she said that approximately 13 days before she and the deceased discovered that someone had been on the yacht unlawfully. She noticed that the chart table had been accessed and the freshwater pump cover and the electrical switchboard had been opened. She said exactly the same thing happened in Queensland in October when someone had been on the boat.
A marine mechanic, Mr James McKinnon, gave evidence that the appellant and the deceased commissioned him to inspect the Four Winds in Queensland and to work on it at Scarborough Marina. During the course of the work he reported to the appellant that he believed someone had been entering the yacht after he finished work some days, and he also told her that on one occasion he noticed an electrical panel had been removed. However, he subsequently discovered that an electrician, Chris Geddes, had done that and he told the appellant that was the case. Evidence was also given by Mr Rowe that he had also discussed with the appellant about the electrical panel having been opened and about the situation that people thought the boat was being broken into. He said it was discovered that an electrician had been working on the switchboard of the yacht and he informed the appellant of that.
That evidence of Mr McKinnon and Mr Rowe was not challenged by the appellant's counsel in cross-examination. However, the appellant gave evidence that it was she who told them that it was Mr Geddes who had entered the yacht.
On 27 January 2009 the appellant told Sergeant Conroy that Four Winds had been entered on two occasions, that it appeared to her that something heavy may have been lifted out, and she believed it was drug smugglers and that the deceased may have been on the yacht when they came back to it.
On 13 February 2009, in a telephone conversation, the appellant told Sergeant Conroy again about break-ins on the vessel. On 19 February she mentioned her belief that the prefix PV in the registration number of the yacht stood for Port Vila, and that drugs smugglers from Europe went to Port Vila and that was a line of inquiry she thought he should follow.
In the course of being interviewed on 5 May 2009, the appellant denied that there had been any break-ins on the yacht in Queensland or Tasmania and she denied saying that it had been searched.
When giving evidence, the appellant said that she and the deceased went aboard the Four Winds on 10 January 2009 and found it had been entered and searched, with floor hatches pulled up, cupboard doors open, some of the cushions unzipped and mattresses flicked up, but there was no damage and nothing was missing. They decided between them not to report the matter to police. Later in evidence she denied ever saying that the yacht had been broken into in Queensland.
Other circumstantial evidence relied on by the Crown included the evidence of Mr Phillip Triffett. He gave evidence that he and his partner had been friends with the appellant and the deceased some years before, and that the appellant owned a yacht at that time which she kept at a marina down Electrona or Margate way. He said that when they were on the yacht in about 1996 or 1997, the appellant asked him to assist her in taking her brother Patrick out to sea and throwing him overboard, because he was in her way over their mother's property. She said they would weigh him down with a toolbox and that Mr Triffett would then take the yacht closer to shore and sink it after she had gone ashore in the dinghy. She showed him how they could sink the yacht by using the bilge pump.
Mr Triffett also gave evidence of a conversation not long after at the appellant's home when the appellant complained that the deceased was mean with his money and "dangerous around the kids" and she said he had to go. She wanted the same thing to happen as she had suggested before, except that she wanted the deceased to be wrapped in chicken wire.[3]
[3] The appellant denied having those conversations with Mr Triffett.
In his closing address to the jury, counsel for the Crown argued that it made no sense, and it was not a reasonable possibility, that a stranger or strangers to the deceased not only killed him but in addition removed his body from the scene by using the winch. It was argued that the person who cut the pipe to the for'ard toilet and opened the seacock under the floor must have had an intimate knowledge of the yacht and was not a stranger to it. The jury's attention was drawn to the evidence that the appellant had that knowledge.
It was also argued that it was too much of a coincidence for a stranger to have not only boarded the yacht and killed the deceased, but in addition to have used the yacht's tender to enable those things to be done, a tender which the appellant said she had left tied up to a ladder at the yacht club. It was argued that the use of the winch to remove the body of the 64 kilogram deceased was more consistent with one person being involved rather than several.
It was argued that the evidence showed that there was an attempt to clean up the scene of the killing and that a stranger would not have done that. Counsel for the Crown was referring to the evidence that carpet tiles in front of the electrical panel, where the appellant said the deceased was working that day, had been taken up after first unscrewing feet from stairs that were on top of the tiles.
It was suggested to the jury that they could infer that the appellant had killed the deceased and left his body on the yacht when she went home in the evening and commenced to make and receive telephone calls at 9.17pm. It was argued that the telephone call from Mr Richard King unnerved her because Mr King had wanted to speak to the deceased and instead learned that he was not available. As a result, it was argued, the appellant went to the boat to dispose of the body and clean up incriminating evidence. It was pointed out that the evidence of Mr Hughes assisted a finding that the appellant used the dinghy to return to the yacht at about 11.30pm to midnight, and that the evidence of the *10# call at 3.08am was consistent with her having just returned home and checking who might have telephoned while she was out.
The jury was urged by counsel for the Crown to conclude that in the days and months following the killing of the deceased, the appellant told a great number of lies concerning her movements that day and night, in the course of which she kept changing her position, and that the jury should conclude that they were told out of a consciousness of guilt, knowing that the truth would reveal it.
Ground 1
"Ground 1: A miscarriage of justice resulted from the prosecutor's failure to recall Meaghan Vass, and/or from the learned judge's refusal to recall Ms Vass or to direct that she be recalled, following disclosure, during the subsequent evidence of Detective Sinnitt, of matters concerning the whereabouts of Ms Vass on 26 January 2009, which matters had not been disclosed to the appellant until after Ms Vass gave evidence."
I mentioned earlier that the yacht was towed to Constitution Dock on 27 January. On the following day it was moved to the premises of Cleanlift Marine at Goodwood and was placed on a slip for inspection.
As part of the police investigation, a great number of items, samples and swabs were collected, and many were forensically examined or analysed. One was a swab taken on about 30 January 2009 9.45 metres from the bow of the yacht on the starboard walkway, while it was at Goodwood.
The swab was taken because at that point a luminol test was positive, although it proved "negative with HS screening for blood". DNA analysis of the swab revealed a full DNA profile of a female. It did not match the DNA of any individual on the State's DNA database. Statistically there was a less than one in one hundred million chance that the DNA profile of more than one person, unrelated to each other, would have matched it. There was no evidence establishing how that DNA profile came to be in a substance on the deck of the yacht on 30 January 2009.
The DNA profile was matched with the DNA profile of Meaghan Vass on 15 March 2010. A sample had been taken from her by police for reasons unconnected with this case.
On 26 January 2009, she was 15 years old. She had been homeless since she was 13. Having discovered the matching profiles, police first spoke to her with a view to interviewing her, to see if she had any connection with the death of the deceased. She declined to be interviewed. In cross-examination her explanation was that she felt intimidated and that she had "just never dealt with something this large before".
As it was not possible to provide a statement of the evidence she would give before the jury, what has come to be known as a Basha inquiry was conducted in the absence of the jury. Its purpose was to determine what she was likely to say or not say in evidence before the jury. That was determined by counsel for the Crown examining her, and defence counsel cross-examining her in the absence of the jury.
In her evidence-in-chief in the course of the Basha inquiry, she said she was living in Hobart in early 2009, that she had never been aboard the Four Winds, she did not remember if she went to the area of Constitution Dock in January and February 2009, and she did not remember going to an area of Goodwood near Negara Crescent where there was an industrial estate and some yachts in January 2009. She was briefly cross-examined. First, she was asked where she was living in January 2009. She said she was "pretty sure" she was living at a Montrose women's shelter, which she named. The appellant's counsel asked: "Pretty sure?" She answered: "Yes, I can't really remember, I'm sorry". She said she had no occupation at the time and received a special benefit. She confirmed that she had never been on board the Four Winds and she had no memory of being in the wharf area of Constitution Dock and seeing the yacht there. She agreed with defence counsel that the wharf area was not an area she would go to in late January 2009, and that it was highly unlikely she was around Constitution Dock on about 27 or 28 January 2009. She confirmed she had no memory of going to a shipyard in Negara Crescent, Goodwood called Cleanlift Marine and agreed that she had never been there in her life.
Immediately after, Ms Vass gave evidence in the presence of the jury. Her evidence-in-chief was brief once again. She said she did not remember ever being on the yacht, being in the Constitution Dock area at the end of January or the very beginning of February 2009, or being at that time in the area of Negara Crescent, Goodwood where there were some yachts on slips and an industrial estate.
