Justice Brett’s judgment in Sue Neill-Fraser murder case appeal application

Read Justice Michael Brett’s full judgment in a landmark decision that will allow Susan Neill-Fraser to appeal her murder conviction for a second time.

Artists impression of the Sue Neill-Fraser trail in Hobart 05/02/2019.

Susan Neill-Fraser has won her application to appeal her murder conviction for a second time. This is Justice Michael Brett’s full judgment as read to the Hobart Supreme Court on March 21, 2019.

SUSAN BLYTH NEILL-FRASER v STATE OF TASMANIA

REASONS FOR JUDGMENT

1. 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.

Justice Michael Brett outside the Hobart Supreme Court. Picture: CHRIS KIDD

2. 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.

3. 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.

4. 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 reasonable doubt, the possibility that someone else was responsible for Mr Chappell’s disappearance. It was not seriously argued that he had not met with foul play.

5. On 6 March 2012, the Court of Criminal Appeal dismissed the applicant’s appeal against conviction: Neill-Fraser v Tasmania [2012] TASCCA 2. There were two grounds of appeal, one of which was that the conviction was unsafe and unsatisfactory. The applicant subsequently applied for leave to appeal to the High Court, but this application was refused.

6. The applicant has now applied for leave to lodge a second appeal against conviction, pursuant to s 402A of the Criminal Code. This section was inserted into the Code on 2 November 2015. It is a procedural provision and it is common ground that the Court has jurisdiction to entertain the application in respect of this case.

7. Under this provision, the Court of Criminal Appeal may hear a second appeal if a single judge grants leave for the convicted person to lodge that appeal. An appeal under the section is only permitted in respect of a single ground, which is that there is fresh and compelling evidence. If leave is granted, then the Court of Criminal Appeal may only uphold the appeal if satisfied that:

(a)there is fresh and compelling evidence, and

(b)after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice. Otherwise the Court is required to dismiss the appeal.

Legal principles affecting the application for leave

8. Section 402A(5) provides as follows:

“(5)On hearing the application of a convicted person for leave to appeal, the single judge or Court —

(a)must grant leave to appeal if satisfied that —

(i)the convicted person has a reasonable case to present to the Court in support of the ground of the appeal; and

(ii)it is in the interests of justice for the leave to be granted; or

(b)must refuse to grant leave to appeal if not so satisfied.”

9. This is the first case in which leave to appeal pursuant to this provision has been sought from this Court. Accordingly, there is no jurisprudence of this Court relating to the provision. However, the section is clearly modelled on South Australian legislation of a similar nature. This inference is available from a comparison of the provisions, as well as from the contents of the second reading speech relating to the amendment which introduced this provision into the Code. The section is also consistent with provisions introduced into the Code in 2008 allowing the Director of Public Prosecutions to apply to the Court of Criminal Appeal for an order for retrial of an acquitted person where there is fresh and compelling evidence upon which to base a further prosecution (see Ch XLIV of the Code).

10. A pertinent point of comparison between the South Australian and the Tasmanian legislation is the formulation of the test applicable in respect of the grant of leave to appeal. Section 159 of the Criminal Procedure Act 1921 (SA) (formerly s 353A of the Criminal Law Consolidation Act 1935 (SA) (the CLC Act)), provides that the Full Court may hear a second or subsequent appeal “if the court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal”. Such an appeal may only be brought “with the permission of the Full Court”. In Van Beelen v The Queen [2017] HCA 48, 349 ALR 578, the High Court, in a joint judgment, noted at [27] that the provision generally manifested “... an intention that finality yield in the face of fresh and compelling evidence which, when taken with the evidence at the trial, satisfies the Full Court that there has been a substantial miscarriage of justice”. The court commented that the purpose of the permission requirement was to deal with the “concern that a convicted person may bring successive, meritless applications” under this provision.

