Convicted killer Susan Neill-Fraser wins new appeal bid

It is the case that has transfixed the nation and now convicted killer Susan Neill-Fraser is going back to court after a landmark decision to allow her a second appeal.

SUSAN Neill-Fraser has been given a second chance to appeal against her murder conviction.

Delivering his judgment in the Supreme Court in Hobart yesterday, Justice Michael Brett said Neill-Fraser had a reasonable case to present to the Court of Criminal Appeal and it was in the interests of justice that she be given a second appeal.

Neill-Fraser, now 65, is serving a 23-year jail sentence for murdering her partner Bob Chappell, 65, on board the couple’s yacht Four Winds on Australia Day 2009.

Neill-Fraser has always maintained her innocence.

The Court of Criminal Appeal in 2012 dismissed her first appeal against her conviction, and the High Court refused her application for leave to appeal.

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A right-to-appeal law introduced in 2015 gave Neill-Fraser a chance to apply for a last-ditch appeal, which she has now successfully done.

After a series of hearings held over the past two years, Justice Brett said it was his role to determine whether Neill-Fraser had a reasonable case to present to the appeal court, on the grounds that there was “fresh and compelling” evidence.

Sue Neill-Fraser's daughters Sarah Bowles and Emma Mills arrive at Hobart Supreme Court on Thursday afternoon. Picture: PATRICK GEE

“Leave [to appeal] must be granted if I am satisfied that the applicant has a reasonable case to present to the Court of Criminal Appeal that there is fresh and compelling evidence, and I am satisfied that it is in the interests of justice for leave to be granted,” Justice Brett said. “I am not concerned on this application with the question of whether, after taking into account the asserted fresh and compelling evidence, there has been a substantial miscarriage of justice.”

THE CASE

The case against Neill-Fraser was entirely circumstantial.

“The applicant now presents a number of pieces of evidence relevant to specific ‘strands’ of the prosecution case, and also relevant to what the applicant claims are reasonable hypotheses consistent with innocence,” Justice Brett said yesterday.

“It is impossible to assess the probative value of each piece of evidence without considering its effect in combination with all of the other evidence.”

Justice Brett said the prosecution case at trial was that Neill-Fraser had either killed Mr Chappell while on the yacht with him in the afternoon and returned later to dispose of the body, or killed him when she returned to the yacht that night and then disposed of the body.

“On either scenario, the prosecution contended that he had died in the saloon of the vessel and that the applicant had used one of the yacht’s winches to lift the body onto the deck,” Justice Brett said.

“She had then placed the body into the dinghy and taken the body to deep water for a ‘sea burial’.”

Justice Brett said the defence argued at trial that the evidence “was consistent with another person or persons travelling to the yacht by dinghy or small boat during the course of the night, and then killing Mr Chappell and disposing his body”.

DNA EVIDENCE

Much of the evidence Neill-Fraser presented during her application to appeal related to DNA evidence found on the yacht that matched that of homeless girl Meaghan Vass, who was 15 at the time of Mr Chappell’s death.

At the trial, Ms Vass denied ever having been aboard the yacht. “It was fundamental to defence counsel’s argument [at trial] that the DNA had been deposited directly by Ms Vass and had not been deposited by way of secondary transfer,” Justice Brett said.

He said the only expert to give evidence about secondary DNA transfer was forensic scientist Carl Grosser from Forensic Science Services Tasmania.

“It is a fair assessment of Mr Grosser’s evidence that he was not prepared to express an opinion one way or the other as to whether it was more likely that the deposit had taken place as a result of primary or secondary transfer,” Justice Brett said.

Evidence was heard during the appeal application from Victoria Police forensic scientist Maxwell Jones, who said it was possible the DNA was deposited by way of secondary transfer, for example on the bottom of a shoe, but that it was the sort of profile he would expect from a primary deposit.

He also said if it was a secondary transfer it would have come from “a significant amount of biological substance”.

MEAGHAN VASS

Ms Vass also gave evidence during the appeal application.

Neill-Fraser’s lawyers tendered a document that purported to be a statutory declaration by Ms Vass, signed on April 27, 2017, that asserted Ms Vass was on the Four Winds on Australia Day 2009 with people she would not name, was scared and would not provide any further details. She also said “the lady Sue Neill-Fraser was not on the yacht”.

When she gave evidence before Justice Brett, Ms Vass said she signed the statutory declaration but denied it was true.

“Her evidence was to the effect that they had been coerced into signing the document out of fear,” Justice Brett said.

“In evidence before me, Ms Vass denied ever having been on the Four Winds on Australia Day or at any other time, and could provide no explanation as to how DNA matching hers was found on the yacht.”

Justice Brett also received an affidavit from Ms Vass shortly before he was to hand down his decision.

Neill-Fraser applied to reopen her case for the appeal after it was revealed on a 60 Minutes TV program that aired in other states on March 10 that Ms Vass had made an affidavit last month concerning the events on the Four Winds on the night of January 26, 2009. Justice Brett received the affidavit, dated February 25.

“The affidavit contains direct and detailed admissions of Ms Vass’s involvement in the events aboard the Four Winds on the relevant night,” he said.

“In particular Ms Vass states that she was present on the yacht with two identified male companions. She witnessed at least one of the males assault Mr Chappell. She recalls seeing a lot of blood. The affidavit does not directly address what became of Mr Chappell. Ms Vass claims that she cannot recall leaving the yacht or what happened after the assault.”

Tasmania Police issued a statement after the judgment was delivered saying it “fully supports the legal process and remains confident in the integrity and thoroughness of the original and subsequent investigation teams”.

“Police reinterviewed Ms Vass earlier this month after 60 Minutes’ promotional material suggested a new version of events,” Assistant Commissioner Richard Cowling said. “Further evidence associated with that interview will be provided to the Director of Public Prosecutions.”

JUSTICE BRETT’S CONCLUSIONS

“In this case, I am satisfied that the applicant has a reasonable case to present to the court in support of the ground of appeal, and that it is in the interests of justice for leave to be granted,” Justice Brett said.

“The fresh and compelling evidence to which this decision refers is the evidence of the out-of-court representations of Ms Vass. Insofar as it has been submitted that the evidence is not reliable, I am satisfied that it would be reasonably open to the Court of Criminal Appeal to accept such evidence as credible and providing a trustworthy basis for fact finding.

“I reiterate that I am not making a positive determination to that effect. However, I am satisfied that there is nothing about this evidence that would enable me to form a positive conclusion that the Court of Criminal Appeal would necessarily reject the evidence as unreliable.”

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