She was cross-examined again. She said she did not have a twin sister. She gave her reason for not being interviewed by police. She said she was quite sure she had never been on the yacht. Then she was asked in cross-examination where she was living on 26 January 2009. She said she was "pretty sure" it was at an address she gave in Lenah Valley, which she described as a "big block of white – a white complex". Defence counsel then put to her "didn't you say a little while ago that you were living at the Montrose address". She agreed by saying, "Yes", but added "I can't really remember, I'm sorry", which was exactly what she added in the course of cross-examination during the Basha inquiry.
Defence counsel then accused her of changing her story. The line of cross-examination was unfair, for on both occasions, without the jury and with them, the witness added, "I can't really remember", and apologised. It was also unfair in its innuendo that she was telling a story. She was responding to questions concerning where she was living on 26 January 2009.
It was pointed out to her that in the absence of the jury she had said she was living at the Montrose address, and that, in the presence of the jury, she said that she was living at the Lenah Valley address, but no mention was made by counsel that on both occasions she had added that she could not really remember. She agreed with defence counsel that the Montrose and Lenah Valley addresses were not the same, which was obvious. Prefacing that he would ask her again, counsel asked where she lived on 26 January 2009. She answered by giving the Montrose address. Counsel then asked why she gave the Lenah Valley address "a minute ago". She answered: "Because I'm getting very confused and I have been homeless since I was 13, so it's very hard for me." Counsel had no sympathy for such a claim. He asked: "It's not difficult, is it, you were asked the question in this Court a few minutes ago?" She responded: "Yes, I'm sorry."
Defence counsel then asked a few questions that had some direct relevance. She was able to volunteer that Constitution Dock was "the one in town where Muirs is isn't it?" She confirmed, by saying "yes", that she did not remember going to Constitution Dock in late January 2009 around the 27th. She agreed, by saying "yes", that it would be fair to say that she would say that she did not go there "during the period". She agreed, by saying "yes", that it would be fair to say she had never been to the industrial premises called Cleanlift Marine at Negara Crescent at Goodwood. She agreed, by saying "no", that she had never been there in her life and that she was most definite she was not there in late January or early February 2009.
That completed the cross-examination of Ms Vass and she was relieved from the need to attend the Court as a witness. Before the jury, neither counsel had asked anything of her concerning whether she had been in the vicinity of Marieville Esplanade on 26 January 2009 or on any other day.
Evidence was given by Mr Carl Grosser, a large part of whose work as a forensic scientist involved DNA profiling. His evidence included that it was "entirely possible" that a person's DNA profile might be found in a swab taken from a surface, notwithstanding that the person had never been on the surface. He explained that DNA is normally found in fluids of the body including saliva, blood and sweat and in skin, and that there is a potential for it to be transferred in some way. Its presence on a walkway could be accounted for by a lot of people passing over the area and one of them transferring onto the walkway the DNA of a person picked up elsewhere on the bottom of their shoe. Potentially anything could be carrying a person's DNA and could transfer it. He also made the point that although it was highly unlikely, the DNA profile of Ms Vass may have matched that of another person. He also pointed out that it is impossible to know when the item containing the DNA profile was deposited on the walkway. Scientists could only detect its presence in a swab taken on a particular date, but could not say for how long the substance containing the profile had been there.
Later, evidence was given by Detective Senior Constable Sinnitt that he could establish no connection between Ms Vass and the deceased and the Four Winds, apart from that established by the DNA result. He said that inquiries revealed that at least 21 people, not including personnel from Forensic Science Service Tasmania, had been on board the Four Winds from the time when it was first discovered sinking on its mooring on the morning of 27 January 2009, and the time the swab was taken from its walkway at Goodwood at 1.40am on 30 January 2009.
On the day after Ms Vass gave evidence, defence counsel applied to have her recalled as a witness. Since she had given evidence, counsel had received information that Detective Sinnitt had been informed by a member of staff at a women's shelter in New Town that Ms Vass was listed as a person who would be staying there on the evening of 26 January 2009, but she had told the staff that she wanted to sleep over at Unit 8 at an address she gave at Mount Nelson. The information was that she left the New Town shelter at 3.50pm with an arrangement that she would telephone later with the telephone number of the person with whom she would be staying at Mount Nelson, but she failed to do so. Although Detective Sinnitt was able to give that evidence, the judge ruled that it was inadmissible hearsay, a ruling that is not challenged.
In support of his application to recall her, counsel for the appellant said that when cross-examining her, he had not asked her anything about whether she had been at Marieville Esplanade, adding "but that theory had never been advanced at that stage". What he meant by that is not apparent. Ms Vass could have been asked about that when she was cross-examined the previous day, but was not.
Counsel continued:
"… and of course we now know, and we didn't know this at the time and I couldn't put anything to her obviously, that she wasn't living at [Lenah Valley] or Montrose and – as she had claimed in her evidence and that she was in fact at [New Town]. We didn't know at that time that she wasn't home on that night and we don't know where she was and it means that I'm in a situation where I need to put a whole series of questions to her that was not – material was not available to me beforehand and I submit it's in the interest of justice that this be allowed to be done.
…
So in a nutshell we had no material to put to this witness. Now it is a matter for the jury of course as to the question of her DNA on the deck. I'm going to be submitting 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. Now it's up to them to determine when that was and it's a jury question, I mean given – bearing in mind that this is a circumstantial case, they have to look at the hypothesis consistent with innocence, et cetera. Now we need to be able to put that to her and see what she says about it.
…
… my friend well knows that I cannot put to that witness the proposition that she committed the crime of murder on board that boat without there being some evidence to support it. What I might put to her tomorrow or any other day if I'm given leave to have her recalled, might be different thing depending on the nature and quality of the answers I get to the further questions that I submit should be asked of her. Nobody could properly have put that suggestion yesterday to her based on the limited amount of information that was available at that time – and I make the point yet again. This person was called as a witness without there being any prior statement, we had to deal with it as it fell – that's all we had at the time. We now have, as a result of what's been found in the file from Mr Sinnitt much more information, much more significant information and had I not called for that file to be produced we would never have known about it."
Crown counsel opposed the application. The trial judge ruled by saying :
"So far as Ms Vass is concerned, now that there is information that on the 26th of January was staying at [New Town] and told the – told someone there that she was going to spend the night at a particular address with a particular friend, then it may be that if it were put to her that there was a night when she had such a plan, that her memory might be jogged in some respect. The question is whether, if her memory were – as to where she went that night were jogged in some respect, that the possibility of her giving new evidence of any relevance would warrant the – her being recalled and the time and inconvenience taken to get her back and have those matters put to her.
I'm very conscious of the fact that this is a murder trial and you can't have a more serious charge. But the question of just where Meaghan Vass was and what she did on the night of the 26th of January seems to be peripheral when her version of events is unshakeably, or apparently unshakeably, that she did not go onto the Four Winds, that she didn't go to the slip yard at Goodwood and that she didn't go to Constitution Dock at or about the time that the boat was there. In my view the prospect of Meaghan Vass giving significant evidence if recalled is so slight as not to warrant the time taken to recall her. Having regard to how significant her evidence might be and how likely it is that she might say something of any relevance at all I think we'd be wasting time and that there's no realistic prospect of it making any significant difference if she were recalled. So I won't ask the prosecutor to recall her and I won't take steps to order her recall."
After the application to recall Ms Vass was rejected, cross-examination of Detective Sinnitt continued. In the course of it he said he had been unable to establish where Ms Vass had spent the night of 26 January 2009. Although there was no admissible evidence before the jury that Ms Vass had told the staff at the New Town shelter that she would be spending the night at Unit 8 at a Mount Nelson address, it was ascertained from Detective Sinnitt that he had gone to that address and could not find a Unit 8, although there were several units in the area. He confirmed that he had sought to interview Ms Vass but she had refused. Detective Sinnitt said that he had been unable to make a connection between Ms Vass and the area around Marieville Esplanade on 26 January 2009 or the morning of 27 January. However, in re-examination he said that when he spoke to her on 18 March 2010 she indicated to him that she believed she may have been hanging around the Goodwood area at the time of the disappearance of the deceased. He also said that his inquiries revealed that it was common for her whereabouts to be unknown and that it appeared that she was moving between several addresses and was homeless.
