By CLA President Dr Kristine Klugman and CEO Bill Rowlings
The High Court – judges Stephen Gageler, Simon Steward and Jacqueline Gleeson – has refused Sue Neill-Fraser leave-to-appeal on Friday 12 August 2022 after a 45-minute hearing, and five minutes of conferring between themselves.
The judges said that the principles applying to a second appeal based on fresh evidence have been established by the High Court, quoting the Van Beelen case of 2017 (Note 1).
They were not persuaded that there were sufficient prospects of demonstrating that the majority 2-1 judges in the Tasmanian Court of Criminal Appeal erred in applying the Van Beelen principles in the SNF appeal in 2021.
Attending the leave application in the High Court, Civil Liberties Australia (CLA) was not persuaded that the judges, with all three of them winning their spurs mainly in administrative, commercial and constitutional law, were equally as skilled and experienced in analysing and comparing the evidence of forensic science experts and how the burden of proof might be – inadvertently perhaps – reversed in a criminal case.
Where’s a good and experienced criminal law expert when you need one? In the High Court, they are in short supply.
“Generally, the entire High Court process and hearing was a farce of the first order,” CLA CEO Bill Rowlings said. “It reinforces how out-of-date the High Court seems to outsiders to be, in specific legal expertise in criminal cases, in modern technology and in keeping up to date with cultural and societal change.
“If this is justice in Australia, it is poorly represented by its top court and the cast of ancillary legal actors who played out their roles in this case. This special leave to appeal hearing was justice as seen on a tiny TV set, with the stage appearing as if at the wrong end of a telescope.
“If the case represents the high point of Australia’s public adherence to open and transparent adherence to the rule of law, it’s not clear whether what’s required is the write-up of a legal decision, or the critique of an abysmal theatrical flop,” he said.
CLA President Dr Kristine Klugman said the High Court video hearing was both a legal disappointment and an embarrassment to the nation.
“In five minutes, the three judges further destroyed a life already put on hold by a wrongful conviction. They condemned Sue to 10 more years in jail to see out her remaining sentence of 23 years, which was ‘magnanimously’ reduced on her first appeal from the inexplicable 26 years bestowed by the man who did not apply the state’s sentencing procedures properly, the now-Tasmanian head judge, Alan Blow.
“All this occurred during a ‘public’ hearing process that did not meet basic standards of being open, accessible, and able to be heard and seen properly, and being just plain competently presented. The High Court fails Technology 1.
“Sue’s option now? Seek parole for which she becomes eligible on 20 August 2022 and, if granted, then possibly be hassled for the next decade at any and all hours of the day or night by the very police whose poor investigation and practices CLA believes wrongly allowed Tasmania to put her in jail in the first place,” Dr Klugman said.
“Her other options are to push for a full inquiry into the state’s handling of her case, or to have another book or TV series or play or song or media revelation come to her aid, finally convincing the authorities they have got it wrong.”
There have already been three books, numerous TV documentaries and a six-part ‘crime’ series production (running again on Channel 7), a play, songs and countless articles and e-media coverage during her first 13 years in jail. The pace of public criticism is unlikely to lessen, because the injustice to her is so profound, and deepens as time, and her life, goes by.
(In the internationally-known, infamous case of the “Dingo took my baby,” former Tasmanian resident Lindy Chamberlain served just three years in jail because of forensic science “evidence” that was wrong. The High Court had also rejected Lindy’s appeal, and she was exonerated only because a piece of the child’s clothing was discovered. Baby Azaria, whose body was never found at Uluru (Ayers Rock) in the NT, would have turned 42 in the week of the High Court’s refusal of the SNF appeal).
If SNF chooses to seek parole, CLA points out that police everywhere have the power to treat a parolee abysmally, like waking them at all hours of the night as frequently as police deem necessary. TasPol has always maximised its powers in relation to anything to do with the SNF case.
As for the High Court, it is at least a decade behind the times in running video conferencing (and in other ways, which we will explore in future articles).
Why were the three judges not physically in the court where they should have been if the High Court is as incompetent with providing modern technology as it appears to be (see Note 2). The entire hearing gave the appearance of being fractured, disjointed, unsatisfactory and unprofessional.
“As ‘witnesses’ to justice, we were ordered to stand and bow to three dwarf-looking, robed figures running along the top quarter of one-only, about 50cm TV set halfway up the side wall of a court room the size of a suburban church. Their eminences appeared to us to be literally about 5cm high, if that,” Dr Klugman said.
“This was ‘justice’ delivered Post-it note size. That’s the small Post-it note, not the bigger one,” she said.
The High Court first, and last, upgraded its public videoing system in 2013. That’s generations ago in video streaming terms (see media release on their website).
