Neill-Fraser v Tasmania - [2019] TASSC 10

[2019] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Neill-Fraser v Tasmania [2019] TASSC 10

PARTIES:  NEILL-FRASER, Susan Blyth
  v
  STATE OF TASMANIA

FILE NO:  2506/2015
DELIVERED ON:  21 March 2019
DELIVERED AT:  Hobart
HEARING DATES:  30, 31 October 2017, 1 November 2017,

8, 9 March 2018, 22, 23, 31 August 2018
5, 6 February 2019

JUDGMENT OF: Brett J

CATCHWORDS:

Criminal Law – Appeal and new trial – Procedure – Power to bring appeal – Other matters – Application for leave to lodge a second appeal against murder conviction – Reasonable case that there is fresh and compelling evidence – Leave granted.

Criminal Code (Tas), s 402A.
Van Beelen v The Queen [2017] HCA 48, 349 ALR 578; Mickelberg v The Queen (1989) 167 CLR 259, applied.
Aust Dig Criminal Law [3540]

REPRESENTATION:

Counsel:
             Applicant:  T Percy QC, C Carr, P Smallwood
             Respondent:  D Coates SC, J Shapiro
Solicitors:
             Applicant:  Galbally & O'Bryan Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2019] TASSC 10
Number of paragraphs: 56

Serial No 10/2019
File No 2506/2015

SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA

REASONS FOR JUDGMENT BRETT J

21 March 2019

On 27 October 2010, the applicant was convicted of the crime of murder, after a finding of guilt by a jury. The victim was the applicant's partner, Robert Chappell.
Mr Chappell disappeared during the afternoon or night of 26 January 2009. He was last seen by someone other than the applicant at Marieville Esplanade, Sandy Bay on the morning of that day. According to the applicant, she last saw Mr Chappell when she left him aboard their yacht, Four Winds, which was moored off Marieville Esplanade, during the afternoon of 26 January. When police boarded the Four Winds the following morning, there was no trace of Mr Chappell. Despite an extensive search, he has never been found.
The case against the applicant was entirely circumstantial. It is properly described as a "strands in the cable" case. The substantial aspects of the circumstantial case were as follows:
(a)Evidence which suggested that Mr Chappell had met with foul play on the night in question, and had not disappeared accidentally.
(b)Motive and opportunity on the part of the applicant.
(c)A series of lies told by the applicant to investigating police, principally in relation to her whereabouts and movements on the night in question.
(d)The likelihood that the person responsible for Mr Chappell's disappearance had used the yacht's dinghy to travel to the yacht on the relevant night, and evidence which linked the applicant to the use of the dinghy that night, despite her denials in that regard.
(e)Evidence which suggested that the yacht had been tampered with on the relevant night by a person familiar with it.
At trial, the applicant gave evidence denying involvement in or knowledge of the circumstances of the disappearance of Mr Chappell. It was argued on her behalf that the evidence did not exclude, beyond…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] TASSC 10
Decision Date: 21 March 2019

CaseChat Overview and Summary

The matter before the court involved an application for leave to lodge a second appeal against a murder conviction. The applicant, Neill-Fraser, was previously convicted of the murder of his wife, Janelle, in 2004. The court was tasked with determining whether Neill-Fraser had a reasonable case that there was fresh and compelling evidence that could lead to a different outcome if the appeal were heard. The application was made to the High Court of Australia.

The central legal issue before the court was whether the applicant had demonstrated that there was fresh and compelling evidence that could result in a different outcome if the appeal were heard. The court needed to assess the strength of the new evidence presented and whether it was compelling enough to warrant a second appeal. The applicant argued that the new evidence, which included information about potential police misconduct and the reliability of key witnesses, was significant enough to warrant a new appeal. The court was required to determine if the new evidence met the threshold for being considered fresh and compelling.

In delivering the judgment, the court found that the applicant had indeed demonstrated a reasonable case that there was fresh and compelling evidence that could lead to a different outcome. The court considered the nature of the new evidence, including the alleged police misconduct and the reliability of the witnesses, and concluded that it was significant enough to warrant a second appeal. The court granted the application for leave to lodge a second appeal, emphasising the importance of ensuring that justice is served and that any potential miscarriage of justice is rectified. The court's decision was based on a detailed analysis of the new evidence and its potential impact on the original conviction.

The final order of the court was that leave to lodge a second appeal against the murder conviction was granted. The applicant was permitted to proceed with the second appeal, allowing for the new evidence to be considered by a higher court. This decision ensures that the applicant has the opportunity to have the new evidence assessed in the context of the entire case, potentially leading to a different outcome.

Orders