It was not made clear to the judge for what the appellant had applied. Counsel did not articulate what he sought to have his Honour do. It might have been to direct or request Crown counsel to locate Ms Vass and recall her to the witness box. It is possible, although extremely unlikely, that he wanted the judge to personally recall the witness. His Honour was alive to the lack of clarity when he concluded that he would not ask the prosecutor to recall her, and he would not take steps to order her recall.
It was settled by R v Apostilides (1984) 154 CLR 563 at 570 and 575, that a trial judge cannot direct a prosecutor to call a particular witness, and the same rule must apply concerning a witness who has given evidence, been relieved from the need to attend further and left the court. Concerning the power of a trial judge to call a person to give evidence, the High Court concluded at 575, 576 that, save in the most exceptional cases, a judge should not do so. It was not submitted for the appellant that the trial judge should have done so.
Whatever was intended by the appellant's counsel, it is clear that the ground of appeal cannot succeed unless the appellant is able to persuade the Court that a miscarriage of justice occurred because Ms Vass was not recalled for further cross-examination. It is a miscarriage of justice that is asserted by the ground. In R v Apostilides at 575, the High Court held that a decision by a prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. At 577 – 578, the court said that the central question becomes whether in all the circumstances, the verdict is unsafe or unsatisfactory. Therefore, it becomes necessary to focus on the objective consequences that the failure to call the witness, or in this case the failure to recall the witness, has had on the course of the trial and its outcome. Walsh v State of Western Australia [2011] WASCA 119 at par[69].
It was submitted by counsel for the appellant that the fact that the DNA profile from the yacht matched that of Ms Vass raised two possibilities in support of the defence case. One was that she was on the yacht at or about the time of the death of the deceased and was responsible for it, or had personal knowledge of facts material to a determination of who was responsible. The other was that she was responsible for, or a party to, a break-in on the yacht on 10 January 2009, which the appellant claimed had taken place.
Counsel for the appellant had the opportunity to ask Ms Vass questions that directly related to those two possibilities when he cross-examined her. The only question of that kind asked of her was: "Are you quite sure you've never been on board this boat?" She replied that she was quite sure of that. She was asked no question that directly concerned whether she had any knowledge concerning what happened on the boat on 10 January or 26 January. Nothing was asked concerning whether she was in the vicinity of Marieville Esplanade on either of those days or on any other day. At the end of the cross-examination, she was asked whether she went to Constitution Dock on about 27 January or to Cleanlift Marine at Goodwood in late January or early February.
Therefore, the request by the appellant's counsel to have her recalled so that he could cross-examine her further, consequent upon the receipt of the information from Detective Senior Constable Sinnitt, could only have been made for the purpose of attacking her credit, or demonstrating to the jury that she had no real memory of where she was at the relevant time. That she may have been residing at the New Town address on 26 January, and that she had expressed an intention to stay the night with someone at an address at Mount Nelson that may not have existed, had no direct relevance to whether she was on the yacht on 10 or 26 January.
I do not ignore that when making submissions to the judge for the recall of Ms Vass, counsel said that what he might put to her in further cross-examination would depend on the nature and quality of her answers. But whether she might have given answers that would have significantly assisted the defence case is entirely speculative. His Honour has not been shown to have erred when he concluded that the prospect of Ms Vass giving significant evidence if recalled was slight, and that there was no realistic prospect of further evidence from her making any significant difference.
The appellant has failed to establish that there is a significant possibility, one greater than a merely speculative one, that the jury would have acquitted her if Ms Vass had been recalled. It cannot be concluded that the verdict was unsafe or unsatisfactory, or that a miscarriage of justice resulted.
Ground 3
Ground 2 was abandoned. Ground 3 is:
"Ground 3: The learned trial judge erred:
a)in failing to direct that, in so far as the prosecutor suggested, in cross-examination of the appellant and/or in his final address, that the appellant sought to lay a false trail to divert police by making the diary entry purportedly of 10 January 2009 after the disappearance of Mr Chappell and by deliberately touching the winches on the yacht so as to make 'sure her mark was on [them]' despite being told not to do so by police, those suggestions should be ignored; or
b)in failing to give directions in accordance with Edwards v The Queen (1993) 178 CLR 193 or Zoneff v The Queen (2000) 200 CLR 234 in respect of the foregoing suggestions."
I mentioned earlier that it was the appellant's case, and she gave evidence of it, that on 10 January 2009 she and the deceased discovered that the Four Winds had been entered and searched, with floor hatches pulled up, cupboard doors opened, some of the cushions unzipped and mattresses flicked up, but that there was no damage and nothing was missing. She said that she and the deceased decided they would not report the matter to the police.
In evidence was the appellant's diary for 2009. For 10 January she had written a number of things. First, she had written that she and the deceased had gone out to fix the mizzen and found that the "boat has been accessed – electrical panel unscrewed – floor hatches lifted – water pump & valve cones [cover?] taken up!!! = get in sniffer dogs!" On the next three lines the handwriting, in slightly different coloured ink recorded: "Took sale off for repair – might leave main til later Tied down sail with straps [?]".
It was the evidence of Detective Sergeant Simon Conroy that when the appellant's group came on board the yacht at Constitution Dock on 27 January 2009, he requested that they not touch anything if they could avoid it, but nevertheless the appellant, saying that the winch handle should not have been in the winch, took hold of it and pulled it out of the winch. Sergeant Conroy also gave evidence that he reminded the appellant of the request not to touch anything, but she ignored the request again and took hold of a rope and unwound it from where it was wrapped around the winch. Sergeant Conroy's evidence of those matters was not challenged by the appellant's counsel in cross-examination.
In the course of the appellant's cross-examination, it was put to her by Crown counsel that following 26 January 2009 she had deliberately laid a trail of red herrings and raised issues that were really not issues, to divert the attention of police away from her. She denied that.
The following day at the trial, still in the course of cross-examination, Crown counsel asked her why the two diary entries for 10 January 2009 had been written with different pens. At first she denied that, but then appeared to accept it was so, maintaining that it was common for entries to be made in the diary with different pens. It was suggested to her that some time later she had returned to the page for 10 January and made a false entry about the yacht having been entered so as to provide "self corroboration" of a false claim by her concerning the break-in. She denied that.
Later in cross-examination, counsel for the Crown raised with her the touching of the winch handle despite being asked by Sergeant Conroy not to touch anything. First, she was asked whether Sergeant Conroy asked her not to touch things. She replied that she did not remember, but was prepared to accept that he did. It was put to her that she deliberately touched the winch handle to explain how her DNA was found on it, if that proved to be the case. She did not answer directly, maintaining instead that Sergeant Conroy asked her how the winch operated.[4] Counsel asked if that was her "real memory" or if she was making it up. She replied that she would not have touched the winch handle otherwise. Pressed further, she said she thought he asked, she was pretty sure he did. Asked whether it was her memory that Sergeant Conroy asked her to show him how the winch operated, she replied in the negative and said that he asked: "How does this work, how does – how does the set-up work?" She agreed that was her "real memory". She added that she touched the handles of two winches but was unable to remember when Sergeant Conroy asked her not to touch the handle, that is whether it was after she touched the first one or after she touched the second one.
[4] The Crown case was that Sergeant Conroy was experienced with vessels, knew how winches operated and would not have asked such a question.
Those passages of cross-examination should be understood in the context of the time during which the appellant gave evidence. It extended for over 8½ hours before the jury, of which cross-examination occupied almost 4½ hours.
Before closing addresses were made to the jury, the judge sought submissions from counsel concerning directions he should give the jury in his summing-up. Counsel for the Crown submitted that his Honour should give the jury a direction that accorded with Edwards v R (1993) 178 CLR 193.
The authority of that case is that if the Crown seeks to have the jury use a lie told by the accused person as evidence probative of guilt, the lie or lies relied upon for that purpose should be precisely identified, and the jury should be instructed by the trial judge that they may use a lie for that purpose only if they are satisfied that the lie was a deliberate one and, having regard to the circumstances and events, that it revealed a knowledge of the offence or some aspect of it and was told because the accused knew that the truth of the matter about which the lie was told would implicate him or her in the offence, or, to put it another way, because of a realisation of guilt and a fear of the truth. Edwards v R at 210 – 211. In such a case, the jury should also be instructed that there may be reasons for the telling of a lie apart from a realisation of guilt. It may be told out of panic, to escape an unjust accusation, to protect some other person, or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. Edwards v R at 211.
