She’s not off the hook yet

The decision yesterday to grant convicted murderer Susan Neill-Fraser leave for a fresh appeal to her 2010 conviction shows our justice system works. It does not mean she is innocent.

Susan Neill-Fraser

THE decision yesterday to grant convicted murderer Susan Neill-Fraser leave for a fresh appeal to her 2010 conviction shows our justice system works. It does not mean she is innocent.

In fact, Justice Michael Brett is very clear in his judgment that it would be “inappropriate and futile” for him to express any view about Neill-Fraser’s innocence — or her guilt. Instead, he said his task had only been to decide if any of the evidence that had been presented to him was “fresh and compelling”, in line with the 2015 law that allows convicted criminals to seek leave on those grounds for a second appeal.

JUSTICE BRETT’S FULL JUDGMENT

In his judgment — as read to the Supreme Court in Hobart from 4pm yesterday — Justice Brett reminded those in attendance of a number of aspects of the circumstantial case the Crown successfully argued against Neill-Fraser in 2010. They included that there was evidence her partner Bob Chappell had met with foul play during the afternoon or night of Australia Day 2009 on board their yacht moored at Sandy Bay. That there had been “motive and opportunity” for Neill-Fraser to kill Mr Chappell, and that Neill-Fraser had told a series of lies to police — “principally in relation to her whereabouts and movements on the night in question”. Justice Brett also acknowledged it was likely the guilty person used the yacht’s dinghy — and evidence suggested Neill-Fraser had used it that night, despite her denials. Finally, Justice Brett noted the evidence presented at trial that suggested the yacht had been tampered with during the night “by a person familiar with it”.

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However, Justice Brett went on to explain that the 2015 change to section 402A of the Criminal Code spells out that the Court of Criminal Appeal may hear a second appeal if a judge permits it “in respect of a single ground, which is that there is fresh and compelling evidence”. It would then be up to the Court of Appeal to determine if there had been a miscarriage of justice in the case, Justice Brett said.

And it is on this point that Justice Brett carefully explains his decision. He said the “fresh” evidence provided to him were two affidavits signed by Meghan Vass, a homeless teenager at the time of Mr Chappell’s disappearance whose DNA was found on the yacht. In the first of these affidavits, signed on April 27, 2017, Ms Vass says she was on Mr Chappell’s yacht on the night he disappeared. When she appeared before Justice Brett, however, Ms Vass claimed she had been coerced into signing the statement out of fear. But he notes Ms Vass had since signed another affidavit, on February 25 of this year, that contained “direct and detailed admissions” of her involvement in events aboard the yacht that night.

And so Justice Brett ruled “there can be no question that the evidence is fresh within the meaning (of the law)” — and “at a new trial, Ms Vass would either give evidence consistent with the representations, or inconsistent with them”.

As to whether this “fresh” evidence was also “compelling”, Justice Brett noted that in granting leave to appeal he was not required to determine if the evidence was credible — or if it provided a “trustworthy basis for fact-finding”. The only requirement, he said, was for him to be satisfied the evidence was substantial in support of Neill-Fraser’s bid to prove her claimed innocence. And on this matter, he believed it was — and so “because the requirements for a grant of leave are satisfied, I am required to grant the application”.

And so yesterday’s ruling is just another chapter in this long-running saga that clearly has a way to go yet.