Neill-Fraser v The State of Tasmania
[2022] HCATrans 128
[2022] HCATrans 128
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Hobart No H1 of 2022
B e t w e e n -
SUSAN NEILL‑FRASER
Applicant
and
THE STATE OF TASMANIA
Respondent
Application for special leave to appeal
GAGELER J
STEWARD J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON FRIDAY, 12 AUGUST 2022, AT 9.35 AM
Copyright in the High Court of Australia
GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances.
MR R. RICHTER, QC appears with MR P.J. SMALLWOOD for the applicant. (instructed by Galbally & O’Bryan Lawyers)
MR D.G. COATES, SC appears with MR J.R. SHAPIRO for the respondent. (instructed by Director of Public Prosecutions (Tas))
GAGELER J: Mr Richter. Mr Richter, I believe you are on mute.
MR RICHTER: I am very sorry, your Honour. Can I commence by assuming that the Court is familiar with the outline of the applicant’s application, the response and the reply?
GAGELER J: Yes, of course, and stating the obvious, Mr Richter, it is necessary for you to establish a reasonable prospect of success on each of your three grounds.
MR RICHTER: Yes, it is, your Honour. Could I open my submission by stating that so far as the circumstantial case was concerned, we concede at the outset that had there not been any scientific DNA evidence there was a strong circumstantial case, although it was disputed and fought hard, nevertheless there was a strong enough circumstantial case to allow a jury to reach a lawful verdict on that evidence alone.
Now, so far as the aspect of the rich and circumstantial case that my learned friends rely on, as I say, it was challenged. I want to go to the chronology of the trial, because it is of great significance in determining whether or not has been a fair trial, because at the background of all these grounds the question of fairness is always there.
The trial started on 21 September 2010. At that stage, when my learned friend the Director opened the case, Vass was not mentioned and there was no indication that Vass would be called. There was no proof of a statement. There was no interview that elicited anything that would tell the court and the jury what it is that Vass was going to say. So, the point is completely blank.
It remains completely blank until we get to 28 September, in which there is an exchange between Mr Ellis, his SC, and the court. And there is a mention – your Honours may not have the transcript, but I do not think this is in dispute – Mr Ellis says:
You may have it in the supplementary volume, your Honour, I think. There’s certainly nothing from her.
Because there was a question by his Honour, saying:
I don’t think I’ve got anything in my papers at all that tells me –
anything. Mr Ellis says:
what happened, your Honour, was that there was a piece of DNA or a swab from DNA – DNA was found on the deck of – I think it’s the deck of the Four Winds –
Well, we know it was the deck of the Four Winds. Mr Ellis says:
analysis didn’t match it with anyone, but then Ms Vass fell foul of the law and when her DNA was taken it did match that. And so we have this piece of DNA that seems to belong to her on the deck of the Four Winds and no one quite knows how it has got there. She has been uncooperative and, to be fair, I think she suffers –
that is not evidentiary:
She has been uncooperative –
So, we come to a situation in which she is called cold. Absolutely cold. We do not know what on earth she is going to say. We do know that there is a primary deposit of her DNA on the Four Winds, and that we assume, at this stage, that it had been there at that relevant time.
GLEESON J: What do you mean by “primary deposit”, Mr Richter?
MR RICHTER: There are two types of DNA deposit. One comes from actual – either bodily fluids or touch onto a surface, and that is called a primary deposit. The second might be described as a transfer. There are all kinds of transfers, but they would be described as secondary touches or secondary transfers. What we do not have, and did not have at trial to begin with, is an explanation that there was any challenge to the notion that the deposit on the boat was a primary deposit, i.e., she was on the boat, because the DNA profile was complete and perfect and sufficient and ample.