When the submission was made to the judge, who made the point that every lie relied upon by the Crown as an "Edwards lie" had to be identified in his direction to the jury, counsel for the Crown said that the only lies he would rely on for use by the jury as evidence probative of guilt were what counsel referred to as the "convocation of lies" by the appellant that she had gone to Bunnings during the afternoon of 26 January, and the alleged lies to the police that during that night she remained at home and had not gone down to Marieville Esplanade.
Concerning any other lies the jury might find had been told by the appellant, counsel for the Crown said that they were relevant to credit and he supposed that they would call for a direction of the type required by Zoneff v R (2000) 200 CLR 234.
In that case it was held by the majority of the court at 245 that when the Crown does not rely on statements by an accused person to found a submission that he or she lied out of a consciousness of guilt, it is unnecessary and undesirable to give a direction of the kind with which Edwards v R was concerned. However, a direction might appropriately be given in terms that include a warning that although it is a matter for the jury to decide what significance suggested lies have in relation to the issues in the case, the jury should not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.
On being asked by the trial judge, the appellant's counsel indicated he was content with what counsel for the Crown had submitted. He sought no relevant directions.
In summary, neither counsel sought a direction concerning the making of the diary entry or the touching of the winch handle.
I deal next with what was said by counsel for the Crown to the jury in his closing address about the making of the diary entry and the touching of the winch by the appellant. Early in his address, counsel argued that the appellant had raised "red herrings" and laid false trails to divert the police investigation and divert the jury. At a later point, counsel dealt with the appellant's claim that there had been a break-in on 10 January and a need for the appellant and the deceased to have the yacht searched for drugs. What he said next was:
"It's as deliberate a lie as I suggest squeezing in your diary on a date that you can fit it, 'We went on board, sniffer dogs, exclamation mark'. You'll see this diary. It's clearly in two pens. It's clearly in two pens. It wasn't disputed that it was. Laying a false trail. Over there, reasonable doubt, 'oh, it might have been smugglers'. Is that a reasonable doubt? Not when you look at."
Much later in his closing address, counsel dealt with the touching of the winch by the appellant in the course of dealing with the appellant's case that someone, other than her, was responsible for what had happened to the deceased. He said:
"I suggest it's not reasonably possible, not reasonably possible that there was someone else other than Ms Neill-Fraser there in the afternoon and in the evening. It's not reasonably possible that someone else, a complete stranger, killed Mr Chappell and disposed of his body and sought to clean up, someone else who of course would have had to have had intimate knowledge of the vessel, someone who knew where the winches were, the same someone I suggest who quite deliberately made sure her mark was on those winches when she inspected the boat with police the next day. She was told not to touch, she touched both of them and in this Court she says, 'Oh I did that because Mr Conroy asked me to show him how winches work'. Mr Conroy's told you of his sailing experience, why would he want to be shown how a winch works, it's just a complete lie. Someone who knew, I suggest, where to cut the pipe to make the water come in. Someone who knew even more intimately where to open the seacock that had no other apparent purpose, and you've heard evidence that most of the time seacocks have a purpose, so someone who knew where there was a seacock with no other purpose could be opened and let in the water."
Earlier in his closing address, counsel for the Crown asked the jury to consider why the appellant lied to police about not leaving home on the evening of 26 January and about going to Bunnings and being there for hours, pointing out that when she was confronted with evidence that Bunnings closed at 6pm, she did not abandon that lie other than to shorten her time at Bunnings. Counsel then put to the jury that they should conclude that she deliberately told those lies to police because she knew the truth would harm her interests, would tend to convict her.
In his closing address, counsel for the appellant argued that DNA evidence established that Ms Vass had been on the yacht by the time of the disappearance of the deceased, for her own evidence established that she was not on the yacht after that time, at either Constitution Dock or Goodwood. He raised that it was a reasonable conclusion that she was on the yacht "for no good" and more likely with some other person or persons. Reference was made to the appellant's claim that someone had been on the boat. He continued:
"Now I suggest to you that you have evidence from the accused of the unlawful entry on the 10th January, it's documented, you can bet your bottom dollar that if Mr Ellis thought that was a late entry or in some way was corrupted we would have had some scientific evidence about that. Remember the diary went into evidence through the prosecution."
Concerning the winches, counsel for the appellant twice submitted to the jury that the appellant had provided significant assistance to the police by pointing out to them irregularities on the yacht such as with the ropes and the winch handles. He made no mention of the suggestion by counsel for the Crown, which in cross-examination the appellant had denied, that she had deliberately touched those items to explain how her DNA may have been on them.
In the course of the summing-up, the judge made no mention of the subjects raised by this ground of appeal, that is the making of the entry in the diary and the touching of the winch. However his Honour dealt with the allegations of lies told by the appellant at length. First, he instructed the jury that the general rule was that if an accused person had told a lie, which had to be deliberate to amount to a lie, it did not amount to evidence of guilt. However, it could be taken into account when assessing the overall trustworthiness, or lack of it, of the things said by the appellant to the police and in her evidence. The jury was instructed not to jump to a conclusion that the telling of a lie was an indication of guilt. I will not deal with all of what was said by his Honour. Essentially the direction was in accordance with the direction recommended in Zoneff v R (supra).
Next, the judge dealt specifically with how the jury might use the alleged lies of the appellant about going to Bunnings and not leaving home on the night of 26 January. His Honour's directions were that it was open to the jury to treat them as evidence probative of guilt in accordance with an exception to the general rule that the telling of a lie must not be treated as evidence suggesting guilt. The directions that followed accorded with the requirements of Edwards v R (supra). They confined the application of the exception to any lies about going to Bunnings and remaining home that night.
Ground 6 of the appeal concerns an aspect of the directions of the learned judge concerning circumstantial evidence. I will deal with it later. However, at this point it is worthwhile mentioning his Honour's directions concerning circumstantial evidence. They were substantial. They included that there was no direct evidence that the appellant killed the deceased, whereas there was a body of circumstantial evidence upon which the prosecution relied. The direction included the standard one that in order to find beyond reasonable doubt that the appellant was guilty, the facts and circumstances from which the conclusion of guilt was drawn had to be established to the satisfaction of the jury, and the jury had to be satisfied beyond reasonable doubt that the conclusion of guilt was the only rational conclusion open on the whole of the evidence that the jury accepted. His Honour emphasised that if there was open on the whole of the evidence any "rational hypothesis" or "any sensible theory" consistent with innocence, then the appellant had to be found not guilty.
The summing-up adequately dealt with the issue of lies. It made clear to the jury that out of all the lies it was alleged the appellant had told, only those concerning Bunnings and remaining at home could be used as evidence probative of guilt.
At the conclusion of the summing-up, the judge asked for submissions in the usual way concerning whether counsel sought further directions or a correction of any direction given. Both counsel raised a number of points, but none concerned the directions about the possible use the jury could make of lies the appellant may have told, nor about the making of the diary entry or the touching of the winches.
Notwithstanding that no direction about those last two matters was sought by the experienced counsel for the appellant at the trial, it is now claimed on her behalf that the judge was obliged to give a direction concerning them that was similar to an Edwards or a Zoneff direction, and that a miscarriage of justice occurred because of the failure to give such a direction.
There is settled authority for the proposition that where the prosecution seeks to rely on evidence of post-offence conduct as probative of guilt, or as going to the credit of the accused's explanations, such as attempts to hide evidence, flight, setting up a false alibi or laying a false trail, a direction in the nature of an Edwards or a Zoneff direction should be given. See for example Nguyen (2001) 118 A Crim R 479 at pars[17] – [22]; R v Chang (2003) 7 VR 236; 140 A Crim R 573 at pars[39], [40] and [48]; R v Cook [2004] NSWCCA 52 at pars[25] and [50]; R v SBB (2007) 175 A Crim R 449 at pars[4] – [7] and [32]; R v MC [2009] VSCA 122 at par[61]. There is, in principle, no difference between the basis of the admission of such evidence, or the type of direction that is called for, as there is in the case of lies told by an accused person.
The entry made by the appellant in her diary for 10 January was a relatively minor piece of evidence that was relevant to her claim to the police, which was repeated in her evidence, that on that day persons unknown had broken into the yacht. It in turn formed part of her argument that the person or persons who killed the deceased may have been such a person or persons, and may have been drug dealers intent on locating drugs on the yacht. The diary entry was relied on by her in support of her credibility. The response of counsel for the Crown to all of that was that the jury should not believe the appellant and that they should consider her claim concerning the break-in to be untruthful. If the jury accepted that to be so, it followed that the diary entry was an untruthful one.