11. These comments are apposite to s 402A. Under that provision, the test for the grant of leave which is sought in this application is satisfaction that the convicted person has a reasonable case to present to the court in support of the ground of appeal, and it is in the interests of justice that leave be granted. In Van Beelen, the High Court concluded that the Full Court ought to have granted permission for the appeal to proceed because the evidence under consideration was fresh and compelling, and it was in the interests of justice that it be considered on appeal. The court noted that “Commonly, where fresh evidence is compelling, the interests of justice will favour considering it on appeal.” The court distinguished the question of whether it was in the interests of justice for the appeal to be heard from the determinative issue on the appeal if it is heard, that is, whether, after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice. In that case, the High Court determined that although it was in the interests of justice that the appeal be heard, the Full Court was correct to find that there had not been a substantial miscarriage of justice and, accordingly, dismissed the appeal.

12. The tension between the need to rectify a substantial miscarriage of justice upon the subsequent discovery of fresh and compelling evidence, and the desirability of the finality of litigation, is reflected in the requirement for leave. This tension and the practical objective of avoiding numerous unmeritorious appeals, as identified by the High Court in Van Beelen, are matters which should inform the interpretation of s 402A(5). In other words, the section ought be interpreted in a manner which gives that subsection, and the provision generally, an operation which is consistent with the purpose of the legislation. Accordingly, I accept the submission of the applicant that, in considering whether the applicant has a reasonable case to present to the Court of Criminal Appeal in support of the grant of appeal, I am only concerned with whether the proposed appeal has reasonable merit or is reasonably arguable. In particular, my primary concern is whether there is evidence which is reasonably arguable as fresh and compelling within the meaning of the provision. If there is a reasonable case that such evidence is available, then it is likely to be in the interests of justice for leave to be granted.

13. The Director argued that the difference in formulation between the Tasmanian and South Australian legislation means that I must also determine that the applicant has presented a reasonable case that, not only that there is fresh and compelling evidence, but also that such evidence establishes a substantial miscarriage of justice. As the High Court noted in Van Beelen, the test for a substantial miscarriage of justice is the Mickelberg test (Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259). That is “whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial”. This is a broader question than that of whether the evidence is compelling. Despite the differences between the formulation of the legislation in each State, I am not convinced that the Director’s submission is correct. The Tasmanian section permits an appeal “on the ground that there is fresh and compelling evidence”. The reasonable case which is required under subs (5) must be “in support of the ground of appeal”. The relevance of a substantial miscarriage of justice is that such a finding is a precondition of the grant of relief if the court finds that the ground is made out, because there is fresh and compelling evidence. Accordingly, what I am concerned with at the leave stage is whether there is a reasonable case to present to the Court in support of the claim that there is fresh and compelling evidence. In such a case, it is difficult to envisage circumstances in which a judge granting leave would determine that it is not in the interests of justice to grant leave to appeal. In the event that the Court of Criminal Appeal is satisfied that there is fresh and compelling evidence, the legislative scheme is that the ground of appeal will have been made out, and the question of whether or not, after taking into account that evidence there has been a substantial miscarriage of justice, is a question which only arises for the consideration of the Court of Criminal Appeal at that point. It follows that that question is not relevant to the application for leave to appeal. As the High Court said in Van Beelen at [31], I must take care not to conflate “the interests of justice with the determinative issue in the appeal”.

14. It follows that leave 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. 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.

Fresh and compelling evidence

15. Although the applicant has framed her application by reference to a number of discrete grounds, as has already been noted, there is, in fact, only one permitted ground of appeal. The first part of my task is to determine whether the applicant has a reasonable case to present to the Court of Criminal Appeal in support of that single ground. This requires consideration of the evidence which the applicant asserts is fresh and compelling.

16. These terms are defined in s 402A(10) as follows:

“(10)Evidence relating to the serious crime of which a convicted person was convicted —

(a)is fresh evidence if —

(i)it was not adduced at the trial of the convicted person; and

(ii)it could not, even with the exercise of reasonable diligence, have been adduced at that trial; and

(b)is compelling evidence if —

(i)it is reliable; and

(ii)it is substantial; and

(iii)in the context of the issues in dispute at the trial of the convicted person, it is highly probative of the case for the convicted person.”

17. In Van Beelen, the High Court explained the meaning of the criteria relevant to the definition of compelling evidence, as defined in s 353A of the CLC Act. The definition in that legislation is identical to the Tasmanian legislation except that in respect of par (b)(iii), the criterion is expressed as “it is highly probative in the context of the issues in dispute at the trial of the offence”. In other words, the requirement for it to be highly probative in the context of the issues does not require it to be highly probative of the case of the convicted person, as is required under the Tasmanian legislation. I do not think that this difference will be a matter of significance in this case.