Now, we did not know about the amplitude of it until it was later disclosed after Mr Grosser gave his evidence and after Megan Vass gave her evidence. She gave her evidence – there was a Basha inquiry at which at the end, subject to cross‑examination by defence counsel, who was an experienced criminal lawyer, but as all experienced criminal lawyers sometimes do, they fail to ask the questions, but he did ask the questions and he got the answers, which were that she had no familiarity with Cleanlift where the boat was stored after being removed to the Constitution Dock first and then to Cleanlift at Goodwood.
Now, the situation is thus that there was no basis for Mr Gunson, the late Mr Gunson, to undertake any forensic work, he not having been confronted with the notion that Vass was going to be a witness, nor being told that there was a suggestion by anyone that there was a secondary transfer at that stage. There was nothing in the opening.
So, we then get to the stage at which the Basha is on 29 September. We are already eight days into the trial, having gone through the opening and other matters, and Vass is called immediately after the Basha. When she is examined and cross‑examined, the upshot of her evidence is – and she agrees with the proposition – that she had never been to the vicinity of Cleanlift at Goodwood, knows nothing about it, essentially, that she has not been to the yacht. Indeed, a photo was shown to her of the yacht, she did not recognise it at all, said it is not – no recognition ‑ and thereafter there was a situation where she also said that she was never at Constitution Dock.
GLEESON J: So that at least raises a question about whether this deposit is a primary deposit.
MR RICHTER: Well, it raises the question of whether or not she was there on the yacht at the material time because if she says she was never on the boat, if she denies other aspects of her presence, the question of primary deposit does not arise because no one has raised the notion that it was possibly a secondary deposit. It seems obvious why that would have been the case, unless someone later asks to try and bring it in by way of the prosecution. In other words, at that stage, we are facing what is a large, significant, full DNA profile of Ms Vass.
STEWARD J: Mr Richter, can I ask you a question, please?
MR RICHTER: Yes, your Honour.
STEWARD J: At that stage of the trial, what notice did the defence have of Mr Grosser’s evidence? What did they know about it ‑ ‑ ‑
MR RICHTER: None.
STEWARD J: None?
MR RICHTER: None about this aspect of transfer. None. Because there was a whole lot of other DNA ‑ ‑ ‑
STEWARD J: But had Mr Grosser – was there some notification of Mr Grosser’s evidence before this point in the trial?
MR RICHTER: No, no, no. And the evidence came in re‑examination. The evidence came in a re-examination, in fact, by Mr Coates. In other words, it came as a complete surprise in that sort of sense. So, the second aspect of it, the secondary transfer ‑ ‑ ‑
GAGELER J: You are giving us a chronology, Mr Richter. We were up to the 29th of September.
MR RICHTER: Yes, your Honour.
GAGELER J: Now, where does ‑ ‑ ‑
MR RICHTER: Mr Grosser fits in ‑ ‑ ‑
GAGELER J: ‑ ‑ ‑ Mr Grosser’s evidence fit in? Sorry.
MR RICHTER: Mr Grosser gave evidence immediately after Vass. All of that can be found in Justice Estcourt’s judgment, where there is a completely full summary, which we adopt, of course. He adopted the factual summary, given that the previous trial by the learned Chief Justice then‑Chief Justice Crawford – and that – so on the chronology ‑ ‑ ‑
STEWARD J: Mr Richter, sorry to trouble you again. Just with Mr Grosser, at that point, before he talked about secondary transfer, had he offered any explanation at all as to how the DNA could have got onto the boat?
MR RICHTER: No.
STEWARD J: Or was it – all right. Thank you.
MR RICHTER: No. None. Then, in re-examination – because Mr Gunson was not concerned with the DNA aspects relating to other people at all. In the re‑examination, my learned friend, Mr Coates, the Director, he elicits the notion of the possibility of a secondary transfer, to which Mr Grosser says, it is entirely possible. But when we come to the question of analysing why or how that could be said – in fact, the learned defence counsel asked for Mr Grosser to be recalled after an email was released – sorry. It was Mr Ellis who was Director at the stage.