However, the Crown did not rely on any argument that the making of a false claim concerning a break-in was a lie told out of a consciousness of guilt. Notwithstanding that counsel for the Crown did say at one point in his closing address that the claim, like the diary entry, was a lie and the laying of a false trail, the essential thrust of what he said was that the appellant's claim should not be believed, and not that it was probative of guilt. In that connection, there seems to be significance in the fact that it is not a complaint of the appellant on the appeal that a direction of an Edwards or Zoneff kind should have been given with respect to the appellant's claim about the break-in on 10 January. Further, realistically the jury could not have concluded that the diary entry was false, based merely on a consideration of the fact that two pens had been used to make the entries for that date. Drawing the attention of the jury to the use of the different pens might have made it easier for the jury to doubt the appellant's truthfulness concerning a break-in, but it was not alone capable of amounting to evidence probative of guilt. No doubt the jury was well aware of that.
Concerning the touching of the winch, counsel for the Crown submitted that Sergeant Conroy's evidence, which was unchallenged when he was cross-examined, that the appellant touched the winch handle after being asked not to touch anything if it could be avoided, was not relied on by the Crown as evidence from which the jury could conclude guilt. Counsel submitted that the Crown sought to use it, along with some lies it was claimed she told, as affecting her credit. To the jury, counsel for the Crown asserted that the appellant's claim that Sergeant Conroy had asked her to show him how the winches worked was a lie. However, while it is correct to say that counsel did not suggest to the jury that the telling of that so-called lie was probative of guilt, his suggestion that she deliberately made sure her mark was on the winches carried with it a further suggestion that she did that because she was conscious her DNA might well be on them, and that evidence of it might prove adverse to her interests.
Nevertheless, it should not be concluded that a miscarriage of justice resulted. The suggestions made to the jury about the touching of the winch concerned a very small part of the evidence, and it was not a significant aspect of the Crown case, whereas there was a substantial body of other evidence that was probative of guilt. The trial judge did not think the touching of the winch to be significant, for he made no mention of it in his summing-up. Counsel for the appellant did not think it was of significance either, for he made no mention of it in his address to the jury, and he raised nothing concerning it for treatment by the learned judge in his summing-up. The failure to take the point at the trial is relevant to the determination of whether there was a miscarriage of justice. The appellant has not established that it is a reasonable possibility that the failure to direct the jury about how they used the evidence may have affected the verdict. Simic v R (1980) 144 CLR 319 at 332; Dhanhoa v R (2003) 217 CLR 1 at 18.
Ground 4
"Ground 4:The learned trial judge erred:
a)in leaving manslaughter and the heads of murder not involving an intention to cause death given that this was a 'murder-or-nothing' case; or
b)in directing, in answer to the jury's question on the difference between murder without an intention to cause death and manslaughter, that 'likely means something could well happen'."
Under the Criminal Code, s157(1), there are six different ways in which culpable homicide may amount to murder. The first three are commonly left for a jury's consideration. The last three are rarely left. The first three are:
(a)that culpable homicide was committed with an intention to cause death;
(b)that it was committed with an intention to cause a person bodily harm which the offender knew to be likely to cause death in the circumstances, although she had no wish to cause death; and
In the following part of the comments on passing sentence, the judge made the statement that is attacked by the second ground of appeal. The passage is:
"As a result of the means that she adopted to kill Mr Chappell and dispose of his body, Ms Neill-Fraser made it necessary for the police to undertake a very time-consuming investigation that involved a large number of officers making thorough inquiries over a long period. In my view, the steps that Ms Neill-Fraser took on the night in question to conceal her crime, and the inconvenience and expense of the investigation that she made necessary, are aggravating factors that I should take into account."
The appellant was 56 years old at the time of sentencing. She had no prior convictions. She had led a blameless life until she murdered the deceased. The judge found that apart from those matters there was almost nothing that counted in her favour for sentencing purposes. She did not plead guilty. She showed no remorse. She had not said or done anything that would assist in the finding of the body. There was no suggestion that the deceased said or did anything to provoke the crime or even to warrant hostility on the part of the appellant. It was a deliberate killing for the purpose of some sort of personal gain. His Honour concluded that "it warrants a heavier sentence than most murders".
Concerning parole, the judge said:
"I will make an order permitting parole because she has no prior convictions, and because a period of supervision is likely to be desirable after spending a long time in custody. In all the circumstances, I think it appropriate to impose a non-parole period well above the minimum."
It is convenient to deal with the second ground of appeal against sentence before the first. The statement that is attacked by the ground demonstrates that his Honour took into account as an aggravating factor the inconvenience and expense of a time-consuming police investigation made necessary by the steps taken by the appellant on the night in question to kill the deceased and dispose of his body.
When a sentencing judge refers to matters as aggravating factors, it is to be inferred that the matters have been taken into account for the purpose of imposing a sentence of greater severity than would have been the case if regard had not been had to those matters. The crime is considered a more serious one because of them.
The consequences of a crime are commonly taken into account. Obvious examples are hurt caused to a victim or a victim's family by a crime of violence. Dumping or concealing the body of a victim has been regarded as an aggravating circumstance that may be taken into account when sentencing for murder. Director of Public Prosecutions v England (supra) at 266; R v Von Einem (1985) 38 SASR 207 at 218; Bell v R (supra) at pars[23] – [25] and [61] – [62]; Colledge v Western Australia (supra) at par[16]; R v Cavkic (No 2) [2009] VSCA 43 at par[134]; R v Wilkinson (No 5) (supra) at par[61].
However, there is a need for caution about taking post-offence conduct into account when assessing the objective circumstances of an offence. R v Wilkinson (No 5) at par[61]. Not all such conduct may be taken into account in that way. In particular, it is well-settled that while a plea of guilty may be a mitigating factor, a plea of not guilty is not an aggravating factor. "It is quite improper to use language which may convey that an accused is being sentenced because he pleaded not guilty, or because he has run his defence in a particular way." R v Harper [1968] 2 QB 108 at 110, followed by the Court of Criminal Appeal in Hryczszyn v R [1976] Tas SR 10 at 13 – 14. See also Siganto v R (1998) 194 CLR 656 at par[30]. An accused is entitled to plead not guilty and to defend him or herself without attracting the risk of a higher penalty. Siganto v R at par[22]. It is impermissible to increase the sentence in order to mark the court's disapproval of the accused having put the issues to proof or having presented a time-wasting or even scurrilous defence. R v Gray [1977] VR 225 at 231.
Similarly, distress caused to a victim by having to give evidence may not be taken into account as aggravating. Siganto v R at par[35]; Harris v R [1967] SASR 316 at 328.
Further, while co-operating with the police and confessing may be mitigating, lies told to police in the course of an investigation cannot be aggravating. Fox v Fletcher unreported 17/1970 at 2 – 3. And while it may seem a fine line to draw, and in some cases, a mere matter of semantics, disposing of a victim's body may be aggravating, but a failure to disclose the whereabouts of the body is not, although it may evidence the absence of a mitigating factor. In R v Cavkic (No 2) (supra) at par[134] it was said:
"But to treat an accused's failure to reveal the whereabouts of the deceased's body as an aggravating factor would be tantamount to treating the accused's conduct of his or her defence as an aggravating factor; and, as counsel for Cavkic reminded us, it is no longer permitted to take that view. Siganto v R (1998) 194 CLR 656, at par[34]. An accused is entitled to conduct his or her defence within the bounds of the law and should not be prejudiced in the exercise of that right."
Similarly, in R v Wilkinson (No 5) (supra) at par[62], Johnson J said:
"However, the Offender's subsequent false statements to police and others concerning the whereabouts of the body cannot, in my view, be taken into account in an assessment of the objective seriousness of the murder itself. Nor can his failure to reveal the true whereabouts of the body: R v Cavkic (No 2) at [134]."
Applying those principles to the circumstances of this case I conclude, with respect, that it was an error by the judge to take into account as an aggravating factor the inconvenience and expense of a very time-consuming investigation of the appellant's crime that was made necessary by the appellant's post-crime conduct. While a plea of guilty may be taken into account in mitigation, having regard to the pragmatic ground that the expense of a contested trial is saved (Signato v R (supra) at 663 – 664), or the course of justice is facilitated (Cameron v R (2002) 209 CLR 339 at 343), the converse effect of a plea of not guilty and a denial of guilt must not be used as a circumstance of aggravation.