One day, someone will mention high-quality Skype and Zoom and Teams systems to the Higherarchy. Maybe in another decade they’ll realise that a TV set needs to be big to cater for a potential audience of 50 or so people in the gallery.
Eventually, the High Court may realise that you can buy or hire a big TV on rollers, and wheel it into a court when needed, only, to keep sacrosanct their cherished wood panelled look.
Technology associated with the High Court has gone backwards, provable on the evidence of this one appellant. When SNF’s earlier case to the High Court for leave to appeal was heard in 2012, her Hobart supporters could watch through the federal court facilities in Hobart.
In 2022, the SNF Supporters Group, who have attended every single court appearance of hers for 13 years, were not able to watch these 2022 High Court proceedings. The High Court Registry would not even entertain the idea of making a video stream available to a court or other Hobart location, supporters report.
Appeal opens with barrister unaware
The 12 August 2022 appeal opened with SNF’s barrister Robert Richter, seated at his Melbourne desk, unaware he was “on”.
When that was sorted out, Richter tried to convince the three judges that in 2009 the then-Tasmanian DPP, Tim Ellis, had forced SNF’s barrister, the now-dead David Gunson SC, to counter a reversal of the burden of proof, which formally and normally lies on the Crown. Ellis had to prove SNF guilty: he hadn’t, Richter claimed.
When the presence of a DNA sample was revealed to the original trial eight days after the trial began (despite being known to the Crown earlier), it was claimed by the prosecutor Ellis to have arrived on the yacht Four Winds by “secondary transfer”, perhaps on the shoe of a police officer.
Ellis, Richter claimed, should have spelled out one, two or three scenarios in detail that would have put the DNA on the yacht. He failed to make out even one scenario precisely, Richter claimed, instead simply saying the DNA sample might have arrived on a police shoe.
Richter said that the owner of the DNA, Meaghan Vass, denied being at Sandy Bay where the murder of Bob Chappell happened 300 metres offshore on the night of Australia Day 2009. She denied being at the Hobart town centre’s Constitution Dock where the yacht was briefly tied alongside, and she denied being at Cleanlift Marine at suburban Goodwood where the yacht was stored for some time.
So how, and when, and where did Ellis’s mucky-shoed police officer (or officers) get the DNA on their shoe, Richter asked? It was Ellis’s duty to prove the case completely by providing a realistic scenario that would satisfy the jury’s test of “beyond reasonable doubt”, Richter argued.
Headless barrister pops up on screen
The current Tasmanian state barrister, DPP Daryl Coates SC, was literally a headless shape only (Note 3) under the High Court’s video “expertise”. He denied the Crown had reversed the burden of proof. He claimed that the two forensic scientists, Grosser as called by the Crown (Note 4) and Jones, called for the SNF team in her 2021 appeal, had both stated they could not give a percentage likelihood about how the DNA sample had arrived on the boat.
In other words, what were the chances the sample arrived there by primary transfer (eg, by vomit or other bodily discharge, in the place where it was found) or secondary transfer (walked aboard by shoe, for example). Which was the more likely? They couldn’t or wouldn’t say.
Just to put their ultra-cautious, non-comments in perspective, the DNA sample on the yacht was spread over the dimensions of a dinner plate or an A4 sheet of paper. There was no “track” Vass DNA found.
Vomit on deck during killing, or winching?
At various stages of statutory declarations made and withdrawn, and in videoed interviews, and in an appeal court, Vass had led people to believe she may have vomited on the deck of the yacht. This, it was suggested, had happened as Chappell was being killed by persons unknown (except maybe to Vass: she actually named names in court one day before retracting her evidence entirely the next day).
If she had vomited, it could have been when his body was being winched from below decks to up on deck, to be thrown overboard there and then, or slid into a dinghy for transfer and dumping in mid-Derwent. This was an SNF team speculation about the possible (in a case noted for speculatory claims, some given undue credence).
The DNA sample was not a minor smudge of very limited extent, like that from a cigarette butt. Obviously erroneously, we believed the huge sample area gave an unscientific impression to us, a mere lay TV audience in the Highest Courtroom, of being unlikely to be scuffled off a police shoe (or two or three or 30, into just the one concentrated location only).
But alas, Richter was unable to convince the three bureau-judge-crats to reverse their own thinking so that the Crown would have to make out a better criminal case for gumshoe transfer in a full High Court hearing, sometime down the track later this year, or next.
There will be no such full appeal hearing: a chance to un-reverse (as claimed by Richter) the burden of proof back on to a DPP is lost. Game, set and match to the Crown so far (Note 4 again, but see particularly Note 5).
Neill-Fraser remains in jail while the judges can continue to enjoy extra days at home (Note 3, again) rather than in company in court in Canberra.