18. The High Court stated as follows:

“[28]Nothing in the scheme of the CLCA or the extrinsic material (South Australia, Legislative Council, Parliamentary Debates (Hansard), 19 February 2013 at 3165) provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding R v Keogh (No 2) (2014) 121 SASR 307 at 337 [105]; R v Drummond (No 2) [2015] SASCFC 82 at [325] per Blue J. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.”

19. These comments apply to the Tasmanian legislation. However, a further comment that I would make concerning the assessment in this case of whether the evidence is compelling, particularly in respect of its probative value in the context of the issues in dispute at the trial, is that each piece of evidence asserted as such must be assessed independently, but its probative value may be informed by its effect when considered together with other evidence, including evidence adduced at trial, and other evidence subsequently put forward as fresh and compelling evidence. This is certainly the submission of the applicant and I think this must be correct. The case against the applicant at trial 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. 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.

Meaghan Vass

20. It is uncontroversial on this application that the evidence at trial strongly supported an inference that Mr Chappell met with foul play on the Four Winds some time during the night of 26 January 2009. As already noted, he was last seen by a person on shore at Marieville Esplanade between 8.30am and 9.25am on 26 January 2009. Evidence established that the applicant had travelled to the Four Winds by dinghy at about 2pm in the afternoon, and, according to her, she left Mr Chappell aboard the yacht some time in the afternoon. The applicant’s evidence was to the effect that Mr Chappell had wanted to stay on the yacht for the night because he wanted to complete some work. Peter Lorraine gave evidence that at about 5pm he saw an elderly man working on the back of a yacht which is likely to be the Four Winds. The description matched Mr Chappell. There was no evidence presented at the trial of any further sighting of Mr Chappell aboard the yacht.

21. A reasonable and uncontroversial inference is available that Mr Chappell met with foul play aboard the yacht after the sighting reported by Mr Lorraine. On the basis of the applicant’s evidence, Mr Chappell did not have a dinghy available to him after she left the yacht during the afternoon. She had used it to return to the shore and had tied it up at the nearby yacht club. The Four Winds was anchored some distance from the shore. The only means of access to it was by boat.

22. The prosecution contention at trial was that the applicant had used the Four Winds dinghy to return to the yacht during the course of the night. The prosecution theory was that she had either killed Mr Chappell before leaving the yacht during the course of the afternoon, which would have been after the sighting by Mr Lorraine, and returned in order to dispose of the body, or killed him after her return 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. She had then placed the body into the dinghy and taken the body to deep water for a “sea burial”. It was not suggested that she had simply disposed of the body over the side of the yacht, and this possibility was effectively excluded by evidence of an extensive and unsuccessful search of the surrounding seabed.

23. The defence at trial did not concede that the prosecution had proved that Mr Chappell had met with foul play, had disappeared from the yacht, or even that he was dead. However, there was no serious attempt to suggest any reasonable hypothesis explaining the circumstances, including his disappearance and the presence of his blood on the boat, other than that the evidence was reasonably consistent with Mr Chappell having met with foul play from someone other than the applicant. The defence contended 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 of his body.

24. The defence had a number of possible theories about the type of person who might have done this. They included the suggestion that perhaps smugglers had hidden drugs aboard the yacht and had travelled to the yacht that night to retrieve them. A further hypothesis was that a person or persons intent on criminal activity had travelled by boat to the Four Winds in order to commit burglary. Evidence which was relevant to this theory concerned the potential involvement of a 15-year-old homeless girl named Meaghan Vass.

The DNA evidence

25. During the course of forensic testing of the yacht, a swab sample was taken from a luminol positive area of the deck. The swab revealed the presence of DNA which matched, with very high probability, the DNA of Ms Vass. Ms Vass gave evidence at the trial. She denied having been aboard the Four Winds at any time, including on Australia Day 2009, or having been at Marieville Esplanade at that time. She could not explain the presence of her DNA aboard the yacht.