For these reasons, the second ground of the appeal should be upheld. It becomes unnecessary to consider the first ground, that of manifest excessiveness, for it follows that the duty of this Court is to quash the sentence and re-sentence the appellant, unless it holds the view that the sentence in fact imposed was the one this Court would have imposed.
The appropriate sentence
The findings of fact made by the judge should form the basis for re-sentencing. They are not challenged by the appellant.
Without limiting the Court's consideration of those findings, they include that she deliberately killed the deceased for personal financial gain arising out of her conclusion that their relationship, which commenced with them living together in 1992, was at an end. She killed Mr Chappell by using some form of violence, possibly by striking him from behind with a heavy object, implementing a plan she concocted in the mid-1990s. Having killed the deceased, she disposed of his body and took a number of steps to remove the evidence of what she had done, including an attempted scuttling of the Four Winds.
Mitigating factors include that at the age of 56 years, she had no prior convictions and it appeared that she had led a blameless life up until the murder. After leaving school she completed a three year course with the British Horse Society and thereafter worked with horses. From about 1975 to 1990 she operated a riding school. She has two adult children by a marriage that ended in divorce in 1988.
There are many variations between individual cases making it impossible to precisely calculate the appropriate sentence for most murders. However, since the abolition of mandatory life imprisonment in 1995, there have been a sufficient number of sentences and re-sentences for murder so as to enable a measure of consistency when sentencing for the crime. Generally speaking, a deliberate killing is more culpable than one that is not deliberate, and one that is provoked, committed because of a loss of self-control or through passion is not as culpable as a deliberate killing for personal greed. It may usually be expected that a sentence will be less severe for a person who is of good character compared to one who has a criminal record, particularly for violence.
Upon a consideration of other sentences for murder, and having regard to all the circumstances of the appellant's crime and the other relevant aspects of the case, I conclude that imprisonment for 26 years was more severe than I would have expected and the imposition of a non-parole period of 18 years was particularly so.
I would sentence the appellant to 23 years' imprisonment from 20 August 2009. Eligibility for parole should only be permitted when she has served the minimum term of imprisonment the Court considers to be required. In fixing it, account should be taken of her good character and record prior to the crime, and to her likely age when she may be released from prison. I would order that she is not to be eligible for parole until she has served 13 years of the imprisonment.
File No CCA 929/2010
SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
6 March 2012
223 I have had the benefit of reading the reasons of the Chief Justice in this matter. I agree with his reasons both as to the appeal against conviction and that relating to sentence. I would also dismiss the appeal against conviction. As to the appeal against sentence, I agree with the orders proposed.
File No CCA 929/2010
SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
6 March 2012
The appeal against conviction
I have had the benefit of reading the draft reasons for judgment prepared by Crawford CJ. I am substantially in agreement with those reasons and I would also dismiss the appeal against conviction. However, I wish to make some additional comments about an aspect of ground 6, which to a much lesser extent, also arises in relation to ground 7. Ground 6 concerns the evidence of Phillip Triffett. Both grounds give rise to a consideration of directions which, arguably, ought to be given as a matter of prudence in circumstantial cases. Such an issue was not specifically raised in argument, but for reasons which will appear, I think it is necessary to deal with the matter.
By ground 6 the appellant complains that the trial judge was wrong in directing the jury that the facts and circumstances from which a conclusion of guilt may be drawn need only be established to the satisfaction of the jury. The appellant argued that the trial judge should have directed the jury that they could not return a verdict of guilty unless they were satisfied beyond reasonable doubt of the facts essential to their reasoning towards proof beyond reasonable doubt of each element of the crime. Ground 7 makes that complaint specifically referrable to the issue of motive.
As Crawford CJ has held, the primary answer to the appellant's submissions is to be found in Shepherd v R (1990) 170 CLR 573, and the well known statements of Dawson J at 579 – 580, the particularly relevant parts of which have been set out in the learned Chief Justice's reasons at [159] – [160]. It is not the law that in all cases a trial judge should instruct the jury that they must be satisfied beyond reasonable doubt of all facts essential to their reasoning leading to satisfaction of guilt. However, it may sometimes be necessary or appropriate to identify an "intermediate fact" and to tell the jury that they must be satisfied beyond reasonable doubt of such fact before the ultimate inference of guilt can be drawn: Shepherd per Dawson J at 579, R v Merritt [1999] NSWCCA 29 at [70] – [71].
In Shepherd, Dawson J said that such a warning would not be appropriate where the evidence consisted of strands in a cable rather than links in a chain, the metaphor of Wigmore's which Callaway JA has described as helpfully describing "two distinct kinds of reasoning": R v Kotzmann [1999] 2 VR 123 at 129 [16]. As Callaway JA went on to point out at [17], it does not follow that "wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt". [Original emphasis] Much depends on the fact or issue in question. As his Honour explained: "One or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable."
What has caused me some difficulty in this case arises from the treatment of Mr Triffett's evidence by senior counsel for the Crown in his closing argument to the jury, and the notion of a "prudential direction" called for in certain cases based on circumstantial evidence, both of which I will later discuss. In his argument as to ground 6, counsel for the appellant highlighted Mr Triffett's evidence as being a particular example of evidence which was indispensable to the Crown case, and which demanded the direction argued for. It was submitted that it is "overwhelmingly likely that acceptance of this evidence was an indispensable step in the jury's reasoning towards guilt".
As noted in the Chief Justice's reasons, Mr Triffett's evidence referred to discussions he had had in about 1996 or 1997 with the appellant. First, when they were on a yacht, she asked him to help her take her brother out to sea and throw him overboard, weighing him down with a toolbox, after which Mr Triffett would then take the yacht and sink it after she had gone ashore in a dinghy. She showed him how to sink the yacht by using the bilge pump. He said that not long after that, the appellant complained about the deceased and said she wanted the same thing to happen to him as she had suggested before, except that she wanted him to be wrapped in chicken wire.
After Mr Triffett gave this evidence, he had to be recalled because it had been revealed that when speaking to police about what the appellant had said to him, he had asked about whether his assistance might help him with charges which had then recently been brought against him for possession of stolen property and the unlawful possession of ammunition. In her evidence at the trial, the appellant strongly denied the conversations with Mr Triffett. She was not cross-examined on his evidence at all. I will first examine the relevant authorities and then deal with the treatment of this evidence at trial by senior counsel for the Crown.
The "prudential direction" in circumstantial cases
At least in Victoria, there is an abundance of authority for the express proposition that a judge may choose to direct, as a matter of prudence, that a particular fact or matter in a circumstantial case should not be used unless the jury is satisfied beyond reasonable doubt of that fact or matter. A judge is not required to form the view that the evidence is an indispensable link in a chain of reasoning before giving such a direction. Consciousness of guilt evidence is often the subject of a "prudential direction": see for example the discussion in R v Ciantar (2006) 16 VR 26.
In R v Kotzmann (above) it was held that the standard of proof of "additional facts" in a circumstantial case was as explained in Shepherd, and that it did not follow from later High Court cases[6] that there were some additional facts that had to be proved beyond reasonable doubt even though they were not, in the strictly logical sense, indispensable links in a chain of sequential reasoning. Callaway JA referred to the need to direct a jury that it must be satisfied beyond reasonable doubt of a lie, if the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, and at 130 [21] said:
"Similarly, it is customary to direct a jury, for prudential reasons, that they should not act on a confession unless they are satisfied beyond reasonable doubt that it was made and that it was true … The confession may simply be part of the evidence. It may be the proverbial straw that breaks the camel's back." [My emphasis]
His Honour went on to say at 132 [28], that "… judges should not direct juries unless it is necessary to do so in the particular circumstances of a case, that there is a wider class of additional facts which are not links in a chain of sequential reasoning but do have to be established beyond reasonable doubt". His Honour referred to earlier remarks of his own in R v Best [1998] 4 VR 603 at 619 where he said:
"It must be made crystal clear to any jury that they cannot convict on any count unless they are satisfied beyond reasonable doubt of the accused's guilt on that count, but directions concerning the standard of proof of individual pieces of evidence or intermediate conclusions should not be given where it would be unnecessary or confusing to do so: see Shepherd v R. at 579. … I am content to say that the trial judge here should tell the jury that they must be satisfied beyond reasonable doubt of any piece of evidence or conclusion that is an essential component of their reasoning."