When the question was asked, well, we have to recall Mr Grosser, his Honour refused. The learned presiding judge refused. So, we have the situation that arose subsequently at the application for a second appeal at which Mr Grosser gave evidence and at which Maxwell Jones gave evidence and the situation is this: yes, of course it is possible. It is not entirely possible unless there is a specific set of circumstances which is outlined in some way to enable the possibility of saying yes, there could have been a secondary transfer. So, that is at the heart of this matter and it is a question of law, and the reason we say it is a question of law and a significant question of law is this: where you have a circumstantial case that does not touch the issue of whether or not Vass was on the boat at the material time, where you have that sort of issue, the defence was clear.
The defence was, at its summing up and everywhere else, that it was Vass who had been on the boat at the material time with others – with others. No one is suggesting that Ms Vass could have lifted and winched and so on and so forth, but there were others who had the ability and the possibility. So, it become a question of this is the defence; has the prosecution disproved it beyond reasonable doubt, that defence of, it was Vass on the boat with others? Unless that is capable of being refuted beyond reasonable doubt, it leaves a reasonable possibility of innocence and it is a significant reasonable possibility of innocence.
What happened, we would say, in the light of the submissions that have come and gone, is this, that there was a subtle reversal of burden of proof that was never noticed by the learned trial judge who gave his summing‑up. So, we have a situation where a jury might have been left on the basis of, well, we look at all the evidence – and they do have to look at all the evidence – but the defence – to look at the defence you need to look at it from the point of view of saying the defence is the applicant was not there on the boat at the time. Ms Vass was, with others, or even with or without others. That defence, having been raised, that had to be rebutted beyond reasonable doubt by a demonstration that somehow the DNA that was on the boat or gangway or the entranceway to the boat itself, was not a secondary deposit, and that is how that issue arises.
GAGELER J: Mr Richter, there is a summary of Mr Jones’ evidence in your written submissions that was taken from the judgment of Justice Brett.
MR RICHTER: Yes, your Honour.
GAGELER J: Are you able to encapsulate how that evidence of the possibility of a secondary transfer differs from the evidence with which the jury was left at the trial?
MR RICHTER: It differs – and it is not a matter of difference in emphasis. It is difference with an expert saying, look, of course it is theoretically possible that there is a secondary transfer, but in order to make that a viable answer what is required is a specific set of circumstances that would allow a jury to say, I understand, this is how a secondary transfer could have occurred, and it requires that there be sufficient proximity to the original deposit, if there was one, that there would be sufficient proximity there in a sufficient way to transport it onto the boat.
Now, the evidence that Vass gives puts her away from the scene of Cleanlift, for example, and the way in which the matter was closed by the learned prosecutor at that stage was to give examples that I think will be abandoned, but to give examples that could not possibly withstand analysis in terms of the ability to create a secondary transfer.
So, what we say is this – and my time is running out at the moment – what we say is, this raises a significant question of law of the fairness with which the trial was conducted. If somebody says, but Mr Gunson could have asked for an adjournment, that is totally beside the point. When a trial is on its way, there is a jury – what sort of adjournment? I have had the experience of looking for experts, as would other people. This takes time, and it took a lot of time.
So, in my respectful submission, we would urge the Court to say that Justice Estcourt was correct in his analysis of both the evidence and the law. And, that that having been the case, Justice Wood was wrong. And we say Justice Wood was wrong, as was Justice Pearce in the findings that they made and the way that they made them. In reply, I might have time to go through a number of things demonstrating why.
GLEESON J: Mr Richter, is it not just a matter of difference of evaluation between the majority judges and Justice Estcourt as to what was possible to have been done by the defence with the exercise of reasonable diligence to obtain evidence of the kind that Mr Jones now gives?
MR RICHTER: No, your Honour because if your Honour looks at the evidence – or rather the utterances of Justice Wood for example, it does not stand up to anything other than assumptions that there might have been a possibility. Mr Gunson is dead at that stage, of course, he cannot give evidence, but we do not need his evidence to know that he had no reason to look for material relating to secondary transfers ‑ no reason at all ‑ prior to the trial commencing.