26. The DNA sample was taken at 1.40am on 30 January 2009 from the starboard walkway of the deck. It was located in an area in which it would be expected that there would be considerable pedestrian traffic by anybody boarding the yacht for any purpose. This included police and forensic investigators after police boarded the yacht on 27 January.

27. The yacht was taken to Constitution Dock on 27 January. On 28 January, it was moved by water to a fenced yard at Goodwood. The evidence established that the yacht was secure while it was at Constitution Dock. There was some question about the extent of its security after it arrived at Goodwood. However, there was evidence that, prior to the time at which the DNA sample was taken, some 21 people, including workers, investigators, firemen and family members, had had lawful access to the yacht. It was a reasonable inference that all, or at least most, of these people had traversed the relevant area more than once.

28. At trial, an issue arose as to the probative effect of the location of the DNA sample matching Ms Vass. In his closing address to the jury, senior counsel for the defence argued that the jury should accept that the DNA sample had been deposited by Ms Vass directly onto the deck of the yacht, and that it was strong evidence that she had been aboard the yacht at the time of its deposit. He argued that it was a reasonable conclusion that she was there “up to no good and more likely was there with some other person or persons”. T1450, lines 30-32. He argued that the available conclusion was that they had boarded the yacht on the night in question for the purpose of theft, and that this provided a reasonable hypothesis explaining the disappearance of Mr Chappell. Defence counsel argued that the jury should reject Ms Vass’s direct evidence that she had not been aboard the yacht then or at any other time.

29. It was fundamental to defence counsel’s argument that the DNA had been deposited directly by Ms Vass and had not been deposited by way of secondary transfer. Senior counsel for the prosecution argued that the presence of the DNA on the deck was a “red herring”. He argued that the DNA could have come aboard the yacht by way of secondary transfer. In particular Mr Ellis SC argued:

“But it could have been put there at any time before the DNA swab was taken by anyone who had acquired some trace on their footwear at any place and then maybe got in the car, driven down and got out and onto the boat and transferred it. All those things are logically possible, all things go to explain this finding ...”.

30. It is important to observe that the suggestion by the prosecutor that the presence of the DNA could be explained by secondary transfer was only one element of his argument. This submission was directed to the more fundamental argument that the jury could exclude the reasonable possibility that Ms Vass had murdered Mr Chappell. A little further on in his submission Mr Ellis said:

“But where does that leave us? Where did that red herring take us? Why was that girl pursued? Why was she bullied and argued with so fiercely? Was it because it was wanted for you to seriously entertain a reasonable doubt that she’s responsible for this killing? That she, a complete stranger to it all, a sixteen year old homeless girl, has gone down to Marieville Esplanade untied, as it happens, the very dinghy, the very dinghy, which belongs to Four Winds, even though it isn’t marked as such, there’s no Four Winds dinghy, taken that very dinghy to Four Winds by coincidence, committed an atrocious crime for no reason, taken the body out somewhere in order to cover up that crime and come back. Well that’s a long bow ...”.

31. The primary issue to which the evidence of the DNA sample is relevant, therefore, was whether there was a reasonable possibility that Ms Vass, despite her denials, had been on board the yacht, either by herself or with others, on the night of 26 January 2009. Evidence which addressed alternative explanations for the presence of her DNA on the yacht was evidence which affected the assessment of the probability of the existence of this fact. One alternative explanation was that the evidence had been deposited directly but at a time other than at the time of Mr Chappell’s disappearance, for example, after the yacht had been moved to Goodwood. The further alternative explanation was that the DNA had been deposited by secondary transfer.

32. The only expert evidence concerning secondary transfer of DNA at the trial was provided by Carl Grosser, a forensic scientist in the employ of FSST. Mr Grosser’s evidence was, in essence, that secondary transfer was a possible explanation for the presence of the DNA on the yacht. In cross-examination, he was pressed on the degree of probability in respect of this question. It is 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. He clearly said that this depended on the surrounding circumstances, and without a knowledge of those circumstances, it would be impossible to speculate. In respect of a suggestion that the deposit had been transferred onto the yacht on the bottom of someone’s shoe, Mr Grosser said that he had not seen or experienced such a scenario before.