Later cases have confirmed the general approach. In R v Doherty (2003) 6 VR 393, there was a particular fact based on inference making up the circumstantial case, which seemed to have assumed much greater prominence than others in the trial. The trial judge told the jury that they could not use the fact in arriving at the ultimate conclusion of guilt unless satisfied of it beyond reasonable doubt. At 409 [26], Winneke P (Vincent JA and Ashley AJA agreeing) referred to the trial judge's direction, and said that although the case was essentially a "strands in a cable" one, "… there may be some facts in such a case on which the Crown relies which are so influential that, standing alone, they can be seen to constitute indispensable links in a chain of sequential reasoning towards guilt". His Honour went on to say that it was immaterial whether the trial judge was correct in his analysis of the significance of the fact because "the directions … on this point may have been favourable to the [accused]".
R v LRG (2006) 16 VR 75 concerned evidence of uncharged acts of a sexual nature admitted in order to show the relationship between the complainant and the accused. Callaway JA (Vincent and Harper JJA agreeing) said at 99 [39] that as well as evidence which amounted to an indispensable link in a chain of reasoning leading to guilt, there is evidence "which, although logically only a strand in a cable, is of such practical importance that it is prudent to direct the jury that they must be satisfied about it beyond reasonable doubt".
LRG and other cases in the line of authority were referred to in Kotvas v R [2010] VSCA 309. The relevant evidence in a circumstantial case was that of DNA from blood stains. At [26] Redlich JA (Maxwell P and Ashley JA agreeing) explained the prudential direction concept as follows:
" The fact that the expert evidence was not a link in a chain of reasoning does not dispose of the question whether such a direction should have been given to the jury. It is well recognised that such a direction may be required in relation to a piece of evidence if that evidence, 'although logically only a strand in a cable, is of such practical importance that it is prudent to direct the jury that they must be satisfied about it beyond reasonable doubt.' [R v LRG (2006) 16 VR 89, 99 (Callaway JA, with whom Vincent and Ashley JJA agreed) Cf R v Franklin (2001) 3 VR 9, 47 (Ormiston JA); R v Berry (2007) 17 VR 153, 170 (Redlich JA).] As Winneke P stated in R v Doherty (2003) 6 VR 393 such a direction can be reconciled with the statements of Dawson J in Shepherd. Even in a 'strands in a cable' case, there may be some facts on which the Crown relies which are so influential that, standing alone, they should be treated as though they were indispensable links in a chain of reasoning towards guilt. - # [R v Doherty (2003) 6 VR 393, 409; followed in R v Lam (Ruling No 18) [2005] VSC 292 (Redlich J), 24 May 2005.] Accordingly, where a fact assumes such importance to the prosecution case, the trial judge will, as a matter of prudence, so direct a jury to ensure that a perceptible risk of a miscarriage does not occur."
The court found no error in the directions, given that the trial judge specifically made reference to the DNA evidence in the context of reminding the jury of the need to be satisfied beyond reasonable doubt of facts upon which inferences were based, and had also told the jury that they must not reason from those facts the conclusion of guilt unless it was the only reasonable explanation open on the evidence.
Before moving on, I would add references to the Victorian cases of R v Heaney [1999] VSCA 169, R v Farquharson (2009) 26 VR 410 at 462 [201], and more recently, Wilson v R [2011] VSCA 328 per Redlich JA and Kyrou AJA at [160] – [170]. The "prudential direction" in circumstantial cases does not seem to have been discussed, at least as such, in other jurisdictions. In Martinez v Western Australia (2007) 172 A Crim R 389 the court indirectly noted its existence by setting out a quotation from Ciantar (above), but no point about it arose. I strongly suspect that the proposition is not one which is confined to Victoria, and, in the types of cases identified, the direction is one which is not uncommon elsewhere. This is notwithstanding that in some cases, such a direction may be regarded as unduly favourable to an accused: R vDoherty (above); R v Ho (2002) 130 A Crim R 545 per Bell J at 560 – 561 [63]. The level of authority of the Victorian cases to which I have referred, means that the relevant statements should be followed unless they are plainly wrong: Farah Constructions Pty Ltd v Say - Dee Pty Ltd (2007) 230 CLR 89 at 152 [135]. For my part at least, I am not convinced that they are, but it pays to look at where the prudential direction might stand in the scheme of things.
More generally, it is well established that directions or warnings to a jury, other than those necessary by way of a rule of law or practice, should be given whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Carr v R (1988) 165 CLR 314 at 330; Longman v R (1989) 168 CLR 79 at 86; Duke v R (1989) 180 CLR 508 at 515; McKinney v R (1991) 171 CLR 468 at 480; Pollitt v R (1992) 174 CLR 558 per Brennan J at 586. It seems to me that to a large extent the "prudential direction" is really a species of the genus of the directions needed to avoid a perceptible miscarriage of justice. More simply, it may be a particular application of the general principle. Although often said to be given as a matter of prudence, the wisdom is exercised because there is a particular need for the direction in the circumstances of the case, in order to ensure a fair trial. These instances would arise where it is clear that a certain fact or body of evidence is so influential or of such importance that it should be treated as an indispensable link in a chain of reasoning.
Perhaps the true "prudential direction" arises in cases where there are reasons to suggest that a jury might reasonably take the view that a fact or body of evidence is essential to their reasoning process. The point is best illustrated by the approach of Warren CJ, Nettle and Redlich JJA in Farquharson (above). The evidence the subject of scrutiny was that of a pre-crime conversation, and later attempts to suppress that conversation said to be motivated by consciousness of guilt. It was submitted that the evidence was likely to be so influential that it should be treated as an essential link in the chain of reasoning to guilt and as therefore needing to be proved beyond reasonable doubt. The Crown's submission was that the evidence "was but a small sub-part of only one of the three major strands of the Crown's circumstantial case and so, regardless of which way it went, it could not be supposed to have had a significant influence on the jury's conclusion". At 463, their Honours said:
"[203] We reject that submission. We allow that the evidence of the … conversation and the evidence of consciousness of guilt need not necessarily have been indispensable links in the chain of reasoning to guilt. Logically, it was possible, albeit perhaps unlikely, for jurors to be persuaded of guilt beyond reasonable doubt on the basis of the other evidence alone. But, given that the offences were both extraordinary and counter-intuitive, we think it likely that at least some jurors may have required the added satisfaction of King's evidence as to the … conversation, and possibly also the inference of consciousness of guilt, in order to be persuaded of the applicant's guilt. Hence, therefore, in our view, an appropriate beyond reasonable doubt warning was required as a matter of prudence.
[204] We repeat that the jury were not bound to regard the evidence of the … conversation, or of consciousness of guilt, as essential to their process of reasoning. It follows that it would have been an unwarranted usurpation of the jury's function to direct the jury simply that they could not act upon King's evidence of the … conversation, or on the basis of the evidence of the consciousness of guilt, unless satisfied of that evidence beyond reasonable doubt. But we think that the jury should have been told that, if the … conversation or consciousness of guilt were essential to their reasoning process, they needed to be satisfied of those things beyond reasonable doubt. Perhaps the best way to have done that would have been to direct them that, unless they were prepared to convict in the absence of King's evidence as to the contents of the … conversation, they had to be satisfied of that evidence beyond reasonable doubt." [My emphasis]
The facts of this case
As to the facts, in his closing argument at the trial, senior counsel for the Crown (the Director of Public Prosecutions) left mention of Mr Triffett's evidence to near the very end. He said:
"Now I haven't mentioned Mr Triffett because like any of these other pieces of evidence, like Mr Hughes' sighting, [of the inflatable dinghy coming from the direction of the Royal Yacht Club at between 11.30pm and midnight on 26 January] you can take that out, you can reject that, you can say he was, I don't know, seeing things. I don't know why you would, he doesn't seem to be a person who sees things. And Mr Triffett, now Mr Phillip Triffett came in here – came in here and said that quite some years ago when she was complaining that Bob was stingy, which she know she complains about, and was drinking too much, which everyone that she doesn't like seems to, she wanted his assistance in killing him, throwing him overboard, sinking the then boat."