The trial is then in session. Well, what do we do? Do we send the jury away and adjourn the jury ‑ for goodness knows how long ‑ until someone can find an expert who can attest to the conditions necessary to allow secondary transfer to occur?
Mr Gunson did not think it was necessary in any event, simply
because he got the answers from Vass saying that she was nowhere near enough to allow for a secondary transfer to take place. And those answers were given. And one would argue or, rather, the prosecutor might have argued, the Director may argue, but look, there could have been XYZ, but the fact is we were never given a scenario by the prosecution that would enable it to stand up. Now, I know my time is up but, as I say ‑ ‑ ‑
GAGELER J: Mr Richter, please complete the submission you were just making.
MR RICHTER: Yes, your Honour. The submission that I am making is this: Mr Gunson is at a time when he knows that Vass will be denying being anywhere near a spot that would constitute what is sufficient evidence to allow for some secondary transfer, and that being the case, it is a wrong criticism of counsel for having been told after the evidence is given, do you want an adjournment? That is after Grosser’s evidence is given, do you want an adjournment to consider that, and he says no, because he cross‑examines on the basis of the Vass evidence. The Vass evidence needs to be converted from her no to a yes, in other words, in order to allow the secondary transfer to take place.
GAGELER J: Thank you, Mr Richter. Mr Coates. Mr Coates, we cannot hear you at all – or I cannot hear you at all.
MR COATES: Sorry, I forgot to press the button. Can you hear me now?
GAGELER J: Now I can hear you. You need to start again.
MR COATES: Sorry. Thank you. It is the Crown’s or the respondent’s position that special leave should be refused. There is no question of law involved. The majority’s decision applied this Court’s decisions in Van Beelen v The Queen and Mickelberg v The Queen. The majority’s judgment found not only was the evidence of Mr Jones not fresh, but it was not compelling and there had been no miscarriage of justice. In particular, the majority found that the evidence of Mr Jones in the context of the evidence at trial did not support the hypothesis of a direct deposit of Ms Vass’ DNA having occurred during the time of the murder. Further, Mr Jones’ evidence did not contradict Mr Grosser’s evidence at trial in any material way. Most importantly ‑ ‑ ‑
STEWARD J: Mr Coates – I am sorry – do you agree with the summary of differences between Mr Grosser and Mr Jones in Justice Estcourt’s judgment at paragraph 437 and 438, where his Honour says:
the principle difference . . . was that Mr Grosser would not be drawn on an assessment of the likelihood between primary and secondary transfer, whereas Mr Jones was prepared to say that although it depended on the surrounding circumstances, the nature of the DNA profile was not typical of secondary transfer.
Is that a reasonable assessment of the difference between the two experts?
MR COATES: My submission is that the summary by Justice Wood and Justice Pearce is that both Mr Jones and Mr Grosser – Mr Grosser said that secondary transfer was rare; he had never knowingly seen secondary transfer by foot; that he could not say what was the most likely because that depended on other evidence, where Mr Jones’s evidence was that secondary transfer does occur by foot traffic – in fact, studies have shown that 95 per cent of DNA is transferred by shoe on nonporous surfaces – that it would take a specific set of circumstances to do so; that he did not disagree with anything that Mr Grosser had said at trial; that he could not say what was most likely – like Mr Grosser, it would depend on the other evidence – and, unlike Mr Grosser, he said he could not say anything about the age of the DNA; that the DNA was most likely deposited within two days of it being found – the significance of that being is that the murder took place on the night of 25 and 26 January.
It was moved to Constitution Dock the following – on the 26th, then on the 27th moved to . . . . . So, as the majority found, the Crown’s contention at trial was that Ms Vass’ DNA either got on there by secondary transfer or by direct deposit, but after the time of the murder. So in fact ‑ ‑ ‑
STEWARD J: Mr Coates, what about Mr Jones ‑ ‑ ‑
MR COATES: Mr Jones’ evidence actually supported the Crown case that the DNA got there after the murder.