33. Senior Counsel for the applicant on the hearing before me made the point that in an email provided to the defence late in the trial, Mr Grosser had also expressed the view that there was a relatively large amount of DNA present which was more likely to have come from bodily fluids, blood, saliva, than a simple contact touching event. The point is made that this evidence was not disclosed to the defence prior to the trial. The email was not before the jury. However, Mr Grosser made no secret in his evidence of the fact that he considered there to be a large amount of DNA. The only real significance of the amount of DNA was its inconsistency with transfer by way of contact touching, and the factual improbability of DNA in that quantity being brought onto the yacht on the bottom of someone’s shoe. The contact touching scenario had little relevance to this issue. The primary issue was whether the substance containing the DNA had been deposited by Ms Vass directly, or whether that substance had been brought onto the yacht by someone else.

34. On this application, the applicant presented evidence from Maxwell Jones. Mr Jones is a forensic scientist employed by Victoria Police. He would seem to have similar expertise to that of Mr Grosser. In 2014, he was asked by the applicant to review the evidence relating to the DNA sample. Mr Jones’ evidence before me included an expression of the following opinions:

(a)Test results, in particular, an electropherogram support the proposition that the profile matching the DNA of Ms Vass has come from a good or strong source of DNA.

(b)This is not consistent with the touch scenario, for example, a momentary touch from a hand.

(c)The test results indicate “a greater quantity of biological material in the sample”. This supports the proposition that the sample was taken from a “good source of biological material”.

(d)In addition to the quantity of material, it would be expected that the biological material would be something which could be classed as material which is likely to provide a strong DNA profile, for example blood, saliva, semen or nasal secretion.

(e)Mr Jones was taken directly to the proposition that the mechanism of the deposit of DNA was by way of secondary transfer, for example, on the bottom of a shoe. His response was that it was possible that the DNA was deposited this way, but the probability of it having occurred depended on many variables, which he discussed in some detail. However, he completed his answer to the question by saying:

“... it’s very hard to imagine that would occur to the extent that would result in a DNA profile like the one which the Forensic Science Service Tasmania produced from that sample, being a strong DNA profile.”

(f)Mr Jones also observed that in view of the transfer scenario, if the material was blood, then it might have been expected that one would see the material in other places on the yacht. However this would not necessarily be the case in respect of other body fluids, for example saliva.

(g)A proposition was put to Mr Jones in evidence-in-chief to the effect that having reviewed the electropherogram he could now say on the basis of his expertise that he “would expect this to be a primary deposit of some sort of biological fluid”. His answer was as follows:

I don’t think it’s fair to say I would expect it to be. I said without knowing anything, if I saw the profile, I would – it’s the sort of profile you would obtain from a primary deposit, or if it was a – if I was to contemplate a secondary transfer scenario, I would be contemplating the transfer of a significant amount of biological substance, of biological fluid of some type. I couldn’t rule that possibility out also, but it’s certainly not the touch scenario. I’d certainly rule that out quite confidently.”

(h)Finally, Mr Jones agreed in cross-examination that DNA in the location in which it was found, and having regard to the conditions to which it would have been subject, would have degraded quickly. The period would have implications in respect of the timing of its deposit.

35. The significant aspects of Mr Grosser’s evidence at the trial were put to Mr Jones in cross-examination. He universally responded by indicating that he did not disagree with what Mr Grosser had said. The principal difference is one of emphasis. 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. However, a fair analysis of his evidence would reveal that he still leaves open the possibility of secondary transfer and hinges the relative probability between primary and secondary transfer on determination of the surrounding circumstances. He and Mr Grosser are unified in the position that the surrounding circumstances are essential to determining the relative probability between primary and secondary transfer. Each correctly and appropriately conceded that those are matters outside his area of expertise. They are, in fact, a factual question for the jury.

36. The effect of Mr Jones’ evidence, its variance from the opinions expressed by Mr Grosser, and whether his evidence was properly described as fresh and compelling, was the subject of considerable debate in the hearing before me. In view of my ultimate conclusion, it is neither necessary nor desirable for me to determine these questions. However, his evidence is relevant to the assessment of the effect of other evidence concerning Ms Vass. In particular, I refer to the evidence that since the trial she has made a number of representations admitting knowledge of the relevant events.