There followed a discussion about the evidence of Mr Triffett and why it ought to be accepted. The Director finished this part of his submissions to the jury by saying:
"But the evidence of Mr Triffett, like all the evidence in this case, is for you. One or two of you might say, 'Oh I don't know about Triffett's evidence, it doesn't really help me one way or another', or 'Oh put that to one side', but still find her guilty, still be satisfied beyond reasonable doubt that all the evidence, all considered properly, points to her guilt beyond reasonable doubt and others of you might say, 'That for me is the sealer. I accept him as an honest witness, not a sophisticated man, I accept what he says and that for me is the sealer, I am satisfied beyond reasonable doubt'. Well that's fine, it's for what you each make of it individually." [Emphasis added]
Senior counsel for the appellant at the trial put to the jury a number of reasons for the total rejection of Mr Triffett's evidence. He commented on the failure of the Crown to cross-examine the appellant, saying that it was perhaps an acceptance that not much reliance could be placed on Mr Triffett. Referring to the Director's closing arguments, senior counsel said, "He certainly didn't seem to press too hard at the end, I thought, a matter for you, that you should accept Triffett".
Discussion
It has troubled me as to whether ground 6 had merit, at least as far as Mr Triffett's evidence is concerned, having regard to what the Director said to the jury about that evidence. (Before going on, I want to make it clear that I am not being critical of what was said.) I think the Director's statements are capable of conveying the notion to the jury that they might not be satisfied as to guilt on all of the other evidence, but that, to echo the language used by Callaway JA in Kotzmann (above), the evidence of Mr Triffett was the proverbial "straw". The statements are capable of suggesting that to some jurors the evidence should assume very considerable significance, if not become indispensable. They are also capable of conveying the notion that a majority of jurors might find themselves in the situation of not being satisfied on all of the other evidence. Prompted by those remarks, some members of the jury might have come to view Mr Triffett's evidence as essential to their reasoning towards guilt: Farquharson (above). Against that, I at once acknowledge that the comments are equally capable of merely suggesting that guilt could readily be established without reference to the Triffett evidence which may be viewed as problematical, but if a reasonable doubt existed on the other evidence, adding the Triffett evidence into the mix might well change that position.
The trial judge directed the jury that the crime may be proved beyond reasonable doubt by circumstantial evidence, provided that:
· all the facts and circumstances from which the conclusion of guilt is drawn must be established to the satisfaction of the jury; and
· the jury must be satisfied beyond reasonable doubt that guilt is the only rational conclusion open on the whole of the evidence which the jury accepts; if there is any rational hypothesis consistent with innocence open on that evidence, the accused must be found not guilty.
Counsel for the appellant in this Court noted that the trial judge in explaining the first part of this direction illustrated the difference between being "satisfied" of facts and being "satisfied beyond reasonable doubt" of guilt by reference to the evidence of Mr Triffett. His Honour said:
"So, for example, if you're considering whether you accept the evidence of Mr Triffett or not, if you are satisfied that his evidence is true then you may take that into account. You don't need to reach a state where you're satisfied beyond reasonable doubt that his evidence is true before you may take it into account, and that applies to every piece of evidence in this case, every piece of circumstantial evidence. The first question is am I satisfied of the truth or correctness of that evidence, not am I satisfied beyond reasonable doubt of the truth of that piece of evidence."
At this point I should note that during discussions between the trial judge and counsel about a draft memorandum to the jury containing essential directions, senior counsel for the appellant said that he had no difficulties with the proposed direction on circumstantial evidence. That was the one which was ultimately given. There followed a discussion about the status of evidence of motive in this context, senior counsel's final position being that he sought a direction to the jury that evidence of motive had to be proved beyond reasonable doubt. (That submission relied on Penney v R (1998) 72 ALJR 1316. The trial judge refused to do so and it is that failure which is the subject of ground 7.)
The question which arises in this case is whether such a direction as to Mr Triffett's evidence should have been given. This is in light of the principle as to required directions, and in light of the recognised "prudence" of directing a jury of the need to be satisfied beyond reasonable doubt in a circumstantial case of facts which are so influential that they should be treated as indispensable links in a chain, or which may assume a high level of practical importance or significance to proof of the Crown case.
Whilst in strict terms, and at the risk of being unduly favourable to the appellant, it might have been desirable to give the direction about the Triffett evidence, I am not persuaded that the trial judge erred in not doing so, or that in any event, a miscarriage of justice has occurred. For an appellate court to intervene, the risk of a miscarriage of justice must be real, not fanciful; it is not enough that a conclusion is reached that a particular direction would have been desirable: BRS v R (1997) 191 CLR 275 per Kirby J at 330; R v Heinze (2005) 153 A Crim R 380 per Eames JA at 388 [27].
Unlike Farquharson's case it cannot be said that the evidence lay "at the heart of the Crown case, or was likely to have been highly influential." As Crawford CJ has said, proof of the appellant's guilt depended entirely on circumstantial evidence of which there was a great amount. It was a circumstantial case made up of an accumulation of detail. The same comments as were made by the Director about Mr Triffett's evidence can be made about any of the other more significant details which went to make up the Crown's circumstantial case. I do not think it can be said that Mr Triffett's evidence (or indeed any other item of circumstantial evidence) was, of itself, particularly influential or significant. It must be put alongside all of the other evidence, and regard had to the way in which emerged and to the fact that the appellant was not cross-examined about it. Additionally, a significant attack was mounted on Mr Triffett's credibility.
Further, although a conscious decision by counsel not to seek a particular direction does not overcome the effect of the absence of an appropriate direction, the significance of the evidence to which the direction relates might be gauged from that decision. Although the trial judge did not say that the standard of proof was that of beyond reasonable doubt, the directions given stressed that the jury needed to be satisfied of the truth of the Triffett evidence before acting upon it. The need to consider the desirability of the direction really only arose as a result of the Director's suggestion as to how the evidence might be used. Notwithstanding one view which might be taken of those comments, in light of how they otherwise may have been interpreted as I have indicated, and in any event, I do not regard it as likely that the evidence assumed such significance that a miscarriage of justice has been caused by the trial judge only giving the standard directions applicable to this type of circumstantial case.
In relation to ground 7, counsel for the appellant did not submit that the evidence of motive was an indispensable step in the jury's reasoning process, nor that it would have been highly influential or had a high level of practical importance. The submission was confined to what should be made of Penney v R (above). For completeness, I add that I do not see anything in the motive evidence which would suggest that a "prudential direction" should have been given.
The appeal against sentence
I agree with the reasons of Crawford CJ for concluding that the second ground of this appeal is made out. I am content to join in the making of the orders of re-sentence which his Honour has proposed.
- AGLC
- Neill-Fraser v Tasmania [2012] TASCCA 2
- Case
- [2012] TASCCA 2
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court included whether facts establishing motive are indispensable to inferring guilt and must be proved beyond reasonable doubt, and whether a direction to the jury that intermediate facts must be proved beyond reasonable doubt is necessary when relying on circumstantial evidence. The Court also considered whether the appellant's alleged lies and post-offence conduct, including the laying of a false trial, were relied upon by the Crown as probative of guilt or merely going to credit, and whether the jury was adequately directed on this distinction. Finally, the Court examined whether the inconvenience and expense caused by the appellant's actions during the investigation constituted an aggravating factor for sentencing purposes.
The Full Court held that it is not necessary for facts establishing motive to be proved beyond reasonable doubt, nor are they indispensable to the drawing of an inference of guilt. The Court affirmed that the ultimate question for the jury is whether the evidence, taken as a whole, proves guilt beyond reasonable doubt. Regarding the direction on circumstantial evidence, the Court found no error in the trial judge's directions, concluding that a specific direction that intermediate facts must be proved beyond reasonable doubt is not a requirement. The Court also determined that the trial judge's directions concerning the appellant's conduct were adequate, distinguishing between conduct relied upon as evidence of guilt and that going only to credit. The Court granted leave to appeal against conviction but dismissed the appeal, finding no error in the conviction. However, the appeal against sentence was allowed.
The Full Court quashed the original sentence and, in lieu, sentenced the appellant to imprisonment for 23 years, commencing from 20 August 2009, with a non-parole period of 13 years.
Orders
Orders of the court
1. Insofar as leave to appeal against conviction is required, leave is granted.
2. Appeal against conviction dismissed.
3. Appeal against sentence allowed.
4. Sentence quashed and in lieu the appellant is sentenced to imprisonment for 23 years from 20 August 2009 and it is ordered that she is not to be eligible for parole until she has served 13 years of the imprisonment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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