Those like us, seeking to observe Australian justice in operation in open court saw it portrayed in postage stamp size on TV. Maybe that’s what Australian justice is: a photo verisimilitude on one side and sticky substance on the other, edged with perforations or half-holes.
There were tiny criminal-lite judges with no known (to us) particular forensic science expertise who held sway remotely on matters which turned on criminal law and controversial forensic science.
In between video interruptions both ways, the judges were haltingly addressed by barristers, one headless, before a standing/bowing audience admitted to Canberra’s No 2 Court without charge, into to the august presence of a little TV set. As another visitor said: “It feels rather silly bowing to a TV set”. Australia’s should not be expected to bow to anyone.
It appears to us to be not just symbolic that no “live” judges were present in the High Court that day. Maybe justice itself got delayed somewhere in the ether.
Note 1: Van Beelen is a South Australian case where the SA chief judge dissented from his two colleagues, and Van Beelen lost 2-1. Many eminent lawyers think the SA Court of Appeal and the High Court in 2017 got Van Beelen wrong: if so, how many appellants will suffer how many extra years in jail until someone in the High Court has a re-think?
It is a “theoretical” case, in that Van Beelen was long out of jail (he served 17 years and was out by 1990) when he sought to clear his name three decades on. Van Beelen is also mixed up with the Manock madness, where the state’s chief forensic scientist, Colin Manock, was not qualified to give the opinions and findings he reported to courts during 27 years of tenure.
By contrast, the SNF case is “live – she is still in jail – but is similarly bedevilled by different forensic science expert opinions among other problems, and by the relevant judges and lawyers knowing very little about yachts. The High Court itself was misled in 2012 in an earlier SNF leave to appeal bid because two High Court judges failed to understand that it is nonsense to claim one person alone could move winches from place to place on a large yacht (16.2m) in a very limited timeframe.
Note 2: Judges usually only work together in the High Court building in Canberra for 8-9 days a month for 10 months of the year. The court doesn’t sit in January or July. Judges don’t necessarily remain together at the court building in Canberra on the one-Friday-a-month customarily allocated to hearing special leave-for-appeal cases.
As they are so frequently “on screen”, the High Court should improve the video facilities for the public, for transparency and openness reasons, and to see the rule law operate publicly, as a matter of the greatest priority (like, hire a big TV set on rollers). It is our court, not that of the judges: some remedial legal education is called for.
Note 3: The High Court technicians had set up the video link to Hobart when Coates was seated. The moment he “got the call” (well, 30-40 seconds later maybe, when he found out he had the call), Coates stood up as if behind a lectern, whereupon his head disappeared for the next 20 minutes or so, during which he tried to counter Richter’s claims: all that was seen in miniature on screen was his torso.
Those of us watching Australian justice being acted out in the highest court realised that in this nation, justice is sometimes literally like a headless chook.
Note 4: What is now needed is a commission of inquiry into Tasmanian ‘justice’. The Sue Neill-Fraser case has clearly illustrated many problems in the island state’s systems.
Politicians with executive remain unwilling to press to right wrongs (damning papers lie unanswered and unrebutted in the Upper House). Judges appear to the lay person to be ignorant of relevant laws. Police, not well trained and supervised by interstate standards, say experts, are allowed to operate to their own peculiar systems and quality controls. There’s a prosecution system that leaves much to be desired, and frequently a lot to be corrected as well, because of mistakes and misstatement in court, and elsewhere.
As just one example of the disconnect between rhetoric and reality: the Forensic Science Service Tasmania is not (rpt NOT) an independent body. Its scientists work under (and get rum and rations from) the Department of Police, Fire and Emergency Management. The FSST itself and therefore the scientists are answerable to the head of that department, who is the Department Secretary…better known by his (her) other title, Commissioner of Police, Tasmania.
Note 5: Defence barristers may be rubbing their hands together with glee at this decision of a bench of three High Court judges in the SNF case. If a prosecutor can simply suggest that a DNA sample arrived where it was found by being transferred on the shoes of a police officer (or ambulance officer, morgue attendant, Deliveroo driver, take your pick), then a defence barrister may make precisely the same type of claim without needing to prove exactly how the transfer happened. The High Court has said that’s perfectly OK in a conviction…so it must work the same for someone defending a charge, or seeking to appeal a conviction. To help defence and appealing barristers out, here’s the reference: HCA special leave application (H1/2022, 12 August 2022).
Dr Kristine Klugman is President of Civil Liberties Australia (CLA). You can read about her here: https://en.wikipedia.org/wiki/Kristine_Klugman Bill Rowlings is CEO of CLA. You can read his background here: https://www.cla.asn.au/News/who-we-are/ (CLA Management Team).