A telephone conversation with Colin McLaren

37. Colin McLaren gave evidence before me on the hearing of the application. He was not involved in the trial. In evidence, he asserted that he is a former police officer, who worked for many years as a detective. His work included many investigations into serious crime, including murder. He now describes himself as an author, investigative journalist and documentary film consultant. His evidence was that in May 2016, he was hired to investigate and give a professional opinion in relation to Mr Chappell’s disappearance. He subsequently decided to research and write a book about the case.

38. In the course of his investigation, he had contact with certain persons who arranged for him to meet Ms Vass. He gave evidence that his first direct contact with Ms Vass was on 16 January 2017. That contact was by way of a conversation between Ms Vass and him over his mobile telephone. In his affidavit, he reports the verbatim conversation as follows:

“Meaghan:We were there on the yacht partying. I can’t remember but I have to think about it, Paul and Sam and me. There was a fight on the other yacht.

McLaren:Four Winds?

Meaghan:The old guy’s yacht, next to Paul’s.

McLaren:How’d you get onto the Four Winds?

Meaghan:I can’t swim, I didn’t swim. We got a dinghy.

McLaren:What happened next on board?

Meaghan:A fight. F**k. I saw it but I f**ked off. Took off.

McLaren:How?

Meaghan:In the dinghy, f**ked off.

McLaren:What happened to Paul and Sam?

Meaghan:Don’t know. They went back to Paul’s yacht. I took off.”

39. Mr McLaren gave evidence that he made contemporaneous notes of this conversation.

Ms Vass’s statutory declaration

40. Mr McLaren’s evidence was that his next meeting with Ms Vass was on 17 March 2017. He says that during the course of that meeting, Ms Vass expressed a willingness “to do an affidavit”.

41. Mr McLaren had subsequent meetings with Ms Vass at a hotel in Hobart on 17 and 18 April 2017.

42. On 21 April 2017, he drafted what he describes as “a plain paper statement about what Meaghan had initially told me about being on the Four Winds yacht with two men”. His evidence was that he presented this statement to Ms Vass, who required certain changes to be made. He made the changes and she signed the statement. He then gave the statement to a lawyer, Jeff Thompson. Mr McLaren says that he had no further role in drafting or handling the statement.

43. On the application, the applicant tendered a document which purported to be a statutory declaration by Ms Vass, signed on 27 April 2017. The inference is that this document reflected the statement which had been prepared by Mr McLaren. The document asserted that Ms Vass was “on the Four Winds yacht on the night of Australia Day 2009”. It further asserted that she was there “with people I will not name”, was scared and was not prepared to provide any further details. It further asserted that “the lady Sue Neill-Fraser was not on the yacht”. It does not, however, refer to the claim made to Mr McLaren in the telephone conversation of 16 January that she had seen a fight aboard the yacht.

44. In evidence before me, Ms Vass admitted that she had signed the statutory declaration, but denied that it was true. Her evidence was to the effect that she had been coerced into signing the document out of fear. She claimed that she had been threatened “to be put in the boot of a car over that statement, that is the reason why I signed that statement”. She alleged that the threat had been made by a person named Karen Keefe, and that Ms Keefe had made up the false declaration.

45. It was specifically put to Ms Vass by Mr Percy QC that she had in fact met Colin McLaren at the Best Western hotel, and had made a representation to him which was consistent with the representation contained in the statutory declaration. Her answer to this is contained in the following passage from the transcript:

MR PERCY QC: Do you remember meeting a person Colin McLaren?.....Yes I do.

Did you meet him at the Best Western hotel in (indistinct word)?......Yes I did.

And didn’t you tell him the same thing as you told (indistinct words).....Oh my God, no, he believed everything that Karen said. Him and Karen got together and made this statement up and made me sign it out of fear that I was going to be put in the boot. I can’t give you any more to work with please.”

46. 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.

47. In cross-examination by Mr Coates SC, Ms Vass said that Mr McLaren had said to her “that there would be money”. However, she continued to deny that she had told him that she had been on the yacht.