STEWARD J: Mr Coates, what about the statement reproduced at paragraph 438 of Mr Jones’ evidence where he says that:
there is no evidence to support the hypothesis that the DNA detected in sample 20 was the result of a secondary transfer event caused through foot traffic on the deck of ‘Four Winds’.
Is that a difference between Mr Grosser and Mr Jones?
MR COATES: No, because as Justice Wood and Justice Pearce stated in their judgments, under cross‑examination Mr Jones qualified that – Mr Jones came to that conclusion because there were no other – Ms Vass’ DNA was not found elsewhere on the boat, and the logic being if it had been on the shoe, it may have been found elsewhere. But under cross‑examination, Mr Jones concluded that, whether it was direct deposit or secondary transfer, given where it was found right, in the walkway, either way he would have expected that the DNA of Ms Vass would have been found elsewhere on the vessel.
So, he resiled from that and further he said, but in any event. you would only have been able to find it elsewhere in the vessel if the DNA had been blood. It may very have been just coincidence that the DNA was found where the luminol was and that could have been completely different to the DNA. So, Mr Jones completely resiled from that, which is in Justice Pearce and Justice Wood’s judgment.
Also, the majority also said it did not – well, first of all they said that it supported the Crown’s contention that the DNA was deposited after the murder and, secondly, it did not attack the other evidence which showed it was extremely unlikely that Ms Vass and others were there at a time committing some sort of crime on the vessel, and that the person who sabotaged the vessel had to have intimate knowledge of the vessel.
There were a number of factors that were outlined in the judgements of Justice Pearce and Justice Wood, but they include the use of the tender from the Four Winds, the very tender. Secondly, it would be unlikely that they would have gone out past other yachts to the Four Winds. Thirdly, Ms Vass had no connection with the Four Winds or with the deceased, Mr Chappell. Fourthly, and most importantly, in sabotaging the vessel there was an unused seacock that was turned on to allow water in. That was behind wood panelling, under pipes, and the evidence at trial is only someone not only familiar with yachting but had to be familiar with that boat needed to turn it on.
In addition, another seacock into the toilet was turned on. The alarm system and bilge system were disengaged, showing a knowledge of the electrical systems, and the winches were used. So, what the majority found is when you combine all that evidence and the evidence of Mr Jones, and in particular the evidence that the DNA was unlikely to be much more than two days old, it was not compelling to the issue that was being advanced by the accused at trial, the appellant at trial.
Then looking further, looking at the – for a miscarriage of justice, looking at the other evidence that implicated the accused, they found it was a strong compelling case and that there was no miscarriage of justice. So, not only did they find the evidence was not fresh, even if it was fresh it was not compelling and there was not a miscarriage of justice.
GAGELER J: Mr Coates, on the question of whether the evidence was fresh, what do you say about the sequence of events at the trial to which we were taken by Mr Richter?
MR COATES: Well, the sequence of events is not true. The evidence did not come out in re‑examination of Mr Grosser. The evidence came out in examination in‑chief. It was objected to. The judge immediately offered Mr Gunson an adjourned to consider it. The majority found that there was no evidence put before them of what the defence knew beforehand, what they had consulted.
They found that the opinion could have been got relatively quickly, that there was no explanation of why no opinion was sought. Indeed, there was no explanation that they did not even have an opinion, and clearly, they said that there were good reasons why the evidence would – such evidence would not be led, forensic reasons like, one, losing your last right of address and, two, a significant amount of Mr Jones’ evidence is favourable to the Crown. As I said, there has been absolutely no evidence put before the Court of why any steps – what steps were taken and if steps were not taken, why they were not taken.
In my submission, the majority used the correct test of what could be, with reasonable diligence, obtained at trial, and they found that the evidence could have been obtained with reasonable diligence at trial but, in any event, there has been no explanation of why it was not. Those are my submissions.