The 60 Minutes program

48. After reserving my decision in this application, the applicant applied to reopen her case for the purpose of presentation of some further evidence. I was told from the bar table, without objection, that the evidence relates to an interview conducted with Ms Vass by a journalist during the course of a 60 Minutes program that was aired on television recently. I was aware from media advertisements for the program that the interview was to be aired, but this did not occur in Tasmania and I have not seen the interview. There was no objection by the respondent to the reopening of the application or to the presentation of the evidence.

49. The evidence provided to me consists of an affidavit by Ms Vass. The affidavit purports to have been sworn on 25 February 2019. The affidavit contains direct and detailed admissions of Ms Vass’s involvement in events aboard the Four Winds on the relevant night. In particular, Ms Vass states that she was present on the yacht then 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.

Conclusion

50. The evidence proving each of the out of court representations by Ms Vass constitutes evidence for the purpose of the ground of appeal. This is not in dispute. At a new trial, Ms Vass would either give evidence consistent with the representations, or inconsistent with them. If she gave inconsistent evidence, as she did before me, then evidence proving the representations could well become admissible to prove a prior inconsistent statement, pursuant to s 108 of the Evidence Act. The representations would then be admissible for a hearsay purpose, that is to prove the truth of the facts asserted in the representation.

51. Further, there can be no question that the evidence is fresh within the meaning of s 402A(10)(a). The representations, to the extent that they were actually made, were not made until well after the trial. This also is uncontroversial.

52. The issue raised by the respondent is whether the evidence is compelling. The Director argues that Ms Vass’s out of court representations are not reliable, and hence, are not compelling. He points to Ms Vass’s denial of the truth of her statutory declaration in evidence before me, and raises many other issues that in his submission affect reliability. He does not challenge that the evidence is substantial and, in the context of the issues in dispute at the trial, would be highly probative of the case for the applicant. This is appropriate. The evidence satisfies both criteria. In particular, the facts asserted by Ms Vass in each representation support the applicant’s hypothesis that Mr Chappell died because of the actions of persons other than her. Such evidence is clearly directly relevant to an important issue at the trial, and, if accepted, would be highly probative of the applicant’s case.

53. The reliability of the evidence depends on whether it is credible and provides a trustworthy basis for fact-finding: Van Beelen. On the hearing of an application for leave, I am not required to make a final or positive determination about that question. The requirement for leave is that I am satisfied that the applicant has a “reasonable case to present to the court in support of the ground of appeal”. I would therefore have to be satisfied that the case, which includes such evidence, is a reasonable one to present in support of the ground. In practical terms, in the circumstances of this case, I would need to be satisfied that there is a reasonable possibility that the Court of Criminal Appeal would accept the said evidence as credible and providing a trustworthy basis for fact-finding. Clearly, I could not be so satisfied if the evidence was so lacking in credibility that there was no reasonable possibility of that conclusion being reached by the Court of Criminal Appeal. Otherwise, it does not appear to me that the question of credibility falls for my consideration on this application.

54. 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. 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.

55. In forming this conclusion, I have had regard to Ms Vass’s representations within the context provided by some of the other evidence presented by the applicant on this application. The principal piece of evidence providing such context, of course, is the location of Ms Vass’s DNA on the yacht, and what Mr Jones has now had to say about that DNA. Other evidence to a greater or lesser extent may also have some relevance in this respect. However, because of the view I have taken about Ms Vass’s representations, it is neither necessary nor desirable for me to determine whether any of the other evidence relied upon by the applicant might amount to fresh and compelling evidence. The only question for me under s 402A is whether leave should be granted. If I am satisfied that the conditions of leave are satisfied, then I must grant leave. Upon doing so, my jurisdiction on this application is exhausted. In particular, I have no authority to grant leave solely in respect of a particular piece of evidence or to attach any conditions to, or otherwise limit, the grant of leave. It would also be inappropriate and futile for me to express any view about questions which will, upon the grant of leave, become matters for the determination of the Court of Criminal Appeal.

56. Because the requirements for a grant of leave are satisfied, I am required to grant the application. Accordingly, leave is granted to the applicant to lodge a second appeal to the Court of Criminal Appeal against her conviction for the crime of murder on the ground that there is fresh and compelling evidence.