GAGELER J: Thank you, Mr Coates. Mr Richter.
MR RICHTER: If the Court pleases, I do have to walk back to the note. I said that Grosser’s evidence about a secondary transfer came in re‑examination, it was not in re‑examination, but if your Honour was to examine the evidence of Mr Grosser, it was something that was led – and without notice, of course, by the learned prosecutor – it was led and left the situation in a position where, number one, of course there was no previous report, because that had never been given before. It had never been uttered or said that there would be that evidence, so that there was no need to prepare a supplementary report.
What I come back to, is this: my learned friend conflates the circumstantial case with the scientific case – with the DNA case, and he cannot, because the defence assumed that the circumstantial evidence is accepted as compelling in the absence of DNA evidence. The defence rests on a contested circumstantial evidence which the jury must have found against it and I will not categorise the cases as strong, but the real defence was Ms Vass was on the boat at the time and it was a primary deposit.
Now, as to that, I asked the learned prosecutor, I ask Justice Wood, I would have asked members of the jury, what is the specific scenario that you have in mind that would have allowed it to happen, a secondary transfer? And the fact is we do not know what the jury might or might not have done in order to say well, here are the scenarios. Because the only scenarios that it could act on were scenarios that did not allow for it, did not allow for the notion of the large quantity, and we know it is large, because it came from an email that was released after Mr Grosser gave his evidence. It was a large quantity and a precise quantity, a full profile, which was not discovered until later.
Now, my learned friend’s point in relation to the timing of the discovery is wrong. It does not allow for a proper assessment of times involved. I might add that the actual chronology is that the deposit was found at 1.40 am on the 30th. At 1.40 am.
So, if one is talking about two, three days, you still get to a situation where you do not know what the conditions were that might have caused it to deteriorate where the boat was. So, it is a simple proposition that we say there was a reversal of the burden of proof on the very question that raised doubt. The very question that raised doubt for the defence. That has not been rebutted, and I still ask the question of the prosecutor: give us an example of how it could have happened that it was a secondary deposit.
I did hear the buzzer – that was the three minutes. Good. I am used to lights. Actually, that is all I wanted to say, because my submission is that there was no wrong test applied. It was one thing for Justice Brett to say it is a matter of emphasis during the earlier hearing, it is quite another matter when we come to assess the matter. It is not a matter of just ambiguity or difference, it is a clear requirement for certain conditions to be met which were not met in order to allow an inference of a secondary transfer.
Nothing that the jury could do with this circumstantial evidence could shift that. So, it was – because of the legislation, of course, it has to be seen in the context of the way the trial was run. The way the trial was run left no option for the jury, because it was never given the material on which to dismiss the defence of a secondary transfer, which was my learned friend’s defence. So, I urge the Court to – thank you.
GAGELER J: Finish the sentence, Mr Richter.
MR RICHTER: I urge the Court to give the greatest consideration to Justice Estcourt’s judgment because he was the most experienced criminal trial . . . . . but, in my respectful submission, the judgment of the majority – and, in particular, Justice Wood – is subject to certain assumptions which, when one looks at the judgment in detail, and in particular – I will just give page references if it is of any assistance. Page references – I am sorry. No. They are there in the judgment, which indicate that certain assumptions
were made which were not false, but wrong, obviously, in my respectful submission.
GAGELER J: Thank you, Mr Richter. The Court will adjourn to consider the course it will take.
AT 10.17 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.22 AM:
GAGELER J: The principles applicable to the determination of a second appeal against conviction on the ground of fresh and compelling evidence have been established in a series of decisions of this Court, the most recent of which is Van Beelen v The Queen (2017) 262 CLR 565. We are not persuaded that there is sufficient prospect of demonstrating that the majority of the Court of Criminal Appeal erred in the application of those principles to warrant of special leave to appeal in this matter.
The application for special leave is refused.
The Court will now adjourn until 10.30 am.
AT 10.23 AM THE MATTER WAS CONCLUDED